Taylor v Commissioner of Police, NSW Police [2006] NSWADT 219 (1 August 2006)

Last Updated: 1 August 2006

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Taylor v Commissioner of Police, NSW Police [2006] NSWADT 219


PARTIES: APPLICANT
Raymond Weeah Taylor
RESPONDENT
Commissioner of Police, New South Wales Police



FILE NUMBERS: 063180

HEARING DATES: 6/07/2006

SUBMISSIONS CLOSED: 06/07/2006



DECISION DATE: 01/08/2006

BEFORE: Higgins S - Judicial Member





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Firearms Act 1989
Firearms Act 1996
Firearms and Dangerous Weapons Act 1973

CASES CITED: Taylor v Commissioner of Police, NSW Police [2006] NSWADT 48

APPLICATION: Jurisdiction

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
S Mainstone, solicitor

RESPONDENT REPRESENTATIVE: RESPONDENT
T Venditti, agent

ORDERS: The applicant’s application is dismissed


Reasons for Decision:

REASONS FOR DECISION

Introduction

1 The applicant has made an application seeking review of a decision made by the respondent more than 20 years ago, on 28 May 1985. The decision in question was a firearms prohibition order made under s.69(1) of the Firearms and Dangerous Weapons Act 1973, which became effective from the date it was served on the applicant; namely 28 May 1985 ("the prohibition order"). That order prohibited the applicant from possessing or using a firearm.

2 It is not disputed that the prohibition order has continued to remain in force even though the Firearms and Dangerous Weapons Act 1973 has been repealed, as was the Firearms Act 1989, which replaced the Firearms and Dangerous Weapons Act 1973 and which was repealed on the enactment of the current legislation of the Firearms Act 1996: see the savings and transitional provisions in Schedule 1 clause 2 of the Firearms Act 1989 and Schedule 3 clause 11 of the Firearms Act 1996. It is not disputed that the 1985 decision of the respondent is a reviewable decision coming within the jurisdiction of the Tribunal: see s.75(1)(f) Firearms Act 1996 and s.38 Administrative Decisions Tribunal Act 1997 ("the ADT Act"). However, the applicant’s application has raised other preliminary issues in respect to the Tribunal’s jurisdiction to hear and determine the matter and the parties agreed to this issue being dealt with as a preliminary matter.

3 These are the reasons and decision in respect to that preliminary matter.

Background

4 In May 2005, the applicant made an application to the respondent seeking revocation of the prohibition order. That application was declined and the applicant sought external review by lodging an application with the Tribunal: see Taylor v Commissioner of Police, NSW Police [2006] NSWADT 48. The Tribunal dismissed that application on the grounds that the Tribunal had no jurisdiction to hear and determine a decision of the respondent to refuse to revoke the prohibition order; that is it was not a decision that came within s.75(1) of the Firearms Act 1996.

5 Following the delivery of the abovementioned decision of the Tribunal, on 4April 2006 the applicant made an application seeking internal review of the decision to make the prohibition order. The respondent responded to that request on 12 April 2006. In his response the respondent noted that the internal review request had been lodged out of time as provided by s.53(2) of the ADT Act. In this regard, the respondent noted that he had a discretion under s.53(2)(d) of the ADT Act to accept the lodgement of an internal review request out of time. However, the respondent advised that he was not prepared to exercise his discretion in favour of the applicant and refused to deal with his application accordingly. In refusing to deal with the applicant’s internal review request, the respondent also drew the applicant’s attention to s.55(2)(b) of the ADT Act.

Issue

6 The matters in issue are relatively straight forward. The first issue is whether the applicant’s application satisfies the requirements of s.55(1) of the ADT Act, in particular, whether an internal review of the respondent has been "finalised". The applicant contends that the respondent’s reply to the applicant’s internal review request constituted an internal review that had been finalised under s.53(9) of the ADT Act. The respondent contended the contrary.

7 If the Tribunal does not accept the contention of the applicant in respect to the finalisation of the internal review, the applicant contends that the circumstances of this application are such that the Tribunal can be satisfied of the matters contained in s.55(2) of the ADT Act, in particular s.55(2)(b). Again the respondent contends to the contrary.

Legislation

Firearms legislation

8 As mentioned above there is no dispute that the prohibition order that was made against the applicant in 1985 under the Firearms and Dangerous Weapons Act 1973, is an order under the existing legislation governing the use and possession of firearms (i.e. Firearms Act 1996) by virtue of the following savings and transitional provisions:

"Firearms Act 1989 – Schedule 1 clause 2
A firearms prohibition order -

(a) that was made under section 69(1) of the former Act [i.e. Firearms and Dangerous Weapons Act 1973]: and
(b) that was in force immediately before the provision was repealed by this Act, shall be treated as a firearms prohibition order under this Act.
Firearms Act 1996 – Schedule 3 clause 11

A firearms prohibition order that was made under section 39 of the former Act [Firearms Act 1989], and in force immediately before the repeal of that section by this Act, is taken to be a firearms prohibition order under this Act."

9 The provisions relating to a firearms prohibition order in the current Firearms Act 1996 (see s.73 & 74) are similar in terms to those contained in the Firearms and Dangerous Weapons Act 1973 and the Firearms Act 1989. These provisions do not and did not prescribe a limit on the time that such an order was effective for. Nor did the Firearms Act 1989 include a statutory mechanism for such orders to be set aside. The same applies to the current Firearms Act 1996, however the Tribunal was informed that the respondent does in fact revoke such orders where appropriate.

10 The Firearms and Dangerous Weapons Act 1973 and the Firearms Act 1989 both contained provisions entitling a person aggrieved by a decision of the respondent to make a firearms prohibition order to appeal that decision: see s.24(1)(k) of the Firearms and Dangerous Weapons Act 1973 and s.41(1)(d) of the Firearms Act 1989. Appeals were to the Court of Petty Sessions/Local Court and appeals were required to be made within 21 days after the person aggrieved had been notified of the respondent’s decision or as prescribed by the rules of court. As pointed out in the decision of the President in the applicant’s first application a similar right of review is contained in s.75(1)(f) of the current Firearms Act 1996.

11 While it was not pointed out to the parties, the Tribunal notes that s.24(1)(l) of the Firearms and Dangerous Weapons Act 1973 also provided an appeal from a decision of the respondent to refuse to revoke a prohibition order. That paragraph also provided that a person the subject of such an order was required to make a written request for the revocation of the order and that request could not be made less than 5 years after the order came into force. A similar right of appeal was not included in the subsequent legislation.

Administrative Decisions Tribunal Act

12 Section 55 of the ADT Act sets out when a person may apply to the Tribunal for a review of a reviewable decision. That section, so far as it is relevant, provides as follows:

"55. When can an application for a review be made?
(1) A person may apply to the Tribunal for a review of a reviewable decision only if:

(a) ...
(b) an internal is taken to have been finalised under section 53(9), and

(c) ...

(2) However, sub-section (1)(b) or (d) does not prevent a person from making an application in respect of a reviewable decision that has not been the subject of an internal review under section 53 if the Tribunal is satisfied that:

(a) the person was not at any time entitled to apply for an internal review of the decision, or
(b) the person made a late application for an internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the decision of the administrator concerned, or
(c) it is necessary for the Tribunal to deal with the application in order to protect the person’s interests and the application to the Tribunal was made within a reasonable time following the decision of the administrator concerned.

(3) In determining whether a late application for internal review was unreasonably refused or whether an application to the Tribunal was made within a reasonable time for the purposes of sub-section (2), the Tribunal is to have regard to:

(a) the time when the applicant became aware of the making of the decision, and
(b) in a case to which sub-section (2)(b) applies – the period prescribed by or under section 53 for the lodging of an application for an internal review, and
(c) such other matters as it considers relevant."

13 S.53(9)(a) of the ADT Act provides that an internal review is "finalised" when the applicant is notified of the outcome of the review pursuant to sub-section 53(6). That sub-section requires the administrator to notify the internal review applicant in writing of the outcome of the internal review, the reasons for its decision and the review rights of the applicant.

Consideration

14 In my opinion, the applicant’s first contention that the respondent’s reply to his internal review request came within the terms of s.53(6) of the ADT Act cannot be accepted. The respondent’s reply clearly states that the respondent had determined not to accept the applicant’s internal review request out of time. That is, it is clear from the terms of the reply that the respondent had given no consideration to reviewing the original decision. That is, no internal review determination was made, which in my opinion, is what is required, on a proper construction of s.53(9) of the ADT Act, for an internal review to be "finalised". If the applicant was correct then there would have been no need for a provision such a s.55(2)(b) of the ADT Act which expressly relates to refusing to consider an application for internal review that was made out of time.

15 This leaves the second issue; namely whether the Tribunal can be satisfied of the matters set out in s.55(2)(b) of the ADT Act. In this regard there is no question that the applicant has made a late application for internal review. However, the applicant contends that the Tribunal should view the decision for which internal review was being sought as being a decision that was made on 23 August 1996 when the current Firearms Act 1996 came into operation and not as a decision that was made in May 1985. The basis of this submission was the transitional provisions, which made the May 1985 orders, orders under the current Act. In my opinion, the transitional provisions do not have such an effect. The order remains an order made in May 1985.

16 As mentioned above, s.55(3) of the ADT Act requires the Tribunal to have regard to three factors in determining whether a late application for internal review was unreasonably refused by the administrator. The first factor is the time when the applicant became aware of the decision for which review is sought. In this case there is no question that the applicant became aware of the decision more than 20 years ago when he was served with the order.

17 The second factor is the period prescribed under s.53 of the ADT Act for lodging an application for an internal review. That period is 28 days: see s.53(2)(d) of the ADT Act. As mentioned above, a similar period of time was provided in the legislation that preceded the Firearms Act 1996. This factor has clearly been inserted so that the Tribunal has regard to how long after the prescribed period the applicant has made his/her internal review request. In this application it is an exceptionally long period thereafter. However, the Tribunal is also required to have regard to any other matters it considers relevant.

18 It was the applicant’s contention that his circumstances had changed since the prohibition order was made. He said he had undergone psychiatric treatment and had remarried in 1989. Furthermore, through the encouragement of his new wife he successfully applied for a firearms licence in 1990, which he held for three years. While the applicant acknowledged that the licence should not have been issued due to the prohibition order being in place he suggested that the fact that he was issued with the licence was indicative of him being suitable to hold a firearms licence but for the 1985 prohibition order.

19 In my opinion these contentions are of no assistance to the applicant. The fact is that he made his internal review request well and truly out of time and also a very long time after his circumstances had allegedly changed. Furthermore, the only explanation for his late application was to enliven a right of review to the Tribunal in respect to a decision that was made 20 years ago, when the Tribunal had no jurisdiction to hear and determine the respondent’s more recent refusal to revoke the prohibition order.

20 Prohibition orders are clearly seen by Parliament as being orders that are to be made in exceptional circumstances and when they are made they are to remain in force, subject to the Commissioner exercising his discretion to revoke it. It is difficult to understand why decisions in regard to the revocation of such orders, where a person’s circumstances can be shown to have changed, have not been made the subject of informal administrative review. However, this is a matter for Parliament and not for the Tribunal.

21 For the reasons set out above, in the circumstances of this application, I am not satisfied that the respondent’s refusal to deal with the applicant’s internal review application out of time is unreasonable. Accordingly, the Tribunal has no jurisdiction to hear and determine the applicant’s application and it should be dismissed.