DEPUTY PRESIDENT HENNESSY: The Appeal Panel makes the following orders:
1. Orders 1 and 2 of the Tribunal below are set aside.
2. The matter is remitted to the Tribunal as originally constituted with the following directions:
1. the Tribunal is to re-determine the matter according to law in accordance with these reasons;
2. the matter is to be re-determined without fresh evidence apart from any evidence of events or circumstances which have arisen since the hearing on 1 February 2016.
We give the following reasons for our decision.
On 28 January 2015 the Commissioner of Police suspended the applicant's category AB firearms licence under s 22 of the Firearms Act 1996 (NSW). The Commissioner subsequently revoked the licence under s 24 of the Firearms Act.
The Tribunal reviewed the decision and made the following orders:
1. The decision under review is set aside.
2. The decision is made that the applicant's category AB licence is suspended for a period of six months from the date of this decision.
The Commissioner has appealed to the Appeal Panel from the Tribunal's decision.
The Commissioner has appealed only on questions of law as permitted under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW). There are three main grounds for the appeal. Firstly, that the Tribunal did not have the power to suspend the firearms licence. Second that the Tribunal erred by not applying the test as to whether there was "virtually no risk" to public safety to allow the applicant to retain his firearms licence and third that the Tribunal gave inadequate reasons for its decision as to why the applicant's firearms should not be revoked.
Dealing firstly, with the first ground of appeal. There is no dispute that the Tribunal had jurisdiction to review the Commissioner's decision to revoke the licence, made under s 24 of the Firearms Act. That jurisdiction comes from s 75 of the Firearms Act and the provisions of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) giving the Tribunal administrative review jurisdiction. The issue is whether, when reviewing a decision under s 24 of the Firearms Act, the Tribunal had power to substitute a decision suspending the licence and implicitly imposing a condition that the applicant undergo further training. In our view the Tribunal does not have that power.
Commissioner of Police, NSW Police Force v Cseszko [2016] NSWCATAP 194 | Case summary | Zoe
The Commissioner's decision was made under s 24 of the Firearms Act which gives the Commissioner a power to revoke a licence. Section 24(2) provides that a licence may be revoked if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence. A licence may also be revoked for any other reason prescribed by the regulation. Clause 19 of the Firearms Regulation 2006 (NSW) provides a reason that it is not in the public interest for the applicant to retain the licence.
The Tribunal correctly identified the main issues in dispute as being whether the applicant is a fit and proper person to hold a firearms licence and whether it is against the public interest for him to hold the licence. But rather than make a decision as to whether the Commissioner's decision was the correct and preferable decision, exercising the functions under s 63 of the ADR Act, the Tribunal exercised a power which was not available to it at that stage of the decision making process.
Section 63 of the ADR Act sets out the Tribunal's role when reviewing an administratively reviewable decision. The Tribunal is to decide what the correct and preferable decision is having regard to the material then before it including any relevant factual material and any applicable written or unwritten law. Significantly, s 63(2) provides:
"For this purpose the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision."
The Tribunal may have understood that that provision permitted it to exercise a power to suspend a licence as provided for in s 22 of the Firearms Act. However, in our view, that power was not available to it because the Tribunal was reviewing a decision under s 24 as to whether or not the licence should be revoked. The power to suspend a licence under s 22 is available if the Commissioner is satisfied that there may be grounds for revoking a licence. In that case, the Commissioner may suspend the licence and request the person to provide the Commissioner with reasons as to why the licence should not be revoked. The Commissioner did so in this case and ultimately decided to revoke the licence. On review, the power to suspend in s 22 is not available to the Tribunal because that power has already been exercised as a first step before making a decision to revoke the licence.
This interpretation of s 63(2) of the ADR Act is supported by decisions cited in Federal Administrative Law by Justice Geoffrey Flick at paragraph 43[100] interpreting s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) which is the equivalent of s 63 of the Administrative Decisions Review Act. See also Nevell v NSW Police Force [2016] NSWCATAD 45 (7 March 2016) at [23].
Those authorities make it clear that the Tribunal's power under s 63(2) of the ADR Act is not at large. The Tribunal is confined to making decisions which were available to the administrator to make in the context of the circumstances that were before it at the time it made the decision under review.
We do not accept the respondent's submission that the power to suspend the licence was available to the Tribunal under s 22 of the Firearms Act. Nor was it available under s 19 as the Respondent submitted. Section 19 gives the Tribunal the power to impose conditions. The Tribunal was not imposing a condition on the licence by suspending it for a period or by requiring the applicant to undergo training.
We deal now with the third ground of appeal which was that the Tribunal provided inadequate reasons for the decision. The common law provides that a tribunal as well as a court must give adequate reasons for its decision. In Beale v GIO (1997) 48 NSWLR 430, Meagher JA identified at least three elements of adequate reasons. The second element was that a judge, or in this case a tribunal member, should set out any material findings of fact and conclusions or ultimate findings of facts reached. That requirement is also echoed in the Civil and Administrative Tribunal Act at s 62. Section 62 provides that, if written reasons are requested, a statement must be made of the findings on material questions of fact referring to the evidence or other material on which those findings were based as well as the Tribunal's understanding of the applicable law and the reasoning process that led the Tribunal to the conclusions it made.
In this case, although the Tribunal identified the issues as being whether the applicant was a fit and proper person to hold a firearms licence and whether it was against the public interest for him to hold a licence, the Tribunal only purported to make a finding on the applicant's fitness and did not make any findings in relation to the public interest. At [78] of the Tribunal's reasons, the Tribunal says:
"The concept of fitness and propriety has been said to have three components, honesty, knowledge and ability.
In my view, the applicant has demonstrated that he is somewhat lacking in his knowledge of the obligations placed on a licenced holder under the Act. I consider he would benefit from a refresher course in regard to these obligations.
While the Tribunal referred to the applicant's fitness and propriety in this paragraph, it made no finding as to whether the applicant is a fit and proper person to hold a licence. We direct on remittal that the Tribunal make such a finding. In addition, as already indicated, the Tribunal has not made a finding as to whether or not it is in the public interest for the applicant to continue to hold a licence and, again, we direct on remittal that the Tribunal do so.
Our conclusion is that the Tribunal has not made the relevant findings it is obliged to make when giving reasons for its decision. That constitutes an error on the part of the Tribunal.
The second ground of appeal which we deal with now is that the Tribunal did not apply the test as to whether there was "virtually no risk" to public safety to allow the applicant to retain his firearms licence (a test derived from case law). We do not need to resolve this issue because we have directed the Tribunal, when re-considering the application, to come to a view as to whether or not it is not in the public interest for the applicant to retain the licence. In the course of doing so, the Tribunal is to apply the correct law.
We now consider what consequential orders we should make having set aside orders (1) and (2) of the Tribunal's decision. Although the Civil and Administrative Tribunal Act empowers the Appeal Panel to deal with the internal appeal by way of a new hearing if the Panel considers that the grounds of appeal warrant this, we have decided not to take that course in this case. The Tribunal has already heard the evidence in this matter and the member who heard that evidence is in the best position to re-determine the matter on the basis of that evidence and in accordance with the Appeal Panel's directions. The matter is to be re-determined without any fresh evidence apart from any evidence of events or circumstances which have arisen since the hearing on 1 February 2016. The reason we have made that order is that in general a party is bound by the way in which it runs its case at first instance.
The grounds of appeal which have been made out all relate to questions of law. There was no fundamental challenge to the way the Tribunal dealt with the evidence. The Tribunal is in the situation where it needs to make a new decision as at the date of the hearing and in accordance with administrative law principles that decision is to be made on the basis of the relevant facts and circumstances as at the date of the hearing. Consequently, if anything has occurred since 1 February 2016 which is relevant to the applicant's fitness and propriety or to the public interest those matters should be before the Tribunal when it makes its decision. However, this is not an opportunity for either party to run its case again based on any regrets it may have had about how it ran or did not run the case at first instance.
[2]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 25 August 2016