Tukel v Commissioner of Police, New South Wales Police Force

NCAT Administrative and Equal Opportunity|2020-02-21

REASONS FOR decision

This is an interlocutory motion by the respondent Commissioner of Police seeking an order declaring that the tribunal has no jurisdiction to entertain the applicant's application for review of a weapons prohibition order (WPO).
As the applicant in this motion is the respondent in the substantive application, and vice-versa, these reasons will refer to the parties as "Mr Tukel" and "the Commissioner" respectively, in order to avoid confusion. Mr Tukel's legal representative is Mr Cunningham and the Commissioner's is Mr Mantziaris.
On 4 September 2018, the Commissioner made a firearms prohibition order (FPO) under s 73(1) of the Firearms Act 1996 against Mr Tukel on the grounds that he had been issued with four consorting warnings in 2014 and 2015, and that he was associated with the Comanchero Outlaw Motor Cycle Gang, which is an organized criminal group.

Applicable legislation

Section 33 of the WP Act provides for the making of weapons prohibition orders: 33 Commissioner may make weapons prohibition order (1) The Commissioner may make an order prohibiting a person from having possession of, or from using, any prohibited weapon if, in the opinion of the Commissioner, the person is not fit, in the public interest, to be permitted to have possession of a prohibited weapon. (2) Without limiting the generality of subsection (1), such an order may be made in respect of any person who had possession of or used a prohibited weapon immediately before the weapon was seized under this or any other Act. (3) A weapons prohibition order takes effect when it is served personally on the person to whom it is directed.
Section 35(1) of the WP Act provides as follows: 35 Administrative review by Civil and Administrative Tribunal of certain decisions (1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the following decisions: (a) the refusal or failure by the Commissioner to issue a permit to the person, (b) a condition imposed by the Commissioner on a permit issued to the person, (c) the revocation or suspension of a permit issued to the person.
The issue in this interlocutory motion is whether this tribunal has jurisdiction to review the making by the Commissioner of a WPO. It appears to be a case of first impression.

Applicant's submissions

No evidence was adduced, as the motion is to be decided on the basis of the written submissions filed by both parties. Mr Tukel's contentions that the tribunal does have jurisdiction to review a WPO are set out in a detailed 29- page document and it is convenient to consider them seriatim.

Revocation power

Mr Tukel's submissions begin by pointing out that both prohibition orders had relied on the same factual material. He had put to the Commissioner that in the event that he was successful in seeking a review of the FPO and that as a result the FPO was withdrawn or revoked, the Commissioner ought to then withdraw or revoke the WPO, as the same material was used to formulate the decision to impose a WPO. The Commissioner had replied that he would not do so. As a successful review of the FPO would still leave an operating WPO in place, he had sought review of both of the FPO and the WPO.
The Firearms Act and the WP Act both authorize prohibition orders using the same form of construction, in s 73 of the Firearms Act and s 33 of the WP Act respectively, but while s 73(3) confers a wide discretion to revoke an FPO "at any time for any or no stated reason", the WP Act is silent on whether the Commissioner has the same power to revoke a weapons prohibition order at any time. That could mean, it was submitted, that once an order is served, it remains in force ad infinitum.
I do not think that interpretation is warranted. True it is that the legislation gives the Commissioner no express power to revoke a WPO. But that is not the end of the matter. For the Interpretation Act 1987 imports a power to amend or repeal any order made under statutory authority. Section 43(2) of that Act provides as follows: If an Act or statutory rule confers a power on any person or body to make an order (whether or not the order must be in writing), the power includes power to amend or repeal any order made in the exercise of that power.
A WPO is literally an "order" for the purposes of the section. Nothing in s 43 suggests that the order sought to be amended or repealed must be of a legislative character, rather than an executive act such as a WPO.
Other things being equal, that appears to be the position under the general law also: DC Pearce, RS Geddes, Statutory Interpretation in Australia (8th edn. 2014, Lexis Nexis Butterworths) p 307.
Further support for that interpretation is to be found in the principle that legal interpretation should lean in favour of fairness: "There is a general presumption that the legislature does not intend to achieve a result that is manifestly unfair, unreasonable or arbitrary": Craies on Legislation, 11th edn, 2017, 19.1.5.
Lord Diplock explained the presumption in Hillingdon London Borough Council v Commissioner for Racial Equality [1982] AC 779, 787: Where an Act of Parliament confers upon an administrative body functions which involve its making decisions which affect to their detriment the rights of other persons or curtail their ability to do as they please, there is a presumption that Parliament intended that the administrative body should act fairly towards those persons who will be affected by their decision.
Most Australians would consider it unfair that a person should remain subject to a WPO, with its concomitant liability to warrantless search and seizure under ss 20 to 21A of the Law Enforcement (Powers and Responsibilities) Act 2002 (see further below), long after the circumstances that caused the Commissioner to form the opinion that the person was not fit in the public interest to possess a prohibited weapon had ceased to exist. As at present advised, therefore, I am of the view that the Commissioner (and, on review, this tribunal) have the power, and perhaps a duty, to revoke a WPO if they no longer hold the opinion required by s 33(1).
The submissions note that the Commissioner relies on Uzelac v Commissioner of Police, New South Wales Police Service [2004] NSWADT 34, [26], which decided that the Commissioner's decision to suspend a licence was not a decision to impose a condition on the licence and thus was not reviewable as such, but contend that while the firearms and prohibited weapons legislation might have given specific consideration to reviewability in particular cases, it had "not necessarily been logical and objective but rather at times reactive, spontaneous and politic in its consideration and drafting". How far that proposition assists Mr Tukel will fall for determination later in these reasons.

Mr Tukel's history of firearms legislation

The submissions then argue that the WPO issued against Mr Tukel was the product of a current of legislative evolution balancing the enhancement of public safety against a response to "certain political and electorate influences". The genesis of the legislative intention for the WPO lay with the firearms legislation and its history. The submissions then proceed to give a detailed and comprehensive history of New South Wales firearms and dangerous weapons legislation. It is too lengthy to incorporate in these reasons, but a brief summary may help to elucidate Mr Tukel's line of reasoning.
The following are the main legislative milestones referred to in the submissions: 1. Police Offences Act 1901: included discharging a firearm without lawful cause or carrying firearms on Sunday. 2. Proposed Gun Licence Bill 1914: not proceeded with and no details available. 3. Gun Licence Act 1920: using a firearm to require a licence issued by the clerk of the Court of Petty Sessions. A person refused a licence could appeal to the Court of Petty Sessions. 4. Pistol Licence Act 1927: the 1920 Act, described in Parliament as "a piece of tyranny" that "broke down", was repealed and replaced with a new statute requiring the licensing of pistols only. An applicant who was refused a licence could appeal to the Court of Petty Sessions. A new power to revoke a licence was added. 5. Firearms Act 1936: the definitions of "pistol" and "firearm" were widened and applicants for pistol licences had to be at least 18 years of age. An applicant for a dealer licence was required to satisfy the issuing police officer that he or she was "a fit and proper person" to be a registered pistol dealer. The rights of appeal contained in the 1927 Act were retained. 6. Firearms Act 1946: prohibited machine guns, submachine guns and hand grenades. Unsuccessful applicants for pistol licences retained the right of appeal to the Court of Petty Sessions. 7. Firearms and Dangerous Weapons Act 1973: consolidated and strengthened the firearms and weapons legislation, while "being attentive to the preservation of rights of legitimate users". The Act introduced for the first time the concept of "firearms prohibition order". The right of appeal for a person "aggrieved" applied "only if" the grievance was one of 11 prescribed circumstances. 8. 1985 amendments to the Firearms and Dangerous Weapons Act: all firearms users to hold a licence and all firearms to be registered. The legislation was a major issue in the March 1988 state election and the incoming government repealed the existing act, replacing it with three cognate enactments, the Firearms Act, Prohibited Weapons Act and Crimes (Firearms) Amendment Act. The requirement for long arms to be registered was repealed. On 2 March 1989, the Minister, Mr Fahey, explained that "a cornerstone of this approach has been to have separate bills in regard to firearms and prohibited weapons to clearly identify the Government's policy that recognizes a substantial difference between the regulation of legitimate firearms and the need for strict controls and substantial penalties in regard to weapons that are prohibited". A right of appeal to the Local Court against the making of an FPO was provided. 9. Firearms Act 1996: Firearms Act 1989 repealed and replaced with the Firearms Act 1996, which implemented the resolutions of the Police Ministers' Council providing for uniform firearms laws across all Australian jurisdictions. All firearms provisions in the Prohibited Weapons Act 1989 were removed and incorporated into the new Firearms Act. 10. Weapons Prohibition Act 1998: provided mandatory criteria for the issue of a prohibited weapon permit.
Also relevant, the submissions continued, was the interaction of firearms and weapons legislation with more recent legislation, including the new s 74A inserted into the Firearms Act by the Firearms and Criminal Groups Legislation Amendment Act 2013 and the search and seizure powers conferred in relation to suspected breaches of a number of Acts, including the WP Act, by the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA).
The Ombudsman's Review of Police Use of the Firearms Prohibition Order Search Powers Section 74A of the Firearms Act 1996 in 2016 had found a lack of clarity in police understanding of when they might conduct in the FPO search on an FPO subject. A total of 269 person searches had been conducted over what appeared to be an erroneous application of the FPO search powers and, consequently, the searches might have been unlawful. Mr Tukel submitted that a WPO subject could therefore be subjected to similar attention. "Such innocent misunderstandings," he argued, "would give rise to any citizen to seek a review of a weapons prohibition order issued without the individual ever seeking a permit for a prohibited weapon or ever charged with an offence under the Weapons Prohibition Act".
A review of legislation in the other states and territories indicated that none other than New South Wales had the equivalent of a weapons prohibition order that was not reviewable on appeal. That would place New South Wales at odds with the uniform position of the other states and territories. If the declared intention of the legislation was to accord with the Australian Police Ministers' Council's resolutions and agreements of prohibited weapons to have uniform legislation covering prohibited weapons, then the legislative intent was for a weapons prohibition order to be subject to review.
In my view that contention does not greatly assist Mr Tukel's position. Mr Cunningham's own survey of the legislation and the other states and territories itself shows that, while for practical purposes firearms and weapons legislation is uniform across the Commonwealth, there are still noticeable differences of approach. For example, Tasmania, the Northern Territory and the Australian Capital Territory do not appear to have any provision for prohibition orders. Victoria has no provision for a WPO. Even if the legislation were intended to be absolutely identical across jurisdictions, which clearly it is not, the absence of a WPO review in New South Wales only would be an insufficient basis for implying such a power when none was provided by the Act.
Similarly, Mr Tukel submits that his historical review of New South Wales firearms and weapons legislation leads to the conclusion that an appeal against a WPO lies to the tribunal: "The continual thread of the legislative intent is that there should be an avenue for review by persons aggrieved by various decisions made under the firearms and weapons prohibition cognate bills".
What his survey shows is legislative policies alternating between liberality and restriction. The Police Offences Act 1901 imposed minimal controls, reflecting a more relaxed attitude that may have found expression in Henry Lawson's 1907 poem Every Man should Own a Rifle and have Cartridges in Store. Then followed the Lang government's 1920 legislation requiring all shooters to be licensed, followed by the repeal of that Act by the 1927 Act that required only pistols to be licensed, then the prohibition of certain classes of automatic and other weapons in 1946, the introduction of FPOs in 1973, the requirement in the 1985 amendments that all shooters be licensed and all firearms registered, followed in 1989 by the repeal of the requirement for long arms to be registered, followed in 1996 by the present Firearms Act and in 1998 by the present WP Act.
The legislative history does show a trend after 1920 towards providing a right of review against firearms licensing decisions, including FPOs. That does not mean, however, that the Legislature intended to provide review rights in respect of prohibited weapons and that the omission was simply a drafting oversight. The submissions themselves refer to the Minister's comments in the 1989 debates referring to "a substantial difference between the regulation of legitimate firearms and the need for strict controls and substantial penalties in regard to weapons that are prohibited". For a remedy to be implied when Parliament has not provided it would require a legal foundation in legislation or the common law, or both, such as exists in respect of the power to revoke a WPO discussed above, which is based on the Interpretation Act and the common law.
It should also be noted that the firearms and weapons legislation has received regular parliamentary attention in recent years. If the omission of a right of review in this tribunal for WPOs were a mere drafting oversight, one would expect that it would have been noticed and remedied.
Nor does Davies v Smith [2019] NSWSC 700 assist Mr Tukel's position. In that case (at [30]) the learned judge wrote, "On 25 May 2017, Detective Inspector Kehoe issued a Weapons Prohibition Order (also known as a Firearms Prohibition Order, or FPO) (WPO) pursuant to s 33(1) of the Weapons Prohibition Act 1998…." While her Honour does appear to treat the two types of orders as synonymous, nothing turned on the point and it appears to have been purely an aside per incuriam, hardly a surprising circumstance given the legislation's complexity. The police searches in question were conducted pursuant to the WP Act, not the Firearms Act, and the Firearms Act does not appear in the report's list of legislation cited in the case.

Cognate legislation and other matters

Next, Mr Tukel submits that the Firearms Act and the WP Act are cognate legislation and that the Commissioner's powers to issue FPOs and WPOs "are seen to act together and such issuance should be dealt with by way of review together". He cited a number of cases in support of that proposition. In "R" v New South Wales Commission for Children and Young People [2002] NSWIRComm 101, [110], [113], it was held that in cognate legislation the meaning of a definition would be expected to be the same in both enactments. In R v Edigarov [2001] NSWCCA 436, [30], Wood CJ had said that "In accordance with well-established principles of statutory interpretation it is permissible to refer to cognate legislation as far as that may throw light on any ambiguity". To the same effect were Comandate Marine Corp v The Ship "Boomerang I" [2006] FCAFC 106, [27], and Byrne v Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153, [132], but in the latter case only "if the same word is used in a subsequent statute and in a similar context". AQO v Gregory Pearce MLC [2014] NSWCATAD 210 it was held that where the phrase was defined in one statute but not in a cognate statute, the same definition and could be applied to the latter enactment.
Assuming that the Firearms Act and the WP Act are cognate enactments, those cases do not take the matter further. The present application does not involve the construction of a word or phrase that appears in both Acts or any expression containing any ambiguity. It involves a right of review that is conferred on a class of persons covered by one enactment, but is not conferred on the corresponding class of persons covered by a different enactment. There is accordingly no language to which cognate legislation principles could apply.
As Mr Mantziaris on behalf of the Commissioner pointed out, it is not unusual for a regulatory statute to confer merits review or judicial review jurisdiction in respect of some administrative decisions but not others. In Commissioner for Fair Trading v Cruz [2009] NSWADTAP 51, [47] - [52], the Appeal Panel accepted that the recording on a public register of reprimands against the directors of a building company could not be reviewed by the tribunal, but decisions based on the same facts made against the company could be reviewed. Although considering that result undesirable, the panel refused to create a jurisdiction where such a jurisdiction had not been conferred.
Similarly, in Uzelac (at [25], [26]), the tribunal concluded that while a decision by the Commissioner to revoke a licence was reviewable, a decision to suspend a licence was not. Further, as was noted above, there could be policy reasons why the Legislature would choose to grant a right of review in the case of an FPO but not of a WPO.
Mr Tukel also submitted that the statement in s 35(1) of the WP Act that a person "may apply" for review of specified decisions did not restrict the classes of reviewable decisions, which would only be the case if restrictive terms such as "only if" had been used. The phrase is referring, however, to a person's choice whether or not to apply for review. It does not relate to the classes of decisions that may be reviewed. Section 35(1) unambiguously spells out three classes of reviewable decisions and leaves no flexibility in the matter. Neither the tribunal nor anyone else has any power to go beyond those three categories.
Mr Cunningham's submissions on behalf of the Mr Tukel conclude by pointing out that the Minister for Police had stated in the Legislative Assembly in 1997 that the commission that reported on the setting up of this tribunal had as one of its starting points that "Any person adversely affected by an official action should be able to question the action simply, cheaply and quickly". While that was undoubtedly one of the guiding principles behind the tribunal's establishment, NCAT remains a statutory creation that holds only those powers that the Legislature has conferred on it.
While those submissions make a reasonable historical and rational case for a right of review for persons subject to a WPO (though not a case that is beyond debate), especially when, as here, the same factual material is relied on for the WPO as for the related FPO, they fail to establish that such a right exists. Thus, in so far as the application for review relates to the WPO, this tribunal has no jurisdiction to entertain it.

Order 1. Declaration that the tribunal has no jurisdiction to entertain an application to review the making of a weapons prohibition order.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 February 2020

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