Hargrave -v- Commissioner of Police [1999] NSWADT 81

CITATION: Hargrave -v- Commissioner of Police [1999] NSWADT 81

DIVISION: General

APPLICANT: William Leigh Hargrave

RESPONDENT: Commissioner of Police

FILE NUMBER: 993092

HEARING DATES: 09/03/1999

SUBMISSIONS CLOSED: 09/03/1999

DATE OF DECISION: 13 September 1999

N Hennessy - Deputy President BEFORE:

PRIMARY LEGISLATION: Firearms Act 1996

APPLICATION: Review of decision to refuse personal pistol permit -

MATTER FOR DECISION: Principal matter

Applicant: N Marsic, solicitor REPRESENTATION: Respondent: D Fitzgibbon, counsel instructed by Woodgate Morgan, solicitors

ORDERS: 1. The respondent's decision to refuse the applicant's application for Class A, B, H and G licences on the basis that the applicant is subject to a Firearms Prohibition Order is affirmed.

Background 1 The applicant, Mr Hargrave, is interested in recreational shooting and has been a member of the Silverdale Pistol Club. On 31 March 1999 his applications for Category A, B, H and G licences were refused by the respondent on the basis that he was subject to a Firearms Prohibition Order issued under s 69(1) of the Firearms and Dangerous Weapons Act 1973 ("the 1973 Act"). Mr Hargrave requested an internal review which affirmed the original decision. 2 On 17 May 1999 Mr Hargrave lodged an application for review of this decision with the Tribunal. Evidence 3 Mr Hargraves' evidence, which was not disputed, was that in 1972 while driving with a friend to Wollongong, he used a cap gun to threaten hitchhikers and make them hand over their money. He was convicted of armed robbery and served four months in prison. He has not been convicted of any criminal offences since that time and no charges are pending against him. 4 It is common ground that a firearms prohibition order was made under s 69(1) of the 1973 Act on 2 September 1975 and served on 10 March 1977. Mr Hargrave is currently working for a contract engineering company. His wife and one of his four adult daughters have a shooters licence and he is interested in re-joining a pistol club. The parties' submissions. 5 Section 11(5)(e) of the Firearms Act 1996 ("the 1996 Act") states that "A licence must not be issued to a person who is subject to a firearms prohibition order." Section 73 of the 1996 Act gives the Commissioner power to make such a prohibition order. Such an order is not subject to any statutory time period and may continue indefinitely. 6 The respondent's submission is that the prohibition order made under the 1973 Act remained in force under the Firearms Act 1989 ("the 1989 Act")and is still in force under the 1996 Act. Schedule 1 Cl 3 of the 1989 Act provides that: A firearms prohibition order - (a) that was made under section 69(1) of the former Act; and (b) that was in force immediately before that provision was repealed by this Act, shall be treated as a firearms prohibition order under this Act. 7 Accordingly, the original prohibition order under the 1973 Act is to be treated as a prohibition order under the 1989 Act. That Act was superseded by the 1996 Act. Schedule 3 Cl 11 of the 1996 Act provides that: A firearms prohibition order that was made under section 39 of the former Act, and in force immediately before the repeal of that section by this Act, is taken to be a firearms prohibition order under this Act. 8 It was the respondent's submission that the effect of Schedule 3 Cl 11 is that a prohibition order made or deemed to have been made under the 1989 Act is taken to be an order made under the 1996 Act. Consequently the prohibition order is still in force. 9 Under s 73 of the 1996 Act, "The Commissioner may make an order prohibiting a person from having possession of or using any firearm if, in the opinion of the Commissioner, the person is not fit, in the public interest, to be permitted to have possession of a firearm." Ms Marsic pointed out that this is virtually the same test as in s 69 of the 1973 Act and s 39 of the 1989 Act. This supports her submission that it was parliament's intention that continuity in relation to prohibition orders be maintained when the new legislation came into effect. 10 A narrow interpretation of Schedule 3 Cl 11, restricting the effect of the provision to orders actually made under the 1989 Act would, in the respondent's submission, result in a mischief. It would lead to the circumvention of the intent of that clause which was that prohibition orders in force under the 1989 Act should remain in force under the 1996 Act. 11 Ms Marsic supported this submission by referring to s 33 of the Interpretation Act 1987 (NSW) which states that: In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose of object underlying the Act or statutory rule . . .shall be preferred to a construction that would not promote that purpose or object 12 In accordance with s 3 (1) two of the objects underlying the 1996 Act, are "to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety and to improve public safety by imposing strict controls on the possession and use of firearms." In support of this approach Ms Marsic quoted Higgins v Nicol (1971) 18 FLR 343 and Metal Manufacturers Ltd v Lewis (1988) 13 NSWLR 315 at 319. The latter case states that: Courts should endeavour to give effect to the purpose of the legislation. When they do this, courts are not indulging in the idiosyncratic pursuit of policies which the judges conceive to be desirable. On the contrary, they are avoiding idiosyncratic perpetuation of law or policy which parliament has overridden. The judges are then effecting the will of Parliament and not frustrating it. 13 Finally, Ms Marsic submitted that the prohibition order to which the applicant is subject is a prohibition order within the meaning of s 11(5)(e) of the 1996 Act. Accordingly the Commissioner was bound by that section not to give the applicant a licence. 14 Mr Fitzgibbon, on behalf of the applicant, submitted that the clear words of Schedule 3, Cl 11 of the 1996 Act demonstrate that only prohibition orders made under the former Act are taken to be prohibition orders under the 1996 Act. As the applicant's prohibition order was not made under the 1989 Act it cannot be taken to be a prohibition order under the 1996 Act. 15 Mr Fitzgibbon submitted that the refusal of Mr Hargrave's application constituted a penalty because it deprived him, for life, of the opportunity to hold a firearms licence. I do not accept that the provisions of the 1996 Act under consideration in this application are penal provisions. A prohibition order is not a sentence for a criminal offence. It is an administrative decision by the Commissioner that a person is not fit, in the public interest, to possess a firearm. As s 3 of the 1996 Act states, the possession of a firearm is a privilege. This finding makes Mr Fitzgibbon's further submissions on this point irrelevant. 16 Mr Fitzgibbon made several other submissions such as the fact that Mr Hargrave committed the offence before the 1973 came into effect and consequently the order should not relate retrospectively to such an offence. The 1973 Act gave the Commissioner power to issue a prohibition order on the basis that the person was not fit to possess a licence. It is entirely appropriate that such a decision should take into account offences which were committed prior to the legislation coming into effect. 17 Another of Mr Fitzgibbon's submissions was that a cap gun was not a firearm within the meaning of the 1973 Act. Again, this fact is not relevant given the Commissioner's powers to make a prohibition order if satisfied that the person is not fit to possess a firearm. Application of law and decision 18 I agree with all of the submissions put forward by the respondent. The words "made under section 39 of the former Act" in Sch 3, Cl 11 of the 1996 Act include prohibition orders deemed to have been made under the 1989 Act such as orders made under the 1973 Act. Any other interpretation would not be consistent with certain objects and purposes of the legislation which are to maintain continuity in relation to prohibition orders and to ensure that a person subject to a prohibition order cannot possess a firearm. 19 Ms Marsic pointed out that s 43(2) of the Interpretation Act 1987 states that: "If an Act or statutory rule confers a power on any person or body to make an order . . . the power includes power to amend or repeal made in the exercise of that power." This section may provide the applicant with an opportunity to apply to the Commissioner to repeal the prohibition order. Quite rightly, Ms Marsic could not indicate what the outcome of any such application might be. 20 The Commissioner's decision to refuse Mr Hargrave's application for Category A, B, H and G licences on the basis that he was subject to a Firearms Prohibition Order is affirmed.