Osborne -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 224

CITATION: Osborne -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 224 DIVISION: General Division APPLICANT PARTIES: Leslie Paul Osborne RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 023170 HEARING DATES: 28/10/2002 SUBMISSIONS CLOSED: 10/28/2002 DATE OF DECISION: 11/06/2002

BEFORE: Higgins S - Judicial Member APPLICATION: Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit - Jurisdiction MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Firearms (General) Regulation 1997 Firearms Act 1996 CASES CITED: Minister for Fisheries v Sneesby & Anor [2001] NSWADTAP 33 APPLICANT REPRESENTATION: A Hatcher, barrister RESPONDENT D Godwin, barrister ORDERS: The Tribunal has no jurisdiction to hear Mr Osborne's application.

BACKGROUND 1 On 5 August 2002, Mr Osborne, a licensed firearms dealer, applied to the Tribunal for a review of a decision by a delegate of the Commissioner ("the Commissioner") to "refuse" his application for an "additional dealership address to sell firearms". 2 Mr Osborne had written to the Commissioner on 3 June 2002 stating: "I would like to make application for an additional dealership address to sell firearms etc under my existing licence…" 3 Mr Osborne is and has at all times been a licensed firearms dealer under the Firearms Act 1996 ("the Firearms Act"). This licence authorises him to buy and sell firearms at premises located at 14 Carey Bay Shopping Centre, Laycock Street, Carey Bay. The additional dealership address Mr Osborne wanted added to his licence was for the premises at 24 Newton Street, Broadmeadow ("the new premises"). According to his letter he had organised a police inspection of the new premises and was given the appropriate certificate of approval. He also proposed to use the same employees who were attached to his existing licence. 4 On 19 July 2002, the Commissioner responded by letter to Mr Osborne's application. In that letter the Commissioner stated the following: "After conducting a full review of all the practical and legal implications of your request, as the Commissioner's delegate I advise you that the Firearms Registry will not amend your current firearms dealers licence to include a further premises or location. I draw your attention to s.3(1)(b)(i), 3(2)(d) and 19(1) of the Firearms Act 1996." 5 The letter went on to state: "The Registry has approved a second Firearms Dealers Licence for your new premises. That licence is being processed and will be mailed out to you on Monday, 22 July 2002. The continuance of that licence is subject to your paying the appropriate fee of $500.00. I believe you currently have a $25.00 credit with the Registry". 6 Accordingly, the Commissioner gave approval for Ms Osborne to be issued with a second firearms dealers licence in respect of the new premises. Mr Osborne has in the meantime commenced business at the new premises under his second licence. However, he remains dissatisfied as the two separate licences causes him administrative and taxation difficulties. It is his contention that the Commissioner has power to authorise more than one premises to be attached to a firearms dealers licence and that the Commissioner has "failed" or "refused" to exercise that power. 7 A preliminary issue in Mr Osborne's application is the question of whether the Tribunal has jurisdiction to review the decision which Mr Osborne seeks review of. In accordance with directions given by the President of the Tribunal, Mr Osborne had identified the decision to which he sought review as the decision of the Commissioner to decline to endorse his current licence to include the new premises. It was further stated that such an endorsement was a "condition" of Mr Osborne's licence and was thereby reviewable under s.75(1)(b) of the Firearms Act. 8 At the hearing, Mr Hatcher, on behalf of Mr Osborne, raised an additional ground of review in respect of this decision, namely - a review under s.75(1)(g) of the Firearms Act by virtue of Clauses 117(1)(a) and 32(1) of the Firearms (General) Regulations 1997 ("the Firearms Regulations"). RELEVANT LAW 9 The Tribunal's power or jurisdiction to review a reviewable decision is set out in s.38 of the Administrative Decisions Tribunal Act, 1997 ("the ADT Act"). That section, so far as is relevant to this application provides: "38(1) The Tribunal has jurisdiction under an enactment to review a decision (or a class of decisions) if the enactment provides that applications may be made to it for a review of any such decision (or class of decisions) made by an administrator: (a) in the exercise of functions conferred or imposed by or under the enactment, or (b) in the exercise of any other functions of the administrator identified by the enactment. (2) Nothing in sub-section (1) enables jurisdiction to review a decision to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by an Act (other than this Act)". 10 The term "enactment" is defined in s.5 of the ADT Act to mean an Act other than the ADT Act. 11 Accordingly, the Tribunal's jurisdiction to review a decision of the Commissioner or his delegate in relation to a firearms licence is found in the Firearms Act. 12 Section 75 of the Firearms Act makes provision in this regard and so far as is relevant provides as follows: "75(1) A person may apply to the Administrative Decisions Tribunal for a review of any of the following decisions: (a) the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person, (b) a condition imposed by the Commissioner on a licence or permit issued to the person, … …….. (g) a decision made under the regulations concerning the person that belongs to a class of decisions prescribed by the regulations for the purposes of this paragraph". (2) Despite sub-section(1), a regulation referred to in sub-section (1)(g) may limit the class of persons who may make an application for a review of a decision referred to in that paragraph". 13 Clause 117(1)(a) of the Firearms Regulations provides that a decision of the Commissioner under Clause 32 of "refusing an application to change the premises to which a firearms dealer licence relates is a decision for the purpose of an application to the Tribunal under s.75(1)(g) of the Firearms Act". 14 Clause 32(1) of the Firearms Regulations provides that: "The holder of a firearm dealer's licence may apply to the Commissioner to change the premises to which the licence relates" (underlining added). 15 Section 8 of the Firearms Act prescribes various licence categories and the nature of the authority that is conferred by each category of licence. This section includes the category of "firearms dealer" licence, which authorises the licensee: "to possess, manufacture, buy, sell, transfer, repair, maintain or test, in the course of carrying on the business of a firearms dealer, and only at the premises specified in the licence, any firearm to which the licence applies, and to posses, manufacture, buy or sell ammunition for those firearms" (underlying added). 16 Clause 34(1) of the Firearms Regulations provides that the Commissioner is not to issue a firearms dealer licence, which authorises a firearm dealer to carry on business at specified premises unless the Commissioner is satisfied that the applicant is carrying on or proposes to carry on the business of a firearms dealer at those premises and that those premises are suitable for that purpose. Clause 34(2) sets out the matters to which the Commissioner is to have regard to in determining whether premises are suitable or not. These include matters such as the type of firearms to which the licence relates, the security of the premises and the adequacy of safes and strongrooms for the safe keeping of firearms. SUBMISSIONS 17 Both parties made written and oral submissions. (a) The Respondent's Submissions 18 Mr Godwin, for the Commissioner, submitted that the letter in response to Mr Osborne's application contained only one decision. That decision, was the granting of a second firearms dealer's licence in respect of the new premises. And no provision was made in the Firearms Act for the Tribunal to review such a decision. 19 The letter, in Mr Godwin's submissions, did not otherwise evidence any reviewable decision by the Commissioner. In this regard it was submitted that the Tribunal should apply the principles stated in Minister for Fisheries v Sneesby & Anor [2001] NSWADTAP 33 that conditions should not be found to arise by inference from the exchange of correspondence [at (55)]. 20 In the alternative, he submitted that the most that could be construed from the Commissioner's letter was a decision to refuse to impose a condition upon Mr Osborne's existing licence. The refusal to impose a condition he submitted did not come within the terms of s.75(1)(b) of the Firearms Act. That paragraph he argued must be distinguished from the right of review under s.75(1)(a) and s.75(1)(d) of that Act, in which Parliament had expressly provided for the circumstances of a decision of "refusal". That is, by the exclusion of the words "refusal of" in paragraph (b) of that sub-section, Parliament has expressed an intention not to give the Tribunal jurisdiction over decisions, which were a refusal of a condition. That is, on a proper construction of s.75 of the Firearms Act, Mr Godwin argued that the Tribunal's jurisdiction was limited to those decisions, which "imposed" a condition on a licence or permit issued under the Act and not those, which were a "refusal" to impose a condition. 21 In respect of Clauses 117 and 32(1) of the Firearms Regulations, Mr Godwin submitted that the proper construction of Clause 32(1) was that it only applies where a licence holder has applied to substitute one premises for another. In this case, no such application had been made making Clause 117 inapplicable as a basis for Mr Osborne to seek review under s. 75(1)(g) of the Firearms Act. (b) The Applicant's Submissions 22 Mr Hatcher, on behalf of Mr Osborne, submitted that the letter in response to Mr Osborne's application can only be interpreted in one way; namely – a "refusal" of his application to have the new premises added to his existing licence. He pointed out that at the time Mr Osborne received the Commissioner's reply Mr Osborne had not made any application for a second licence. So, there was no basis on which the Commissioner could have made such a decision. It was noted that an application was subsequently made and then granted. 23 Mr Hatcher submitted that nowhere in the Firearms Act or in the Regulations is there a provision, which states that only one premises can be authorised for the purpose of a firearms dealer licence. Accordingly, he submitted that Clause 32(1) of the Firearms Act should be given its full meaning, which includes the substitution of one premises for another and the addition of other or new premises. 24 Mr Hatcher also submitted that as Clause 32(5) of the Firearms Regulations provides that where the Commissioner approved an application to change premises, the Commissioner is expressly required to impose a new condition on the licence. Accordingly, s.75(1)(b) of the Firearms Act should be construed widely to include a merits review of a decision which is a refusal of imposing the new condition. REASONS AND DECISION 25 In my opinion, it is arguable that the Commissioner's reply does not contain a decision to grant Mr Osborne a second firearms dealer's licence as the Commissioner's power to make such a decision only arises when the Commissioner has an application before him in the approved form (ss. 10 and 11 Firearms Act). In this case, as stated above, no application was before the Commissioner at the time he wrote his reply. In any event this is not a matter in issue in this case. What is in issue is whether the Commissioner's reply contains a decision pursuant to clause 32(1) of the Firearms Regulations, or a decision to impose a condition under s. 19(1) of the Firearms Act, in respect of the addition of the new premises being included on Mr Osborne's licence. It is conceded that a decision made pursuant to these provisions is a reviewable decision for the purposes of s.38 of the Administrative Decisions Tribunal Act, 1997 (see s.75(1)(b) and (g) Firearms Act). 26 In my opinion, there can be no question that the Commissioner's letter evidences a decision by him to refuse Mr Osborne's application for the addition of the new premises being included on his existing licence. This is what Mr Osborne requested in his letter and that is what the Commissioner replied to. However, this literal interpretation of what is stated in the correspondence does not give rise to there being a reviewable decision under the terms of s. 75 of the Firearms Act. Hence what must be determined is whether the literal terms of the Commissioner's response also gives rise to an inference that he has made a decision pursuant to one of the provisions set out above. 27 While the content of the correspondence between the parties in this case is distinguishable to the correspondence that was the subject of the decision of the Appeal Panel in The Minister of Fisheries v Sneesby [2001] NSWADTAP 33, the Appeal Panel's approach to determining whether the correspondence discloses a reviewable decision, in my opinion, equally applies to this case. In Sneesby, the applicant contended that the administrator's letter in response to his request for approval to sell the Queensland entitlements attached to his fishing vessel without affecting the NSW entitlements attached to it, by inference, imposed new conditions on his NSW entitlements. The Appeal Panel rejected this contention after having regard to the terms of the correspondence, which made no reference to the fact that the administrator was exercising powers under a particular provision of the Fisheries Management Act and the structure of the licensing scheme of that Act. At paragraph 55 the Appeal Panel went on to state: "Moreover, it would be conducive to great uncertainty both for the regulated (fishers) and the regulator (the Minister and the Director) if conditions were to be found to arise by inference from exchanges of correspondence in which no official statement that a condition was being imposed could be found. This is particularly so in the scheme requiring strict adherence to conditions, on pain of prosecution and a fine of up to 100 penalty units". 28 In this case, Mr Osborne in his letter has expressly stated that he was making an application for the addition of the new premises to his existing licence. His letter, however, makes no reference to Clause 32(1) of the Firearms Regulations. 29 As mentioned above, in response, the Commissioner stated that: "I advise you that the Firearms Registry will not amend your current Firearms Dealers Licence to include a further premises of location" (underlining added). The letter then goes on to draw Mr Osborne's attention to specific sections of the Firearms Act. These are ss.3(1)(b)(i), 3(2)(d) and 19(1), which respectively relate to: (a) the underlying principles of the Act to "improve public safety by imposing strict controls on the possession and use of firearms" (s.3(1)(b)(i)); (b) the objective of the Act to provide requirements that must be satisfied in relation to the acquisition and sale of firearms (s.3(2)(d)) and (c) the powers of the Commissioner to impose conditions on a licence (s.19(1)). (a) Failure to impose a condition 30 It is convenient to first deal with the Commissioner's response insofar as it relates to the issue of a failure to impose a condition on Mr Osborne's existing licence. As mentioned above, the Commissioner's power to impose conditions on a licence are to be found in s. 19(1) of the Firearms Act. However, in my opinion, the terms of the Commissioner's response cannot be interpreted to mean that he has exercised or refused to exercise his power under this sub-section in this case. The response does not state that the Commissioner made a decision or refused to make a decision under this sub-section. Even if the Commissioner had purported to exercise his powers under this sub-section, in my opinion, it would have been an invalid exercise of power as the premises to which a firearms dealer licence relates is not a condition imposed by reason of this sub-section but by reason of the terms of s. 8 (so far as it relates to a firearms dealers licence) of the Firearms Act and clause 34 of the Firearms Regulations. Such a construction is confirmed by the terms of clause 32(5) of the Firearms Regulations, which requires the Commissioner to impose a new condition on the licence if he approves an application by the licence holder to "change" the premises to which his/her licence relates. That is, in regard to the premises to which a firearms dealer licence relates the only discretion available to the Commissioner is that provided by clause 34 of the Firearms Regulations. If the Commissioner is satisfied that the premises from which an applicant proposes to conduct his/her business is suitable, as prescribed, and the Commissioner issues a licence to the applicant, those premises automatically become a condition of that licence. 31 Accordingly, the question of whether there has been a refusal to impose a condition pursuant to s. 19(1) of the Firearms Act does not arise. (b) Change the premises 32 In respect of the question of whether the Commissioner's response evidences a decision made pursuant to clause 32(1) of the Firearms Regulations, again the terms of the response make no reference to this particular provision. 33 In accordance with the decision of the Appeal Panel in Sneesby, the question is whether such a decision should be inferred. In my opinion, for the reasons set out below, the strict licensing and registration scheme provided for in the Firearms Act and the Firearms Regulations does not enable such an inference to be drawn. Furthermore, in my opinion, on the proper construction of clause 32(1) of the Firearms Regulations it does not give a licensee a right to apply to add new premises to which his licence relates. 34 It is not disputed that in enacting the Firearms Act Parliament intended to implement comprehensive and tough new gun laws. This is reflected in section 3(1) of the Firearms Act which sets out the principles of the Act including the principle that possession and use of a firearm is a privilege, which is conditional on the overriding need to ensure public safety (s.3(1)(a)) and to improve public safety by imposing strict controls on the possession and use of firearms. 35 As mentioned above, the objects of the Firearms Act includes the provision of strict requirements to be satisfied in relation to the licensing, acquisition and sales of firearms (s.3(2)(d)). It also includes the objective of establishing an integrated licensing and registration scheme for all firearms (s.3(2)(b)). The Act prohibits the sale, purchase, possession and use of an unregistered firearm (s. 36). It also prohibits the sale, purchase, possession and use of a registered firearm unless licensed to do so (ss. 7 and 43). A contravention of these prohibitions is a serious criminal offence punishable by a fine and or imprisonment. 36 In accordance with these principles and objectives, Parts 2 and 3 of the Firearms Act respectively provide for the issue of licences to possess, use, sell or buy firearms and the registration of firearms. Under Part 2, the Commissioner is given power to issue one or more of the various categories of firearms licences if the applicant satisfies him that he/she has a genuine reason for having the licence applied for and does not come within any of the prescribed reasons for which the Commissioner is required to refuse a licence (ss.11 to 17A). As mentioned above, included in the categories of licence that the Commissioner may issue is a firearms dealer licence, which authorises the holder of such a licence to manufacture, buy, sell or repair firearms from the premises specified in the licence (s.8). 37 Each category of licence is subject to prescribed safe keeping and storage conditions and any other condition the Commissioner imposes (s.19). Once a licence has been issued the Commissioner is given power to suspend and revoke a licence on specified grounds (s.24). These grounds include breaching a provision of the Firearms Act or the Regulations, regardless of whether the licensee has been convicted of an offence (s.24(2)(b)(i)). 38 In respect of the registration of firearms, s.33 of the Firearms Act requires the Commissioner to compile and maintain a Register of Firearms, which contains specified information, not only in respect of the firearms but also in respect of the person in whose name it is registered in, who must be a licence holder under the Act. Clause 87 of the Firearms Regulations prescribes what additional information is required on the Register. So far as is relevant this includes: "(a) The current residential address (or business address in the case of a firearm dealer) of the person in whose name the firearm is registered; (b) The premises where the firearm is kept; …." 39 Where a firearm is sold, lost, stolen the person in whose name the firearm is registered (i.e. the licensee) is required to inform the Commissioner within 7 days of the event occurring (ss. 34(7) and 37(1)(b) Firearms Act and Clause 88 of the Firearms Regulations). Similar requirements are placed on those who acquire a firearm which is not registered in their name (s.37(2)). 40 The Firearms Act and Firearms Regulations contain specific record keeping requirements for holders of a firearms dealers licence. Under the Act, a holder of a firearms dealer licence is required to record specific information in respect of all transactions and dealings concerning firearms to which his/her licence relates (s. 45(1)(a) & (2)). This information is to be recorded within 24 hours of the transaction having occurred and the licensee is to forward the information to the Commissioner, within 7 days, for inclusion in the Firearms Register (s. 45(1) & (3) Firearms Act and clause 33 Firearms Regulations). The licensee is required to furnish the Commissioner with quarterly returns of all his/her transactions and dealings in the previous quarter (s.46 Firearms Act) and if served with written notice, make available for inspection by a police officer at the premises to which the licence relates all the firearms that are in his/her possession (clause 35 Firearms Regulations). 41 These comprehensive and strict licensing, registration and reporting provisions give a clear indication that Parliament intended that the whereabouts and movement of every registered firearm in New South Wales should at all times be regulated and monitored by the Commissioner. This is particularly so for those who are the holders of a firearms dealer licence. A failure to comply with the requirements under the Firearms Act and Firearms Regulations can result in the loss of a licence and or criminal proceedings being taken. 42 Accordingly, in my opinion, having regard to the comprehensive nature of the legislative scheme for firearms licensing and registration, in this case, it cannot be inferred from the Commissioner's response that he exercised his powers under clause 32(1) of the Firearms Regulations. Had he done so he would have expressly referred to the provision and Mr Osborne's right of review of that decision. 43 As mentioned above, in the event I am wrong and such a decision can be inferred, in my opinion on the proper construction of clause 32(1) of the Firearms Regulations it does not apply to applications to add new premises to which a firearms dealer licence relates. 44 The word "change" is not defined in the Firearms Act or in the Regulations. The Concise Oxford Dictionary (10th Edition) defines "change" to mean: "1. make or become different, arrive at a fresh phase; become new – 2. take or use another instead of, move from one to (another)". 45 While the word "change" is ordinarily understood to mean the substitute of one for another its ordinary meaning also includes making something different and to make something different includes making additions or alterations to it. Accordingly, the word "change" when given its ordinary meaning will include additions. 46 However, for the purposes of this application the word must be considered in its legislature context namely, the provisions of the Firearms Act and the Firearms Regulations. For the reasons set out above, in my opinion the strict controls on the possession, use, sale, purchase and registration of firearms provided in the legislation indicates that Parliament did not intent the word "change" to be given a restricted meaning in clause 32(1) of the Firearms Regulations. What these provisions indicate is that Parliament intended a very strict approach to the possession and movement of firearms generally and in particular in respect of those issued with a firearms dealer licence. These provisions are consistent with an intention that a firearms dealer licence be issue only in respect of one premises so that firearms that come into the possession, are in the possession or leave the possession of a firearms dealer licensee can at all times be traced to the place to which the person's licence relates. Or put in another way, having regard to the principles and objectives of the Firearms Act and the strict provisions in regard to record keeping in respect of firearms, the sale of firearms and the record keeping required of firearm dealer licensees, if Parliament intended a firearms dealer licence to relate to more than one premises it would have provided for such expressly together with appropriate record keeping provisions in relation to any movement of firearms from one premises to another. It has not done so, in my opinion, because it intended each premises to relate to a separate licence. A similar approach is used for liquor licensing under the Liquor Act, 1982. 47 Accordingly, in my opinion, on its proper construction the word "change" in Clause 32(1) of the Firearms Regulations does not include the addition of new premises. It is limited to those circumstances where the applicant licensee wishes to substitute one premises for another. 48 For the reasons stated above, in my opinion the correspondence in this case does not evidence a decision by the Commissioner pursuant to s. 19 of the Firearms Act or clause 32(1) of the Firearms Regulations, which means that there is no decision of the Commissioner that is reviewable under s. 75 of the Act. 49 Accordingly, I order that the Tribunal has no jurisdiction to hear Mr Osborne's application.