Baker v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 54

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Baker v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 54 Hearing dates: 3 December 2013 Decision date: 10 December 2013 Jurisdiction: Appeal Panel - Internal Before: Judge K P O'Connor, President P Molony, Judicial Member M Bolt, Non-judicial Member Decision: Appeal dismissed Catchwords: FIREARMS LICENSING - revocation on ground of public interest - affirmed by Tribunal - licensee declined to be cross-examined - procedural fairness - adequacy of Tribunal's explanation - no error - leave to extend to merits refused - appeal dismissed Legislation Cited: Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Rules 1998 Firearms Act 1996 Firearms Regulation 2006 Cases Cited: Baker v Attorney General for New South Wales [2013] NSWCA 329 Baker v New South Wales Police [2013] NSWSC 57 Category: Principal judgment Parties: Patricia Baker (Appellant) Commissioner of Police, NSW Police Force (Respondent) Representation: Mr C Baker (Appellant's agent) Mr J Mattson, Bartier Perry (Respondent) File Number(s): 139035 Decision under appeal Citation: Baker v Commissioner of Police, NSW Police Force [2013] NSWADT 190 Date of Decision: 2013-08-22 00:00:00 Before: General Division File Number(s): 123144

reasons for decision 1On 17 February 2012 the Commissioner of Police, as administrator of the Firearms Act 1996 (the Act), revoked the AB firearms licence first issued to Patricia Mae Baker in June 2003, and subsequently renewed. The Commissioner's decision to revoke the licence had as its background a police visit on the evening of 18 November 2011 to a farm property at Quirindi that Mrs Baker occupies with her husband, Cyril Brett Baker. 2The purpose of the visit was to execute an arrest warrant on Mr Baker. The Commissioner's decision to take action in respect of Mrs Baker's licence flowed from concerns over answers given by Mrs Baker, as a person licensed to possess firearms, to questions as to whether there were any firearms in the home that were asked by the attending police before they entered the home. 3The Commissioner's decision relied on two separate statutory grounds: that Mrs Baker might not be able to personally exercise continuous and responsible control over the firearms because of her living and domestic circumstances: the discretion given by s 24(2)(a) and s 11(4)(a) of the Act; and that it was not in the public interest for Mrs Baker to continue to hold a licence: the discretion given by s 24(2)(a), read in conjunction with cl 19 of the Firearms Regulation 2006. 4Mrs Baker applied for review. The Tribunal affirmed the Commissioner's decision on the second of these grounds (that it would not be in the public interest for her to continue to hold a licence in the circumstances). The Tribunal did not consider it necessary to address the other ground, but did find that she did not understand her obligations as a licensee. 5Mrs Baker now appeals. An appeal may be made on a 'question of law', and an appeal may with the leave of the Appeal Panel be extended to the merits: Administrative Decisions Tribunal Act 1997, ss 112, 113. Both parties have filed written submissions. 6At the appeal hearing, Mr Baker announced his appearance of behalf of Mrs Baker. He was informed that as a non-lawyer he must obtain the Appeal Panel's leave to appear. Mrs Baker had appeared before the Tribunal in person without any assistance. 7Mr Baker's attention was drawn to s 71 of the ADT Act, and rule 20A of the Administrative Decisions Tribunal Rules 1998. Mr Mattson, for the Commissioner, opposed leave on the ground that Mr Baker was implicated in the events of 18 November 2011, and might not be expected therefore to bring the detachment to the matter to be expected of a representative. He also expressed concern that he might use the opportunity to provide a platform for promoting his own views and not confine himself to the issues relevant to the appeal. With some hesitation, the Appeal Panel granted Mr Baker leave, but warned him that the Panel had the power to revoke leave at any time. The hearing then proceeded. 8Mr Baker's opening points challenged the legitimacy of the proceedings and functionaries connected to the proceedings. So, for example, he questioned the Tribunal's competence to deal with the appeal on the ground that those members whose appointments were made by the Governor-in-council (in this instance the presiding member, the President) were invalid because the Governor's own appointment was invalid. He also questioned the Tribunal's competence to sit on the ground that the tribunal was not a 'court' and on the ground that it did not have a jury to decide matters of fact, citing provisions of the Commonwealth Constitution. Similar submissions were recently addressed by the Supreme Court in a case where Mr Baker was a party. Mr Baker's submissions were rejected. The Administrative Decisions Tribunal is bound by the decisions of the Supreme Court, and there is nothing in the statutory setting of the present case that might require us to question the applicability of the Supreme Court rulings to the present circumstances: see Baker v New South Wales Police [2013] NSWSC 57 (Latham J); on appeal, Baker v Attorney General for New South Wales [2013] NSWCA 329 (Basten, Ward JJA). 9Mr Baker also questioned the authority of the Commissioner of Police to act as he had in this matter. He described the Commissioner as an employee of the NSW Police Force. What the significance of that point was - if an accurate way of describing the employment status of the Commissioner - is not clear to us. 10The Commissioner of Police holds a statutory office. Under the Firearms Act, the Commissioner is vested with statutory responsibility to administer the firearms licensing scheme, and exercise the statutory powers vested in him. As a practical matter, these powers are discharged by authorised officers acting under delegation. 11Mr Baker then turned to the reasoning of the Tribunal in relation to the merits of his wife's case. He provided (from the bar table) his version of what happened on the evening of 18 November 2011. This is, of course, not proper practice on the part of a person appearing as a representative of a party. This was the possibility that Mr Mattson had anticipated in his initial objection. In the interests of expedition, the Appeal Panel did not intervene to consider whether to revoke his leave to appear. Mr Mattson, in opposing any consideration being given to what Mr Baker had to say, noted, properly, that he did not give evidence at the Tribunal below and could have been called by Mrs Baker on that occasion. 12The one point that Mr Baker raised that, in our view, warrants closer attention concerned procedural fairness. He noted that the Tribunal had preferred the account given by the two attending police as to the conduct of Mrs Baker on the night in question over the account given by Mrs Baker. He noted that the Tribunal in its reasons had referred adversely to Mrs Baker's decision not to submit to cross-examination on the written statement of evidence she had filed. The police officers had given oral evidence and submitted to cross-examination. The Tribunal had the opportunity to ask questions. 13Mr Baker submitted that Mrs Baker had not been fairly dealt with in relation to the implications for her case that flowed from her decision not to submit herself to cross-examination. He submitted that the Tribunal had not explained to her the possible consequences of her electing to take that course. Section 73(4) of the ADT Act places some obligations on members to assist parties in making sound decisions in relation to the conduct of their case. It provides: (4) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and (b) if requested to do so-to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings. 14In reply Mr Mattson referred to Mrs Baker's level of education (she has had a long career as a high school teacher), the point as we understand it being that she is likely to have made a considered decision on this matter. Further he referred to relevant passages from the transcript which he had typed from the cassette (sic) tape of the Tribunal hearing which was held at Tamworth. 15In our experience, it is most unusual for a licensee not to give oral evidence at a hearing relating to the loss of their licence on discretionary grounds. Revocation decisions frequently involve character assessments or other assessments of a personal nature. Plainly, direct evidence from the licensee is helpful in forming a view as to the merits of the administrator's opinion. 16In this case the Commissioner had put in issue Mrs Baker's ability to maintain personal control of the firearms she was authorised to possess, influenced by the domestic violence incidents to which the Tribunal's reasons refer in greater detail, and by the possible influence her husband might have over her in relation to the keeping and use of those weapons. These are concerns of a very personal nature where direct evidence from the licensee might have been expected. 17We have reviewed the transcript. We are satisfied that the Tribunal member raised in an appropriate way with Mrs Baker the possible consequences of her choice. 18The other points made in the grounds of appeal, spread over 28 points, and in the subsequent written submissions (14 pages), mainly debate the way the Tribunal dealt with the evidence, and put in issue some factual conclusions, and its overall exercise of discretion. 19There are no matters of law raised by the appeal which, in our opinion, reveal any error of law on the part of the Tribunal. While leave may be given to extend an appeal to the merits without there being any error of law, this is not a case where any of the disputes over matters of fact raised by the notice of appeal or the submissions in support point to a possible injustice of a kind that might warrant a grant of leave. 20The Tribunal conducted a hearing that considered closely the evidence of the visiting police officers. The Tribunal had regard to the appropriate law, had regard to all relevant material, and made a decision that was open to it on the material before it. It gave weight to the objects of the Firearms Act, especially its public safety functions. 21In our view, it had proper regard to the understandable concern of police visiting a remote property, for the purpose of arresting a person, that they receive accurate answers to questions about the presence or otherwise of firearms on the property, in particular from a person who was a licensed person with authority to keep weapons at the property. Further, the setting on that night was one where the police had to pass by aggressively- expressed 'no trespassing' signs at the entrance to the property that named a variety of officials as, in effect, not welcome including police.