Rowe v Commissioner of Police, NSW Police Force [2013] NSWADT 179

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Rowe v Commissioner of Police, NSW Police Force [2013] NSWADT 179 Hearing dates: On the papers Decision date: 09 August 2013 Jurisdiction: General Division Before: Judge K P O'Connor, President Decision: The application for review is dismissed for want of jurisdiction. Catchwords: FIREARMS LICENSING - Tribunal barred from reviewing revocations based on apprehended violence order - Order quashed on appeal - Whether Tribunal then has jurisdiction to review the revocation and set it aside - Statutory construction - Held no review jurisdiction - Firearms Act 1996, s 11(5), s 24, s 75(1)(c) Legislation Cited: Administrative Decisions Tribunal Act 1997 Firearms Act 1996 Cases Cited: Battenberg v Union Club [2005] NSWSC 242 Rimanic and Anor v Business Licensing Authority [2002] VSCA 64 The Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 Union Club v Lord Andrew Charles Robert Battenberg [2006] NSWCA 72 Category: Interlocutory applications Parties: Heath Rowe (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: S Mainstone, Mainstone Lawyers (Applicant) C Zoppo, Sparke Helmore Lawyers (Respondent) File Number(s): 133075

reasons for decision 1This decision deals with an important issue relating to the scope of the review jurisdiction of the Tribunal in firearms licensing. The parties made written submissions, filed 8 May 2013 (the Commissioner) and 22 May 2013 (the review applicant). With their agreement, I have dealt with the matter on the papers. 2The review applicant formerly held a category A, B firearms licence. The Commissioner issued a notice of revocation of the licence, effective 19 October 2012, following the making of a final apprehended violence order against the review applicant by the Local Court on 17 October 2012 for 12 months. 3Section 24(1) of the Firearms Act 1996 (the Firearms Act) is the source of the Commissioner's power. I will set out the whole of s 24, as I refer later to the scheme of the provision as a whole: 24 Revocation of licence (cf APMC 6, 1989 Act s 36, 1990 Reg cl 27) (1) A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order. (1A) The Commissioner must revoke a licence that is held for the purpose of employment as an armed security guard (within the meaning of the Security Industry Act 1997) if: (a) the licensee has failed to undertake any firearm safety training required under this Act or the regulations, or (b) in the case of a licensee who holds a class 1F licence or a visitor permit authorising the licensee to carry out security activities of a kind authorised by a 1F licence under the Security Industry Act 1997 - the 1F licence or visitor permit is revoked under that Act or the licensee contravenes any condition of the firearms licence under this Act. (2) A licence may be revoked: (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or (b) if the licensee: (i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or (d) for any other reason prescribed by the regulations. (2A) If the Commissioner revokes a licence because the licence holder would be refused a licence on the grounds referred to in section 11 (5A), the Commissioner is not, under this or any other Act or law, required to give any reasons for revoking the licence on those grounds. (3) The Commissioner of Police may revoke a licence by serving personally or by post on the licensee a notice stating that the licence is revoked and the reason for revoking it. (4) The revocation of a licence 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 licence, cancel a notice revoking a licence before the notice takes effect. 4The review applicant appealed successfully to the District Court. On 19 February 2013 the order was quashed. He applied to the Commissioner for reinstatement of the licence. On 1 March 2013 the Commissioner advised that he would not reinstate the licence despite the fact that the order had been quashed. The Commissioner affirmed this decision after internal review (14 March 2013). The following day the present application for review was lodged. 5The applicant seeks an order from the Tribunal setting aside the revocation. The Commissioner submits that the Tribunal is without jurisdiction because the Commissioner did not make any decision as such in the matter, the revocation arose automatically. Further, the Commissioner submits that the terms of the legislation are clear - once an order is made the Commissioner is required to issue a notice of revocation, and the Commissioner can not reconsider or withdraw the notice if later the order is quashed. 6The Administrative Decisions Tribunal Act 1997 (ADT Act), s 8(1) provides: A reviewable decision is a decision of an administrator that the Tribunal has jurisdiction under an enactment to review. 7Section 38(1) provides: 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. 8Section 75 provides: 75 Review by Administrative Decisions Tribunal of certain decisions (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, (c) the revocation of a licence or permit issued to the person (other than a revocation on the basis that the holder of the licence or permit is subject to a firearms prohibition order or an apprehended violence order), (d) the refusal of or failure by the Commissioner to register a firearm, (e) the cancellation of the registration of a firearm by the Commissioner, (f) a firearms prohibition order made against 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 subsection (1), a regulation referred to in subsection (1) (g) may limit the class of persons who may make an application for a review of a decision referred to in that paragraph. (3) A regulation referred to in subsection (1) (g) cannot be made without the concurrence of the Minister administering the Administrative Decisions Tribunal Act 1997. (4) The following provisions of the Administrative Decisions Tribunal Act 1997 do not apply to an application to the Administrative Decisions Tribunal for a review of a decision referred to in subsection (1) (a) or (c) that was made on the grounds referred to in section 11 (5A) or 29 (3A): (a) Part 2 of Chapter 5, (b) section 58. (5) In determining an application for a review of any such decision, the Administrative Decisions Tribunal: (a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other information referred to in section 11 (5A) or 29 (3A), and (b) in order to prevent the disclosure of any such report or other information, is to receive evidence and hear argument in the absence of the public, the applicant for review and the applicant's representative. 9The jurisdictions conferred by either s 75(1)(a) or s 75(3)(c) might be said to apply to this case. The failure to re-issue the licence could possibly be cast as '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' (s 75(1)(a)). 10Alternatively, s 75(3)(c) could be said to apply. 11In this case the parties' submissions focussed on the proper interpretation of s 75(3)(c). They did not canvass s 75(1)(a) as a source of jurisdiction, and I will not consider that question any further.