Commissioner of NSW Police v Murphy [2024] NSWCA 311

Commissioner of NSW Police v Murphy [2024] NSWCA 311 · Read the judgment on AustLII

Catchwords: AVOs – Firearms licences – revocation or extension to avoid legislative consequences

Here the Court of Appeal has held it is not permissible to revoke an existing Apprehended Violence Order in order to avoid automatic legislative consequences, including a prohibition on holding a firearms licence. Nor will it be permissible to extend the order if the main reason it is being extended is to enable revocation (as distinct from expiry).

The respondent (this was an appeal by the Commissioner of Police) consented, without admissions, to a six-month Apprehended Domestic Violence Order (‘ADVO’) made in favour of his son. One of the consequences of that ADVO was that the respondent was automatically prohibited from holding a firearms licence for 10 years, because of s 11(5)(c) of the Firearms Act. About a month before the ADVO expired, the respondent went back to the Local Court and applied for the order to be revoked (‘revoked’ orders do not attract the ten-year prohibition, but expired orders do). The grounds included that his son was no longer in need of protection, but also (crucially to this summary) flagged that the respondent was seeking to avoid the prohibition on obtaining a firearms licence. The magistrate couldn’t finalise the matter that day, and an expired AVO cannot be revoked (see Wass v DPP (NSW) [2023] NSWCA 71 [NOTE FOR ED.: CROSS-LINK TO JUNE 2023 CASENOTE?]), so the Magistrate made an ‘interim’ order extending the ADVO, preserving the position so as to resolve the issue at a later date. Eventually, on a future court date, the ADVO (as extended) was revoked by a magistrate. The Commissioner of NSW Police sought judicial review of the (purported) revocation, initially to a Supreme Court judge sitting alone, and when that judge reaffirmed the Local Court decision, further appealed to the Court of Appeal. The assertion made was that both the extension and the revocation were made for an improper purpose – that is, to avoid the consequences under the Firearms Act, rather than for the proper statutory purpose of protecting people from domestic violence.

McHugh JA (Basten JA agreeing with additional reasons; Payne JA agreeing with both) observed that a statutory power may be exercised only for the purpose for which it is conferred. The purported exercise of a power for a purpose alien to those for which it is conferred is not a proper exercise of the power. Establishing what is, and is not, an alien purpose is an exercise of statutory construction (at [12]-[13]). The principal purpose for which an ADVO may be made is for the protection of people from domestic violence, intimidation (including harassment) and stalking. However, the effect of an order on the defendant is not irrelevant (at [80]-[82]; [93]). The power to extend an order should be read as subject to the same conditions and restrictions, and to be exercisable for the same purpose, as the power to make a new order (at [102]). In the result, an order purporting to extend an ADVO that is not made for a substantial purpose of protecting people from domestic violence, intimidation (including harassment) and stalking is not made for a proper purpose (at [104]).

Revoking an ADVO to disengage the prohibition in s 11(5)(c) of the Firearms Act is a purpose that would defeat parliament’s intention and the operation of its legislative scheme; it would be alien to the purpose for which parliament conferred the power to revoke in s 73 of the Crimes (Domestic and Personal Violence) Act (at [117]). That is, the purpose of revoking an ADVO in order to disengage the ten-year firearms licence prohibition is not a proper one (at [125]). It would not ordinarily be consistent with the guidance in the legislation to exercise the s 73 power to revoke if to do so would diminish the safety and protection of persons, including children, who experience or witness domestic violence (at [120]).

That is, in this case the order purporting to extend the ADVO was invalid because it was no part of the purpose of the Magistrate to protect the respondent’s son or anyone else (at [124]). Moreover, the purpose of revoking the order in order to disengage the prohibition in s 11(5)(c) of the Firearms Act was not a proper one, so that extending the order in order to achieve that (alien) purpose was similarly not a proper purpose for the extension (at [125]).

Practitioners will immediately observe that this brings into sharp focus the importance of advising clients, at the time they are considering consenting to an AVO, of the potential consequences of any such order. Those consequences include prohibitions against issuing of firearms licences (as seen in this case), consequences for those working in the security industry, occasional residential tenancy issues, and potential issues with other forms of employment (including those involving Working With Children checks). These and other topics need to be flagged with a client before they take the step of agreeing to any order, since seeking revocation as a result of unforeseen consequences will, given this decision, be entirely impermissible.