Pang v Commissioner of Police, NSW Police Force [2009] NSWADT 11 (19 January 2009)

Last Updated: 6 February 2009

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Pang v Commissioner of Police, NSW Police Force [2009] NSWADT 11
This decision has been amended. Please see the end of the judgment for a list of the amendments.

DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
Joseph Yuk Wing Pang

RESPONDENT
Commissioner of Police, NSW Police Force



FILE NUMBERS:
083264

HEARING DATES:
27 November 2008

SUBMISSIONS CLOSED:
27 November 2008



DATE OF DECISION:
19 January 2009

BEFORE:
Molony P - Judicial Member





LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Firearms Act 1996
Firearms Act 1968 (UK)
Firearms Regulation 2006
Interpretation Act 1987
Interpretation Act 1901

CASES CITED:
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409
Osborne v Commissioner of Police, NSW Police Service [2000] NSWADTAP 10
Cooper Brookes (Wollongong) Pty Ltd v Fed Cmr Taxation [1981] HCA 26; (1981) 147 CLR 297
Oxley & Anor v Imperial Charter Pty Ltd (1996) NSW Conv R para 55-783
Smoker v Pharmacy Restructuring Authority (1994) 125 ALR 157
Burditt v Joslin [1981] 3 All ER 203
The Ombudsman v Commissioner of Police (1987) 1 NSWLR 386
Re Federation of Construction Contractors; Ex parte Billing [1986] HCA 74; (1986) 68 ALR 416
Shi v Migration Agents Registration Authority [2008] HCA 31

TEXTS CITED:


APPLICATION:
Firearms Act - Firearms licence - issue of licence or permit – ‘resident of this State’

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
S Gates, solicitor
RESPONDENT
S Sheather, solicitor


ORDERS:
The decision of the Commissioner to refuse Mr Pang’s application for a firearms licence is set aside and substituted with a decision to grant Mr Pang’s application for a Category AB firearms licence.


Reasons for Decision:

REASONS FOR DECISION

1 Mr Pang has held a firearms licence in NSW under the Firearms Act 1996 and its predecessor since September 1993. Most recently this was a category AB firearms licence which was issued on 7 August 2003 for 5 years. There is no suggestion that Mr Pang is not a fit and proper person to hold a firearms licence, or that he has in any way breached the requirements of the legislation for the safe use and storage of his firearms.

2 When Mr Pang applied for a new firearms licence in June 2008, in anticipation of his existing licence expiring, the Commissioner refused his application on the ground that Mr Pang is not a resident of NSW, or about to become a resident of NSW. Section 11(3)(d) of the Firearms Act 1996 provides:

A licence must not be issued unless:

...

(d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State.

3 In his application for the licence dated 3 June 2008 Mr Pang had given as his residential address an address in Hong Kong. He had earlier advised the Firearms Registry in a letter dated 17 October 2007 of a change from his NSW address to the Hong Kong address: correspondence which the Firearms Registry apparently ignored when it wrote to him at his previous NSW address in January 2008.

4 An examination of the Commissioner’s file reveals that Mr Pang had told Eastwood Licensing Police on 18 March 2004 that he was ‘currently residing in Hong Kong’ and that his firearms were stored at a licensed gun shop.

5 The Commissioner advised Mr Pang of the decision to refuse his application for a new firearms licence by letter dated 18 July 2008.

6 On 25 July 2008 Mr Pang wrote to the Commissioner requesting an internal review. In that letter he advised:

1. I will reach my employer's retirement age of 60 next March. Upon my retirement, I intend to resettle in Sydney, where I own a house (...). A copy of my passport, evidencing my age and resident status, as well as a copy of the title deed, are enclosed for your reference.

2. I have always been a responsible firearms owner. . During any absence from Australia, I have always ensured that my firearms were safely stored. I first stored my firearms at [the] Gun Shop; since the firm ceased business, I have been storing them at the armoury of... At no time did my departure from Sydney pose any security risk to the general public arising from firearms storage.

3. I fly from Hong Kong to shoot at the N.S.W. Gun Club each year to fulfill my obligations as a gun club member.

4. I am an honest person, and have willingly volunteered information on my change of address to the Firearms Registry.

7 Attached to that correspondence was a copy of what appears to be a page from Mr Pang’s Australian Passport. This the Commissioner concedes is a travel document showing that Mr Pang is the holder of Australian sub class 155 resident return visa and is free to travel and return to Austral during the life of the visa, provided he spends an aggregate of two years out of five in Australia.

8 On 7 August 2008 an internal review officer affirmed the decision to refuse Mr Pang’s application for a new firearms licence. The internal review officer found:

You submit that you have always been a responsible firearms' owner. I agree; I have found no evidence to suggest otherwise. I also note that you have no criminal convictions and therefore conclude that you uphold the law. I also note evidence to demonstrate that you have consistently obeyed firearms rules and regulations. If you were a NSW resident I would have no hesitation in recommending that your application be granted.

However, section 11(3)(d) of the Act makes it very clear that a NSW firearms licence can only be issued to a NSW resident, or a person who is "about to become" a NSW resident. In this regard I would consider it reasonable that, if a person can provide evidence that within the next three months they will be a resident of this State, to conclude they are 'about to become' a resident.

I note your advice that you own a house in Cammeray and when you reach retirement age in March 2009, you intend to resettle in Sydney. However, I believe this information demonstrates that you are not "about to become a resident of the State of New South Wales" as required by the Act to issue your licence, but rather that you currently reside in Hong Kong and will continue to do so for a minimum of seven months. Additionally, I note the date of your return is not yet determined.

As a consequence, despite your previous unblemished history of firearms' authorisation, I am satisfied that you are not 'about to return' to Australia and I believe the Commissioner's decision to refuse your application was both correct and preferable.

9 On 29 August 2008 Mr Pang filed an application to review that decision in this Tribunal.

10 The hearing of that appeal took place on 27 November 2008. Mr Pang is still in Hong Kong and did not attend the hearing, but was represented by Mr Gates.

11 Mr Gates produced a confirmed booking for Mr Pang and his wife showing that they are flying from Hong Kong to Australia on 1 March 2009. Mr Gates said he was instructed that it was then their intention to resume living permanently at their Cammeray home. I asked Mr Pang whether that home was presently vacant. His instructions are that it is rented, but that Mr Pang will be retaking possession on his return.

12 Mr Sheather, who appeared for the Commissioner, produced a printout of an information sheet downloaded from Department of Immigration (http://www.immi.gov.au/migrants/residents/155/index.htm) concerning five year resident return visas, subclass 155. Relevantly this advises:

About this Visa

The purpose of this visa is to allow current or former Australian permanent residents, or former Australian citizens to re-enter Australia after travelling overseas. This visa will allow you to maintain your status as an Australian permanent resident on your return to Australia.

Important: You are advised to apply for this visa before you leave Australia.

Who is this visa for?

This visa is for you if the travel validity period of your permanent visa has expired or is about to expire.

...

What does this visa let me do?

This visa allows you to leave and enter Australia as often as you want, within the validity period of the visa, while maintaining your status as a permanent resident.

Issues

13 There were two issues requiring determination in this case. First, whether Mr Pang is a resident of this State. Secondly, if not, whether he is about to become a resident of this State.

14 Section 63 of the Administrative Decision Tribunal Act 1997 says that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Commissioner, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

Is Mr Pang a resident of NSW?

15 For Mr Pang it was submitted that he owns a home in NSW and is a resident of the State. It was conceded that he has been living in Hong Kong, to satisfy the requirement of his employment.

16 The Commissioner made lengthy submissions as to the meaning of the words ‘resident of the State’ in section 11(3)(d). Those submissions traversed the meaning of the words ‘resident,’ ‘resident of Australia,’ ‘permanent resident,’ and ‘permanent Australian resident’ in various Commonwealth and State Acts, including the Security Industry Act 1997, the Migration Act 1958 (Cth), the Social Security Act 1991 (Cth), the various Commonwealth Tax Acts, and the Shipping Registration Act 1981 (Cth). Because each of these Acts use different terms (sometimes defined, sometimes not), and were enacted for with different objects and legislative purposes, which set the context in which the meaning of those terms is to be ascertained, I did not find this analysis helpful in determining the task at hand.

17 The thrust of the Commissioner’s submission was that the words ‘resident of the State’ in section 11(3)(d) should be construed, in the light of the objects and principles of the Firearms Act 1996, so as to read ‘permanent resident of the State.’ In so submitting the Commissioner asked me to have regard to the second reading speech on the introduction of the Firearms Act 1996.

18 ng so the Commissioner sought to rely on the provisions of section 33 and 34 of the Interpretation Act 1987. Section 33 provides:

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

19 Section 34 of the Interpretation Act 1987 then provides:

(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or

(b) to determine the meaning of the provision:

(i) if the provision is ambiguous or obscure, or

(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.

20 In Osborne v Commissioner of Police, NSW Police Service [2000] NSWADTAP 10 the Appeal Panel discussed the circumstances in which resort can be had to extrinsic material in ascertaining the meaning of a statutory provision. The Appeal Panel said at [35–36]:

As we interpret sections 33 and 34, the method to be adopted has two steps with the second step, the section 34 step, subordinate to the first step, the section 33 step. First an attempt should be made to ascertain the meaning of the text. That step can be informed by having regard to the objects and purpose of the legislation and the content of the legislation as a whole. The second step, the section 34 step, is ancillary. Section 34 provides a variety of options. Under sub-section (1), the ancillary step may involve considering the extrinsic material `to confirm' that the meaning attributed as the ordinary meaning of the provision is consistent with the extrinsic materials; or to `determine' the meaning of the provision if it is ambiguous or obscure; or to resolve the meaning if the `ordinary meaning conveyed by the text ... leads to a result that is manifestly absurd or is unreasonable.'

By virtue of sub-section (2) the second reading speech, or other extrinsic material, may be `considered' in the interpretation of the provision of an Act. But in our view it is not appropriate to proceed to a consideration of the second reading speech, or other extrinsic document, without first seeking to interpret the provision in issue. It is necessary first to examine and analyse the provisions of the Act for the purpose of determining whether or not there are good reasons to resort to the second reading speech, or other extrinsic document: see esp. Saraswati v R [1991] HCA 21; (1991) 172 CLR 1 at 23 per McHugh J; Cooper Brookes (Wollongong) Pty Ltd v Fed Cmr Taxation [1981] HCA 26; (1981) 147 CLR 297 per Gibbs CJ at 304 and 305; and for a useful discussion see also Oxley & Anor v Imperial Charter Pty Ltd (1996) NSW Conv R para 55-783 at pp 56,008-9 (NSW Commercial Tribunal).

Adopting that approach it is first necessary to ascertain the meaning of the words "resident of the State" from the context is which they appear. In doing so it is proper to have regard to the "he objects and purpose of the legislation and the content of the legislation as a whole.

21 An examination of the Firearms Act 1996 show that its object and underlying principles are clearly stated in section 3, which provides:

(1) The underlying principles of this Act are:

(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b) to improve public safety:

(i) by imposing strict controls on the possession and use of firearms, and

(ii) by promoting the safe and responsible storage and use of firearms, and

(c) to facilitate a national approach to the control of firearms.

(2) The objects of this Act are as follows:

(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(b) to establish an integrated licensing and registration scheme for all firearms,

(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,

(e) to ensure that firearms are stored and conveyed in a safe and secure manner,

(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms

22 In accordance with section 33 of the Interpretation Act 1987 I am entitled to take those objectives into account when construing section 11(3)(d).

23 There is no definition of the word ‘resident’ in the Firearms Act 1996. That being the case the words ‘resident of the State’ are to be interpreted in accordance with their ordinary and current meaning, unless there is something in the context which indicates an intention to depart from that meaning: Smoker v Pharmacy Restructuring Authority (1994) 125 ALR 157.

24 The Macquarie Dictionary defines resident as:

noun 1. someone who resides in a place

25 ‘Reside’ is defined thus:

1. to dwell permanently or for a considerable time; have one's abode for a time: he resided in Box Hill.

26 On an ordinary understanding the meaning of the word resident, it is my view that Mr Pang, living as he does in Hong Kong, is not a resident of NSW. The fact that he may have the immigration status of permanent resident of Australia and holds a subclass 155 visa does not make him a resident of NSW. He does not live here and has not done so for a considerable time.

27 That he owns a property in NSW in which he intends to reside in the future does not make him resident in the State. That property is presently let to tenants. His ownership of the property demonstrates no more than that he owns property in NSW. It does not demonstrate that he has his home here, or lives here. Indeed, all the evidence points to him having a home in Hong Kong and living there for some time. This conclusion, I note, is consistent with the decision in Burditt v Joslin [1981] 3 All ER 203, to which I referred the parties. There Donaldson LJ and Bingham J held the ownership of property, which did not carry with it a right of occupation because it was let to tenants, was not sufficient to show that an applicant for a firearms certificate, under section 26 of the Firearms Act 1968 (UK), resided within the area in which he had applied for a certificate.

28 I consider this interpretation to be consistent with and in accordance with object of the Firearms Act 1996.

29 The Commissioner, however, submitted that the words ‘resident of the State’ should be interpreted as if they read ‘permanent resident of the State’. The word ‘permanent’ being seen to add an additional requirement of an intention that the residence continue on a permanent basis. In support of this contention the Commissioner pointed to a claimed inconsistency between the provisions of section 11(3)(d) and section 27 of the Act which provides:

(1) A resident of another State or a Territory who is the holder of the equivalent of a category A or category B licence issued under the law in force in that State or Territory may notify the Commissioner in writing that he or she intends to reside on a permanent basis in this State.

(2) If the Commissioner is notified in accordance with subsection (1), the equivalent of the category A or category B licence (as issued by the other jurisdiction) is, subject to any direction of the Commissioner, taken to be the corresponding licence in force in this State for a period of 3 months from the time the person notified the Commissioner or until the person’s application for a licence under this Act is granted or refused (whichever is sooner).

(3) If a resident of another State or a Territory who is the holder of the equivalent of a category C, category D or category H licence notifies the Commissioner in writing that the person intends to reside in this State, the equivalent of the category C, category D or category H licence (as issued by the other jurisdiction) is, subject to any direction of the Commissioner, taken to be the corresponding licence in force in this State for a period of 7 days from the time the person notified the Commissioner.

(4) After the expiry of any such 7 day period, any person:

(a) who has duly notified the Commissioner in accordance with subsection (3), and

(b) who applied for a licence before the expiry of that period,

does not, while the person’s application for a licence is being determined by the Commissioner, commit an offence under section 7 or 7A in respect of the possession of a firearm

30 Central to the Commissioner’s submission was the use of the words ‘reside on permanent basis in the State’ in subsection (1), which the Commissioner argued was inconsistent with the residence requirement in section 11(3)(d). I disagree. In my view when examined the context in which the words ‘reside on permanent basis in the State’ are used in section 27, it rapidly becomes apparent that they are being used to achieve a different object to that sought to be achieved in s 11.

31 In his submissions Mr Sheather, for the Commissioner, did not make reference to section 26 which is an important provision relating to the recognition of interstate firearms licences for certain approved purposes, exempting holders form the requirement that they be authorised under the NSW Act. It operates in tandem with section 27, which provides what is to occur when the holder of an interstate licence becomes a resident of NSW. The requirement for this provision to operate is that the interstate licence holder intends to reside on a permanent basis in this State.

32 The objective of section 27 is vastly different to that sought to be achieved by section 11(3)(d). There is no inconsistency between them.

33 Next, the Commissioner pointed to what were said to be inconsistencies between section 11(3)(d) and clauses 55 and 55 of the Firearms Regulation 2006, which contain provisions relating to the issue of firearms permits to international visitors in defined circumstances. The Commissioner relied on these to again submit that the word resident in 11(3)(d) should be construed as ‘permanent resident.’ I do not accept that there is such an inconsistency. Moreover, if there was, any such consistency would go to the proper interpretation of the Regulation, not the Act. Section 88 of the Act provides for the making of the regulations which are to be ‘not inconsistent with this Act.’

34 Having reached those conclusions the next step is to ask whether it is necessary to consider the extrinsic material sought to be relied on by the Commissioner. This consists of the second reading speech. The Appeal Panel in Osborne made it clear that before taking that step I should be satisfied that there are good reasons for doing so.

35 Here there is no ambiguity, the provision is not obscure, and the interpretation I have reached (given the wording of the provision) is not manifestly absurd or unreasonable. There is therefore no good reason to resort to the second reading speech under section 34(1)(b) of the Interpretation Act 1987.

36 This leaves only section 34(1)(a) which allows me to consider extrinsic material to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision That, however, is not the purpose which the Commissioner seeks to achieve by asking me resort to that material. Rather, the Commissioner seeks to create uncertainty as to what is otherwise certain, and to point to a contrary legislative intention to that apparent on an examination of the legislation in question. While a purposive interpretation is mandated by the Interpretation Act 1987 (s.33), the intent of the legislature is first to be elicited form an examination of the legislation. Extrinsic material under subsection 34(1)(a) may only be used to confirm that meaning, not to "create doubt where none exists:" per Lee J in The Ombudsman v Commissioner of Police (1987) 1 NSWLR 386 at 396. As was explained by the High Court (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ) in Re Federation of Construction Contractors; Ex parte Billing [1986] HCA 74; (1986) 68 ALR 416 at 420, with respect to the equivalent provision in section 15AB of the Acts Interpretation Act 1901 (Cth):

"Section 15AB of the Acts Interpretation Act 1901 (Cth), as amended, does not permit recourse to that speech for the purpose of departing from the ordinary meaning of the text unless either the meaning of the provision to be construed is ambiguous or obscure or in its ordinary meaning leads to a result that is manifestly absurd or is unreasonable.

37 In the light of those authorities that there is no good reason to resort to the second reading speech under section 34(1)(b) of the Interpretation Act 1987 in interpreting section 11(3)(d).

38 As a result I conclude that, on the ordinary understanding of the words resident in the State in section 11(3)(d) of the Firearms Act 1996, Mr Pang is not so resident.

Is Mr Pang about to become a resident of NSW?

39 The internal review officer accepted that Mr Pang intends to move back to NSW and reside here, but did not accept that he is about to become a resident of NSW as a consequence. In reaching that conclusion the internal review officer observed that the move would not occur for at least 7 months, and that Mr Pang had not said when he was returning. The internal review officer adopted three months as a reasonable measure of when a person is about to become a resident of the state. There is no statutory basis for this. The Commissioner acknowledged this, and agreed that the three month criterion was ‘arbitrary’.

40 Mr Gates submitted that his clients intention to move to NSW to live in seven months time should have satisfied the Commissioner, given the 5 year length of a firearms licence, that Mr Pang was about to become a resident of NSW. I agree to the extent that the assessment of whether Mr Pang was about to become a resident had to be determined in the light of all the circumstances, including the nature and length of a firearms licence. I also agree that the adoption and implementation of the three months criterion was arbitrary and unauthorised.

41 On the basis of the information before the internal review officer at the time the decision was made I am, however, inclined to agree with the result he reached. I do not think that it can be reasonably said that a person who is planning to move to the state in seven or more months time is about to become a resident.

42 That, however, is not the end of the matter. In making my determination I am required to have regard to all the material now before me. Now, I have evidence that Mr Pang has booked a flight to Sydney on 1 March 2009, less than three months form now. I have no reason to doubt that he is about to become a resident of NSW.

43 An examination of the relevant provisions of the Firearms Act 1996 (sections 10.11 and 13) and the Administrative Decisions Tribunal Act 1997 (sections 63 and 66) reveals that there is nothing in the legislation which indicates that there is a temporal element to a decision to grant or refuse an application for a firearms licence, that requires this Tribunal, when reviewing such a decision, to make the correct and preferable decision as if it were being made at the same time as the decision under review. Rather, for much the same reasons as those expressed by the High Court in Shi v Migration Agents Registration Authority [2008] HCA 31, the legislation clearly envisages that the Tribunal may make its decision with reference to the events as they stand at the time of the review. The Tribunal does have a discretion to alter the time at which a decision its varies has effect (s.66 (2) Administrative Decisions Tribunal Act 1997).

Conclusion

44 Given that understanding of the law and the fact that I am satisfied that Mr Pang is about to become a resident of NSW, I consider the correct and preferable decision is to set aside the decision made by the Commissioner and substitute it with a decision to grant Mr Pang’s application for a Category AB firearms licence.

Orders

The decision of the Commissioner to refuse Mr Pang’s application for a firearms licence is set aside and substituted with a decision to grant Mr Pang’s application for a Category AB firearms licence.
AMENDMENTS:


22/01/2009 - Add additional line - Paragraph(s) Respondent Respresentative