Upton v Commissioner of Police, NSW Police [2004] NSWADT 202

CITATION: Upton v Commissioner of Police, NSW Police [2004] NSWADT 202 DIVISION: General Division APPLICANT PARTIES: Harold Upton RESPONDENT Commissioner of Police, New South Wales Police FILE NUMBER: 043241 HEARING DATES: 3/09/2004 SUBMISSIONS CLOSED: 09/03/2004 DATE OF DECISION: 09/16/2004

BEFORE: Montgomery S - Judicial Member APPLICATION: Weapons Prohibition Act - prohibited weapons - issue of permit - Prohibited weapons - issue of permit MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Firearms Act 1996 Weapons Prohibitions Act 1998 CASES CITED: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 McDonald v Director General of Social Security (1984) 1 FCR 35 APPLICANT REPRESENTATION: In person RESPONDENT P McLaughlin, solicitor ORDERS: The decision of the Commissioner of Police, New South Wales Police Service to revoke the permit of Harold Upton for the possession and use of prohibited weapons under the Weapons Prohibition Act 1998 is set aside.

REASONS FOR DECISION The Application 1 These proceedings relate to a decision dated 26 July 2004 purportedly made by a delegate of the Commissioner of Police, NSW Police Service ("the Commissioner") to revoke a Prohibited Weapons Permit held by Mr. Harold Upton. Mr. Upton immediately sought an internal review of the decision and shortly thereafter applied to this Tribunal for a stay of the revocation. 2 The matter was listed before the Tribunal's Deputy President on 11 August 2004 at which time she granted a stay of the Commissioner's determination and made directions for the filing of documents. The matter was listed for hearing on 3 September 2004 and proceeded on that day. 3 At the commencement of proceedings Mr. Upton raised a jurisdictional issue regarding the validity of the Commissioner's decision. He asserted that the person who made the decision did not hold a delegation to make such a decision. The legislation relevant to the permit is the Weapons Prohibition Act 1998 ("the Act"). The Commissioner has power to revoke a permit under section 18(2)(d) of the Act. Pursuant to section 41 of the Act the Commissioner may delegate that power and the delegate may sub-delegate the power. 4 It appears, but is not certain, that the purported delegate holds a delegation as a Refusal/Revocation officer under the Firearms Act 1996 but does not hold such a delegation under the Act. Mr. Upton argues that accordingly the decision maker was not a delegate of the Commissioner and the decision and all subsequent action by the Commissioner was ultra vires. He further contends firstly, that the purported decision was contrary to the policy and procedures set out by the Commissioner for such matters denying him procedural fairness; secondly that the purported decision was a discretionary decision, was contrary to the relevant police advice, and was not brought to his attention before being implemented, thereby denying him natural justice; and thirdly, that the purported decision was not supported by the facts, thereby denying him due process. Mr. Upton argues that the decision maker was aware of these contentions when the decision was made indicating that the decision was made in bad faith. 5 Mr. Upton argues that given the defects in the decision making process, the decision is invalid. Accordingly there is no decision that can be reviewed by the Tribunal. Decision on the jurisdictional issue 6 Section 18 of the Act provides that the Commissioner may revoke a permit in certain circumstances. Where the Commissioner takes such steps, the Tribunal has jurisdiction pursuant to section 35 of the Act which provides: " 35 Right to seek review from Administrative Decisions Tribunal A person may apply to the Administrative Decisions Tribunal for a review 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." 7 Section 41 of the Act provides: "41 Delegation (1) The Commissioner may delegate to a relevant person any of the Commissioner's functions under this Act or the regulations, other than this power of delegation. (2) A delegate may sub-delegate to a relevant person any of the functions delegated by the Commissioner if the delegate is authorised in writing to do so by the Commissioner. (3) In this section, relevant person means: (a) a police officer or any other member of the Police Service, or (b) a public servant, or (c) any other person prescribed by the regulations." 8 It is not disputed that the decision maker was eligible to receive a delegation. However, Mr. Upton argues that a delegation is given to persons with sufficient experience to be able to make the decisions authorised by the delegation and that if such an experienced person had turned their mind to the circumstances of this matter, they would not have reached the same conclusion. 9 In my view there is merit in Mr. Upton's argument however the procedural defects to which he points are addressed by section 6 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") which states: "6 What is a decision? (1) General meaning A decision includes any of the following: ... (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument, … (g) doing or refusing to do any other act or thing. (2) Decision made under an enactment For the purposes of this Act, a decision is made under an enactment if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enactment. (3) Decisions made without power For the purposes of this Act (and without limiting subsection (2)), a decision that purports to be made under an enactment is taken to be a decision made under the enactment even if the decision was beyond the power of the decision-maker to make it. …" 10 The circumstances of this matter fall squarely within what is envisaged by section 6 of the ADT Act. In my opinion it follows that the decision under consideration is to be taken to be a decision made under the Act for the purposes of the review by the Tribunal. Indeed, procedural fairness requires that some avenue be available to persons who have been the subject of ultra vires decisions in order that they may challenge the decision. That avenue is not necessarily to this Tribunal, however, in the present circumstances I am satisfied the Tribunal is able to hear and determine this application. The Tribunal's powers in determining an application for a review are set out in section 63 of the ADT Act as follows: "63 Determination of review by Tribunal (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal." Nature of proceedings 11 The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as to either confirm the original decision, vary it, or set it aside and substitute another. "The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made" (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77). 12 These are not adversarial proceedings in which Mr. Upton carries an onus of proof. Mr. Upton, by making the application, triggers a process of merits review by the Tribunal. Mr. Upton does not take on the responsibility of having to prove a case, nor does he cause the Commissioner to have to prove a case. Mr. Upton and the Commissioner are before the Tribunal as parties by virtue of section 67(2) of the ADT Act. 13 The Tribunal 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. It makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct (McDonald v Director General of Social Security (1984) 1 FCR 354 at 357). 14 When there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be satisfied to the civil standard of proof, that is, on the balance of probabilities (McDonald at 357). Applicable Legislation 15 Section 3 of the Act provides: "3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm that the possession and use of prohibited weapons is a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety by imposing strict controls on the possession and use of prohibited weapons. (2) The specific objects of this Act are as follows: (a) to require each person who possesses or uses a prohibited weapon under the authority of a permit to have a genuine reason for possessing or using the weapon, (b) to provide strict requirements that must be satisfied in relation to the possession and use of prohibited weapons, (c) to provide an amnesty period to enable the surrender of prohibited weapons." 16 Section 8 of the Act provides: "8 Permit categories and authority conferred by permit (1) The categories of permits and the authority they confer are as follows: Authorises the holder of the permit to possess or use a prohibited weapon of the kind specified in the permit, but only for the purpose established by the holder as being the genuine reason for possessing or using the prohibited weapon. Authorises the holder of the permit, and any authorised employee, to possess, buy, sell and manufacture prohibited weapons of the kind specified in the permit, but only in the course of carrying on business as a weapons dealer and only at the premises specified in the permit (or at such other premises as may be approved). Authorises the holder of the permit, and any authorised employee, in the course of carrying on business as a theatrical weapons armourer: (a) to possess, use, buy, sell and manufacture prohibited weapons of the kind specified in the permit, and (b) to supervise and train persons who are involved in a cinematographic, television or theatrical production in the use of prohibited weapons to which the permit relates. The authority conferred by a theatrical weapons armourer permit also authorises those persons who are involved in the cinematographic, television or theatrical production concerned to possess and use prohibited weapons to which the permit relates, but only while under the supervision of the holder of the permit or an authorised employee. (2) The regulations may prescribe different types of general permits. (3) The authority conferred by a permit is subject to the regulations." 17 Section 10 of the Act provides "10 Issuing of permit (1) The Commissioner may, after considering an application for a permit: (a) issue a permit to the applicant, or (b) refuse to issue a permit to the applicant. (2) A permit must not be issued unless: (a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of prohibited weapons without danger to public safety or to the peace, and (b) the applicant (including such authorised employees as are nominated by the applicant) has completed, to the satisfaction of the Commissioner, such training and safety courses as may be approved in relation to the kind of permit sought, and (c) the Commissioner is satisfied that such storage and safety requirements as may be approved (either generally or in a particular case) are capable of being met by the applicant. (3) A permit must not be issued to a person who: (a) has, within the period of 10 years before the application for the permit 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 (b) is subject to an apprehended violence order or who has, at any time within 10 years before the application for the permit was made, been subject to such an order (other than an order that has been revoked), or (c) is subject to a recognisance, granted in New South Wales or elsewhere, to keep the peace, or (d) is subject to a weapons prohibition order. (4) The Commissioner may refuse to issue a permit if the Commissioner considers that the issue of the permit would be contrary to the public interest. (5) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a permit. (6) Subsection (3) extends to offences that have been committed, or to apprehended violence orders that have been made, or to recognisances that have been granted, before the commencement of this section." 18 Section 18 of the Act provides: "18 Revocation of permit (1) A permit is automatically revoked if the permit holder becomes subject to a weapons prohibition order or an apprehended violence order. (2) A permit may be revoked: (a) for any reason for which the permit holder would be refused a permit, or (b) if the permit holder: (i) supplied information in, or in connection with, the application for the permit which was (to the permit holder's knowledge) false or misleading in a material particular, or (ii) contravenes any provision of this Act or the regulations, whether or not the permit holder has been convicted of an offence in respect of the contravention, or (iii) contravenes any condition of the permit, or (c) if the Commissioner is of the opinion that the permit holder is no longer a fit and proper person to hold a permit, or (d) for any reason the Commissioner considers sufficient in the circumstances, or (e) for any other reason prescribed by the regulations. (3) The Commissioner may revoke a permit by serving personally or by post on the permit holder a notice stating that the permit is revoked and the reason for revoking it. (4) The revocation of a permit by such a notice takes effect when the notice is served or on a later date specified in the notice. (5) The Commissioner may, by serving a further notice on the holder of a permit, cancel a notice revoking the permit before the notice takes effect. 19 Surrender and seizure of prohibited weapons when permit suspended or revoked (1) If a permit is suspended or revoked, the person to whom it was issued must immediately surrender to a police officer: (a) any prohibited weapon in the person's possession, and (b) the permit. Maximum penalty: 50 penalty units or imprisonment for 12 months, or both. (2) A police officer is authorised to seize any prohibited weapon in the possession of a person if that person's permit is suspended or revoked." 19 The issue for this Tribunal is: what is the correct and preferable decision? The decisions to be made are whether Mr. Upton is a fit and proper person to hold a prohibited weapons permit under the Act or whether it would be contrary to the public interest for him to hold such a permit. The Commissioner's Case 20 The Police Service's file was put in evidence and the Commissioner relied on the documents contained within that file. The Commissioner argues that Mr. Upton is not a fit and proper person to hold a permit and that it would be contrary to the public interest for him to hold a permit. Mr McLaughlin argues that in determining these issues it is necessary to consider the principles and objects of the Act as set out in section 3. He submits that those principles and objects cannot be furthered by Mr. Upton holding a prohibited weapons permit. 21 The reasons provided in relation to the decision stated: "Notwithstanding that convictions for two counts of `Common Assault - T2' were quashed under appeal at Goulburn District Court on 8 August 2003, concerns are held regarding recorded incidents of allegations of intimidation and domestic violence. As such, I am satisfied that there is sufficient reason to revoke your permit and that it would not be in the public interest for you to continue to hold a permit authorising the possession and use of prohibited weapons. My understanding of the applicable law is that: Section 18(2)(d) of the Weapons Prohibition Act 1998, provides that the Commissioner of Police may revoke a permit for any reason the Commissioner considers sufficient in the circumstances. Section 18(2)(a) of the Weapons Prohibition Act 1998, provides that a permit may be revoked for any reason for which the permit holder would be refused a permit. Section 10(4) of the Weapons Prohibition Act 1998, states that the Commissioner of Police may refuse to issue a permit if the Commissioner considers that the issue of the permit would be contrary to the public interest." 22 The recorded incidents of allegations to which these reasons referred extend back over several years. These included alleged incidents of assault including several involving Mr. Upton's estranged wife and an incident of alleged assault with a stun gun on a work colleague. Other incidents involved improper storage and use of prohibited weapons without the appropriate permits. 23 The incident which lead to action in relation to Mr. Upton's permits was an alleged assault by Mr. Upton on a process server. That incident was said to have taken place on 20 May 2001. Mr. Upton was subsequently charged and convicted in relation to the incident however he successfully appealed the conviction. The Commissioner's delegate's reasons referred to above make reference to that appeal. 24 The Commissioner relies on the COPS events records and records of statements contained within the Police Service's file. The Commissioner did not produce any other evidence in support of the assertion made in relation to these incidents. Mr. Upton's case 25 Mr. Upton presented evidence on his own behalf. His case is essentially that there is no reasonable basis for the Commissioner to revoke the permit. He gave uncontested evidence in relation to each of the incidents on which the Commissioner relies. He asserts that his evidence in relation to the 20 May 2001 incident was the basis of his successful appeal and therefore should not be disputed by the Commissioner's delegate. 26 Several written testimonials were provided in support of Mr. Upton's application. Those testimonials support the position put by Mr. Upton that he is honest and reliable and a man of great integrity. Reasons and decision 27 On the evidence before me I am not satisfied that the views held by the Commissioner's delegate are reasonable. Mr. Upton provided a reasonable explanation with respect to those incidents where no charges had been laid against him. His evidence was not challenged. Mr. Upton correctly asserts that the alleged assault on 20 May 2001 has been the subject of proceedings in both the Local and District Courts where he was ultimately successful. There is no reasonable basis on which the Commissioner's delegate can go behind that decision. 28 I note that the alleged victim of the stun gun incident has supplied a testimonial in support of Mr. Upton's application. This is not seriously challenged. 29 There is insufficient evidence on which I could reach the view that Mr. Upton is not a fit and proper person to hold a permit. Similarly there is no reasonable basis on which I could conclude that it would be contrary to the public interest for Mr. Upton to hold the permit. 30 Accordingly, it is my view that the decision by the Commissioner's delegate should be set aside. Orders 1. The decision of the Commissioner of Police, New South Wales Police Service to revoke the permit of Harold Upton for the possession and use of prohibited weapons under the Weapons Prohibition Act 1998 is set aside.