Crowley v Barrett[1999] QDC 283

REGISTRY: CHARLEVILLE

APPEAL NUMBER: 5 OF 1999

AND

JUDGMENT - McGILL D.C.J.

Judgment Delivered: 5^th November 1999

Catchwords:

STATUTES - Amendment of Act - amendment does not affect application for renewal of licence made prior to commencement of amending Act - Weapons Act 1990 s.18; Acts Interpretation Act 1954 s.20(1)

Esber v. Commonwealth of Australia (1991) 174 CLR 430 - followed

McLean v. James Cook University of North Queensland [1994] 1 Qd.R. 399 - followed

FIRE, EXPLOSIVES AND FIREARMS - Weapons Act 1990 - whether amendment affected application for renewal of licence already made - Weapons Act 1990 ss. 18, 177.

REGISTRY: CHARLEVILLE

APPEAL NUMBER: 5 OF 1999

AND

JUDGMENT - McGILL D.C.J.

Delivered the 5th day of November 1999

This is appeal from a decision by a Stipendiary Magistrate who allowed an appeal by the respondent before me from a decision of the appellant made under the Weapons Act 1990 (“the Act”). The appeal was brought to the Magistrate under s.142 of the Act, and from his decision there is an appeal to this court under s.149, but only on a question of law.

The facts are similar to those in the matter of Crowley v. McKay (Charleville Appeal 6/99), and this appeal raises the same questions of law that arose in that appeal, although there are two additional complications. The first is whether there was also a decision to revoke the respondent's licence under s.29 of the Act, and the second is whether the respondent's position was changed by the commencement of an amending Act the day before the appellant's decision was made.

Was There A Revocation?

The respondent, who was the holder of a shooters licence, lodged an application to renew on about 7 May 1997, and that application was decided by the appellant on 27 March 1998, when according to his letter of that date the application for renewal was refused. With that letter, however, was sent a Notice of Revocation, Form 7, by which the respondent was advised that his “firearms licence” number 12000030-00 is revoked for the following reasons:

An affidavit by the appellant sworn 16 November 1998 and filed in the Magistrates Court does not depose to any decision to revoke, and indeed says:

For reasons given in Crowley v. McKay, in my opinion that is not an accurate statement of the law, and I do not think that the affidavit of the appellant reflects his view as at 27 March 1998. The affidavit speaks of determining an application for a firearms licence in accordance with sections 10 and 15 of the Act, whereas his contemporaneous letter speaks of refusing an application for renewal of the licence. That letter says that “Enclosed is a renewal/revocation notice outlining the reasons for the refusal/revocation of the Weapons Act licence”. It would follow that the revocation notice was merely intended to record the reasons for the decision not to renew, and was not intended to reflect a separate decision to revoke.

It is difficult to see why there would be any need to revoke the licence at that time, because the effect of s.174(1)(a) of the Act was that the existing licence was only extended until the respondent was advised in writing of the outcome of his application. Although on 27 March 1998 there was a licence to revoke, there was really no point in revoking it in circumstances where it would automatically cease to exist as soon as the letter and enclosed notice were delivered to the respondent. There is a discretion in an authorised officer under s.29 of the Act to revoke a licence, but this is done “by a revocation notice given to a licencee”, so the act of revoking is not complete until the notice was given, at which point the licence ceased to exist anyway.

Further, the reasons stated were not really appropriate to a decision to revoke; it was not the case that the respondent was “disqualified under the Weapons Act 1990 from holding the licence”, since the circumstances that he had been convicted of an offence against a law in force in Queensland involving the possession of a weapon was a matter which under s.29(1) of the Act merely gave rise to a discretion to revoke the licence, since the section was the word “may”. It was correct to say that the fact of that conviction disqualified a person from obtaining a licence in view of the provisions in s.10(6) of the Act, but a decision under s.29 is not a decision on an application to obtain a licence. Nor is there any basis for a conclusion that in the respondent's application for the licence which he held as at 27 March 1998, an application made on 12 August 1991, he had stated any false or misleading material particular; the matter in fact relied on by the appellant was the failure to disclose in the application dated 7 May 1997 a conviction on 15 February 1996, Section 13 of the Act is concerned with an application for a licence, and a failure to provide information specified in that section would hardly be a ground for revocation of the licence under s.29.

It seems to me that the correct interpretation of what has occurred is that the appellant decided to refuse the application of the respondent, and simply used the notice in Form 7 to record his reasons for that decision (inappropriately) but did not go on to make a separate decision to revoke.

In any case, if there was a decision to revoke, that is a decision which is susceptible to appeal pursuant to s.142(1)(e) of the Act. The Notice of Appeal to the Magistrates Court dated 9 April 1998 does not in terms appeal against a decision to revoke, although I note that on 14 April 1998 an acting Stipendiary Magistrate ordered that the decision “revoking the applicant's firearms licence be stayed until such time as the appeal filed in this count on 9 April 1998 has been heard and determined”. That occurred on 4 December 1998 when the Magistrate, in the decision under appeal before me, upheld the appeal, and ordered the decision of the authorised officer be set aside and the appellant's application to renew his licence be granted. Such an order would be ineffective unless it extended to the application to revoke, and I think that if there was a decision to revoke, that decision was also set aside by the Magistrate.

The remaining additional point is that the decision of the appellant in this case was taken on 27 March 1998, the day after s.29 of the Police and Other Legislation (Miscellaneous Provisions) Act 1998 (“the 1998 Act”) commenced, being the date of assent. By the 1998 Act, s.18 was amended to insert a subsection (8) as follows:

The affect of the application of subsection 10(6) would appear to be that a person who, within the five year period immediately before the day he applied for the renewal of a licence, had been convicted of or discharged from custody on sentence after he had been convicted of any of the offences described in para. (a) or had had a domestic violence order made against him, would be necessarily disqualified from obtaining the renewal of the licence, by the application of subsection (2)(e). Since that is the case with the respondent, the question arises whether the amendment applied to the determination of his application for renewal. The Magistrate held that s.20(2)(c) of the Acts Interpretation Act applied, and that on making an application for renewal the respondent obtained a right to have that application considered and determined pursuant to s.18 as it then stood, so that the amendment of that section only applied to applications for renewal made after the commencement of the amendment. He referred to a number of authorities on the operation of that provision of the Acts Interpretation Act.

There are no transitional provisions which are relevant to the amendment made by the 1998 Act, and it follows in my opinion that Parliament is to be taken to have intended that the ordinary provisions of the Acts Interpretation Act as to the consequences of amendment statutes would apply. Broadly speaking, the effect of those provisions is that amendments which are merely procedural affect proceedings which are in train at the time when the amendment commences, but amendments which affect the substantive rights of someone do not apply to proceedings which are already in process. For example, general amendments to rights of appeal do not affect appeals which are pending at the time when the amendments commenced. That approach is well established in the case of judicial proceedings, but it was also applied by the High Court in Esber v. Commonwealth of Australia (1991) 174 CLR 430 at 440 to the right to have an application to the Administrative Appeals Tribunal determined without regard to an amendment to the substantive law made after the application had been lodged. The decision of the Administrative Appeals Tribunal is an administrative decision, not a judicial decision. The principle therefore extends to applications for administrative determination, at least when there is a right to a decision. In the present case the respondent, by applying for a renewal of his licence, had invoked the exercise by the appellant or some other authorised officer of the power conferred by s.18 of the Act. By s.18(4) once an application for renewal has been made the authorised officer must decide it, so here too the applicant, on making an application, acquires a right to have that application determined, which must mean a right to have an authorised officer decide his application according to law. That right was not effected by the amendment of s.18 by the 1998 Act. That the word “right” in s.20(1)(c) should be construed in a broad way has the support of the Chief Justice in McLean v. James Cook University of North Queensland [1994] 1 Qd.R. 399 at 401. The reasoning in that case indicates that the same conclusion may be reached under s.20(1)(b) on the ground that the application for renewal was something begun prior to the commencement of the 1998 Act. In my opinion, the Magistrate's decision on this point was correct.

It was submitted on behalf of the appellant that this conclusion was excluded by s.177 of the 1990 Act which in subsection (1) provides:

The “commencement” means the commencement of the Weapons Amendment Act 1996, which occurred on 15 January 1997. Obviously an application can only be “not decided on the commencement” if it is made prior to the commencement, which was not the case with this application which was made almost four months later. In my opinion, s. 177 clearly does not apply to this application. The only relevance of s.177 is that it is an example of what the legislature does when it intends the provision of s.20(2)(c) of the Acts Interpretation Act not to apply to applications which have been made prior to the commencement of an amending Act but have not then been decided. I do not think that it is a provision which goes on applying each time there is a subsequent amendment to the Act.

Once this point has been reached, the appeal in the case of Mr. Barrett raises the same issues as arise in Crowley v. McKay. This appeal was filed on 28 June 1999, some 6½ months after the decision from which the appellant seeks to appeal. That, in my opinion, for the reasons given in that matter, is not something done as soon as reasonably possible, so the appeal is out of time and is incompetent and is therefore struck out. For the same reasons given in Crowley v. McKay, if I were of the view that the appeal were competent and properly before me, the appeal would be dismissed. I order the appellant to pay the respondent's costs of the appeal to be assessed.