Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Watling v Commissioner of Police [2020] NSWCATOD 106 Hearing dates: On the papers Date of orders: 15 September 2020 Decision date: 15 September 2020 Jurisdiction: Occupational Division Before: Dr J Lucy, Senior Member Decision: The respondent's decision is affirmed. Catchwords: ADMINISTRATIVE REVIEW – Security industry – Licences – Where applicant convicted of offence, under firearms legislation, of failing to store ammunition separately from firearm - Where respondent revoked applicant's security licence – Whether revocation of licence was required by law – Whether offence of failing to store ammunition separately from firearm was an offence relating to the possession of a firearm Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Firearms Act 1996 (NSW) Firearms Regulation 2017 (NSW) Security Industry Act 1997 (NSW) Security Industry Regulation 2016 (NSW) Cases Cited: Feurstein v Commissioner of Police, New South Wales Police Force [2007] NSWADT 114 Joye v Beach Petroleum NL (1996) 67 FCR 275 Luk v Commissioner of Police, NSW Police [2019] NSWCATAP 23 Tooheys Ltd v Cmr of Stamp Duties (NSW) (1961) 105 CLR 602 Waugh Hotel Management Pty Ltd v Marrickville Council [2009] NSWCA 390 Texts Cited: None cited Category: Principal judgment Parties: Nigel Alan Watling (Applicant) Commissioner of Police (Respondent) Representation: Solicitors: Pogson Cronin Solicitors (Applicant) Office of the General Counsel, NSW Police Force (Respondent) File Number(s): 2020/00075442 Publication restriction: Nil REASONS FOR DECISION 1. The respondent ("the Commissioner") revoked the applicant's security licence after he was convicted of an offence. The offence was failing to store ammunition for a firearm separately from the firearm. 2. The Commissioner was required to revoke the applicant's licence if, broadly, he had committed an offence in the last ten years relating to the possession of a firearm. 3. The applicant contended that the offence related to storage of ammunition and not to possession of a firearm. 4. I have concluded that the applicant's offence relates to the possession of a firearm and have affirmed the Commissioner's decision. Background 1. The applicant has held a licence under the Security Industry Act 1997 (NSW) since the enactment of that legislation. Prior to the revocation of his licence, he held a Class 1AC security licence. He has been employed in the security industry for decades. 2. In January 2019, the applicant was observed to have a gas propelled air rifle stored in a safe with a magazine within it, and with five air rifle pellets in the magazine. Section 40(1)(d) of the Firearms Act 1996 (NSW) provides that the holder of a licence must comply with the requirement that "any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the receptacle containing any such firearm". 3. On 17 June 2019, the applicant entered a plea of guilty to the charge of not have approved storage in compliance with the requirements of s 40 of the Firearms Act. He was subsequently convicted of that offence. 4. By notice dated 30 January 2020, the Commissioner revoked the applicant's class 1AC security licence. 5. The applicant applied to the Tribunal for a review of that decision. Relevant law 1. The notice of revocation stated that the licence had been revoked under s 26(1A) of the Security Industry Act. Section 26(1A) provides that "[t]he Commissioner must revoke a licence where the Commissioner is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused." 2. Section 16(1)(a) of the Security Industry Act provides: (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: (a) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law, … 1. Clause 15 of the Security Industry Regulation 2016 (NSW) relevantly provides: 15 Offences and civil penalties that disqualify applicants (1) Prescribed offences: section 16 (1) (a) and (b) For the purposes of section 16 (1) (a) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales: (a) Offences relating to firearms or weapons An offence relating to the possession or use of a firearm, or any other weapon, committed under: (i) the law of any Australian jurisdiction, or (ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction), and being an offence that would (had the offence been committed under the law of an Australian jurisdiction) disqualify the person concerned from holding a licence under the Firearms Act 1996. 1. Section 11(5)(b) of the Firearms Act provides: A licence must not be issued to a person who— … (b) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or… 1. Clause 5(1) of the Firearms Regulation 2017 (NSW) relevantly provides: 5 Offences that disqualify applicants (1) For the purposes of sections 11 (5) (b) and 29 (3) (b) of the Act, the following offences are prescribed— (a) Offences relating to firearms or weapons An offence relating to the possession or use of a firearm or any other weapon, or a firearm part or ammunition, committed under— (i) the law of any Australian jurisdiction, or (ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction). 1. The Tribunal's task, when conducting a review of an administrative decision, "is to decide what the correct and preferable decision is having regard to the material then before it" including any relevant factual material and any applicable written or unwritten law (Administrative Decisions Review Act 1997 (NSW), s 63(1)). Consideration 1. The parties agreed that the Commissioner is required to revoke a person's licence if the person had been convicted, within the last ten years, in New South Wales of an offence under New South Wales and the offence would disqualify the person from holding a licence under the Firearms Act. 2. The only issue in dispute is whether the offence of which the applicant was convicted would disqualify him from holding a licence under the Firearms Act. More specifically, the dispute is whether failing to keep ammunition in a locked container which is kept separate from the receptacle containing any such firearm (contrary to s 40(1)(d) of the Firearms Act) is "[a]n offence relating to the possession … of a firearm" (within cl 15(1) of the Security Industry Regulation and cl 5(1) of the Firearms Regulation). 3. The applicant submitted: 1. An offence under s 40(1)(d) of the Firearms Act is an offence involving ammunition and its storage; it is not an offence "relating to" a firearm within cl 15(1)(a) of the Security Industry Regulation; 2. The offence does not relate to the possession or use of a firearm within cl 5 of the Firearms Regulation; 3. The circumstance that cl 5 of the Firearms Regulation specifically includes ammunition, whereas cl 15(1)(a) of the Security Industry Regulation does not, evinces a legislative intention that an offence relating to the possession of ammunition (such as the applicant's offence) is not a prescribed offence for the purposes of the security industry legislation; 4. The offence does not relate to the possession of a firearm (by contrast with ss 7A, 36(1) and 39(1) of the Firearms Act), but rather to the storage of a firearm. 1. The applicant's ultimate submission was that the Commissioner was not required to revoke his licence and the Commissioner's decision should be set aside. 2. For the reasons which follow, I find that an offence under s 40(1)(d) of the Firearms Act is an "offence relating to the possession or use of a firearm" within cl 15(1)(a) of the Security Industry Regulation. I accept the Commissioner's submission that the words "relating to" are generally words of broad import. 3. The term "relates to" was considered by the New South Wales Court of Appeal in Waugh Hotel Management Pty Ltd v Marrickville Council [2009] NSWCA 390. Campbell JA reviewed the relevant authorities at [44] and following. His Honour referred (at [45]) to Taylor J's judgment in Tooheys Ltd v Cmr of Stamp Duties (NSW) (1961) 105 CLR 602 at 620, where his Honour said: "the expression 'relating to' is extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified." 1. His Honour also referred (at [46]) to the judgment of Beaumont and Lehane JJ in Joye v Beach Petroleum NL (1996) 67 FCR 275 at 285, where their Honours referred to Taylor J's judgment in Tooheys then continued: "Other decisions of the High Court have acknowledged that, ordinarily, 'relates to' is a wide term, and that it will depend upon context whether it is necessary that the relationship be direct or substantial, or whether an indirect or less than substantial connection will suffice…" 1. The context in which the term "relating to" appears in cl 15(1)(a) of the Security Industry Regulation is consistent with it having a broad meaning. The Security Industry Regulation and Security Industry Act do not expressly state the objects or purposes of the legislation. However, it has been observed that the Security Industry Act "was designed with the clear intention of providing the community with confidence in a professional security industry, where competence, integrity and accountability are provided and maintained to a high standard" (Feurstein v Commissioner of Police, New South Wales Police Force [2007] NSWADT 114 at [11]; Luk v Commissioner of Police, NSW Police [2019] NSWCATAP 23 at [30]). Having regard to the purposes of the Security Industry Act, the term "relating to" in cl 15(1)(a) of the Security Industry Regulation should not be narrowly construed. 2. In my opinion, an offence of failing to store ammunition for a firearm separately from a receptacle containing the firearm is an offence "relating to" the possession of a firearm. Section 40(1) of the Firearms Act requires the holder of a category A or category B licence to comply with certain requirements. Section 8(1) provides that a category A and category B licence confer an authority on the licensee to possess or use a registered firearm of the kind to which the licence applies. Section 40(1), read in this context, provides for requirements which are referable to the authority conferred by the licence. That is, the storage requirements in s 40(1)(d) relate to the possession of the firearm; a person possessing a firearm as the holder of a category A or B licence must store it separately from the ammunition. 3. The circumstance that the offence "involves" ammunition and its storage (as the applicant submits) does not preclude it from being an offence relating to the possession of a firearm. An offence may relate to more than one thing. 4. It follows that I also consider that the offence of which the applicant was convicted is one "relating to" the possession or use of a firearm within cl 5 of the Firearms Regulation. 5. Contrary to the applicant's submission, the express reference to "ammunition" in cl 5 of the Firearms Regulation, and the absence of any such reference in cl 15 of the Security Industry Regulation, does not evince a legislative intention that an offence relating to the possession of ammunition is excluded from the offences in cl 15(1) of the Security Industry Regulation. There are difficulties in ascertaining the purpose of one regulation from words used in another regulation. Even if such an exercise were legitimate, the process of statutory construction must begin with the text of the relevant provision. I see no basis for reading down the words "offence relating to the possession or use of a firearm" in cl 15(1) of the Security Industry Regulation. 6. Finally, I do not accept the applicant's submission that the offence does not relate to the possession of a firearm (in light of ss 7A, 36(1) and 39(1) of the Firearms Act), but rather to the storage of a firearm. Whilst the Firearms Act provides for offences which use the language of possession, I do not consider that it follows that, in cl 5(1)(a) of the Firearms Regulation, the legislature intended only to refer to such offences by the expression "[a]n offence relating to the possession or use of a firearm or any other weapon, or a firearm part or ammunition." The choice of the words "relating to" indicates, rather, that it was intended to capture a broader range of offences. It is to be noted that such offences include those committed under any Australian law and some foreign laws. This strengthens the conclusion that the legislature did not intend to limit the offences to which cl 5(1)(a) applies to those which refer expressly to possession. The language captures offences which apply to the storage of firearms a licence holder is authorised to possess. 7. For these reasons, I consider that the Commissioner was required by s 26(1A) of the Security Industry Act to revoke the applicant's licence. If the applicant applied for a new licence, the application would be required by s 16(1)(a) of the Security Industry Act to be refused. That is because the applicant's offence is a prescribed offence, within cl 15(1)(a) of the Security Industry Regulation, being an offence relating to the possession of a firearm under a law of this State, committed within the last ten years and one that would disqualify the applicant from holding a licence under the Firearms Act. He would be so disqualified because the offence relates to the possession of a firearm, within cl 5(1) of the Firearms Regulation. 8. I have accordingly decided to affirm the Commissioner's decision. Orders 1. For these reasons I make the following order: 1. The respondent's decision is affirmed. ********** 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: 15 September 2020