The Commissioner of Police, NSW Police Force has appealed from a decision of the Tribunal made under the Firearms Act 1996 (NSW). The background to the appeal is that the Commissioner of Police revoked Mr Davies' category ABH firearms licence and his large calibre pistol permit. Mr Davies applied to the Tribunal for a review of those decisions under the Administrative Decisions Review Act 1997 (NSW). The issues for the Tribunal were whether Mr Davies is no longer a "fit and proper person" who could "be trusted to have possession of firearms without danger to public safety or the peace" and whether it would be "contrary to the public interest" for Mr Davies to continue holding a licence: Firearms Act, s 11(3)(a), s 11(7) and s 24; Firearms Regulation 2017 (NSW) clause 20. Corresponding provisions apply to the revocation of a permit.
There were two categories of evidence. The first relates to an incident on 23 February 2023. The Tribunal accepted Mr Davies' unchallenged version of what happened during that incident and made no adverse findings against him. The Tribunal concluded that that evidence did not raise any issues of fitness and propriety or the public interest that would prevent the re-issuing of a firearms licence to Mr Davies.
The second category of evidence relates to the wording of a letter to police in April 2023 and the content of a sign installed in the front yard of Mr Davies' property. The Tribunal expressed "concern" about this evidence and made the following finding at [80]:
The Applicant's solicitor has submitted that these should not be interpreted as an indication that the Applicant will not comply with his obligations as a licensee should he be permitted to hold a firearms licence. Even if this submission is accepted, it is not apparent from the wording of the letter, or signage and the Applicant's evidence does not address the issue.
At [83] and [84] the Tribunal went on to find that the signage "demonstrates an incorrect understanding of the Act"; that this deficiency has not been adequately addressed and that concerns remain in regard to the Applicant's understanding of the obligations of a licensee. The Tribunal reached that conclusion because of the lack of evidence from the Applicant in regard to the intention and wording of the signage and the April 2023 letter to police. At [85], the Tribunal found that:
In my view, there remains a risk to the public if licensees do not understand their obligations under the Act and the need to comply with other aspects of the firearms legislation. The Applicant will need to address this issue before he should be permitted to again have access to firearms.
We understand from these findings that the Tribunal considered that it was not in the public interest for Mr Davies to hold a licence. The Tribunal came to the following conclusion at [86]:
In my view, the Applicant would need to take steps to remove any basis for these concerns before I would be comfortable that there is virtually no risk to the public if he is to be reissued with a firearms licence. This could be achieved by completing a course in relation to a licensee's obligations in regard to compliance with the Act. The Applicant should be given the opportunity to take that step.
At [88] the Tribunal exercised the power in s 63(3)(d) of the Administrative Decisions Review Act to set aside the decision and remit the matter for reconsideration by the administrator.
The Tribunal's orders were as follows:
1. The decision under review is set aside
2. The matter is remitted for reconsideration by the Respondent in accordance with the recommendations of the Tribunal.
The Tribunal made the following recommendation at [89]:
If the Applicant completes a course in relation to his obligations under the Act successfully, I recommend that the category ABH firearms licence and large calibre pistol permit be reinstated.
[2]
Grounds of appeal
The Commissioner of Police appealed on five grounds:
1. The Tribunal applied the wrong test or failed to perform its statutory task under s 63(1) of the Administrative Decisions Review Act.
2. The Tribunal exceeded the powers granted by s 63(3) of the Administrative Decisions Review Act.
3. The Tribunal failed to give adequate reasons.
4. The Tribunal misapprehended the effect of the Decision or engaged in unreasonable or irrational reasoning.
5. The Tribunal denied the Commissioner procedural fairness.
The Commissioner of Police sought the following orders:
1. The orders of the Tribunal made on 29 July 2024 are set aside.
2. The decision by the Commissioner of Police to revoke the category ABH licence and the large calibre pistol permit held by the applicant be affirmed.
Alternatively, the Commissioner of Police sought the following orders:
1. The orders of the Tribunal made on 29 July 2024 are set aside.
2. The matter is remitted to the Tribunal for redetermination according to law and in accordance with the Appeal Panel's reasons.
In written submissions, the Commissioner proposed that the Tribunal's decision be set aside. The Commissioner then characterised the question as "whether the Appeal Panel should proceed to determine Mr Davies' review application on the merits or remit the matter for reconsideration."
In his Reply, Mr Davies "concedes that the decision below was infected by an error of law". In oral submissions Mr Davies made it clear that he accepted all the grounds of appeal. Mr Davies foreshadowed that he would ask the Appeal Panel to determine the merits of the decision and seek to present additional evidence in support of his application. Each party sought leave to file additional evidence.
[3]
Issues
The following issues arise for determination. We have indicated our conclusion in brackets.
1. Has the Commissioner appealed on a question of law and, if so, has the Tribunal made any errors of law in relation to any of those questions? (Yes)
2. What orders should the Appeal Panel make? (To set aside the Tribunal's decision and substitute a decision affirming the administrator's decision.)
[4]
Has the Commissioner appealed on a question of law and, if so, has the Tribunal made any errors of law in relation to those questions?
[5]
Question of law?
A party may appeal "as of right on any question of law or with leave of the Appeal Panel, on any other ground": Civil and Administrative Tribunal Act 2014 (NSW), s 80(2)(b).
The Commissioner submitted that it was an error of law to set aside the revocation decision in circumstances where the Tribunal had concluded that, at that time of its decision, there remained a risk to the public associated with Mr Davies' knowledge and obligations under the Firearms Act. Related to that error, the Commissioner submitted that the Tribunal exceed the powers available to it in the context of an administrative review under s 24 of the Firearms Act.
Based on these two grounds of appeal the question of law can be framed as follows: once the Tribunal was satisfied that it was not in the public interest for Mr Davies to continue to hold the licence or permit, did the Tribunal have power to set aside the administrator's decision and remit the matter under s 63(3)(d) of the Administrative Decisions Review Act?
[6]
Has the Tribunal made an error on a question of law?
"The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence": Firearms Act, s 24(2)(d) and Firearms Regulation clause 20.
The question of law relates to the scope of the power in 63(3)(d) of the Administrative Decisions Review Act:
63 Determination of administrative review by Tribunal
(1) In determining an application for an administrative review under this Act of 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 the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) 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.
(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:
(a) to affirm the administratively reviewable decision, or
(b) to vary the administratively reviewable decision, or
(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or
(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The Tribunal's powers under s 63(1) are confined to determining "what the correct and preferable decision is" having regard to the any relevant factual material and any applicable written or unwritten law. The Tribunal was not satisfied that Mr Davies posed virtually no risk to public safety if given access to a firearm: Decision at [86]. That was the reason for recommending that he complete a course in relation to his obligations under the Firearms Act "before" he was to be "reissued" with a licence and permit: Decision at [86]. The Tribunal was satisfied that it was not in the public interest for Mr Davies to continue to hold the licence or permit. (See Firearms Regulation, clause 20 and [85] and [86] of the Decision.)
There is no guidance in the Administrative Decisions Review Act, or in the second reading speech, as to the circumstances in which the Tribunal has power to set aside the administrator's decision and remit the matter for reconsideration. Guidance is available from cases interpreting the similarly worded provision in s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) (repealed):
In relation to the reviewable decision, the Tribunal must make a decision:
(a) affirming the reviewable decision; or
(b) varying the reviewable decision; or
(c) setting aside the reviewable decision and:
(i) making a decision in substitution for the reviewable decision; or
(ii) remitting the matter to the decision - maker for reconsideration in accordance with any orders or recommendations of the Tribunal.
The Appeal Panel referred to decisions interpreting that provision in Webb v Port Stephens Council [2020] NSWCATAP 152 at [36] and [37]:
Although it is not necessary to consider the issue, the Federal Court has provided useful guidance as to the circumstances in which a decision maker should remit a matter as part of the final orders. In Minister for Immigration & Multicultural Affairs v Perth City Mission [2000] FCA 397 at [23], the Federal Court was interpreting s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) which is in similar terms to s 63(3)(d) of the Administrative Decisions Review Act:
The power of the Tribunal to set aside a decision and remit the matter for reconsideration only arises where the Tribunal is unable to make, and has not made, a decision in substitution for the decision set aside. (See: Commonwealth of Australia v Beale [1993] FCA 294; (1993) 30 ALD 68 per Neaves J at 70.) Section 43(1)(c)(ii) is directed to a circumstance where the decision under the enactment has not been made where the Tribunal is of the view that it is unable to make the decision required by the enactment, for example, where a requirement or condition must be satisfied before a decision can be made. (See: Re SLE Medical Pty Ltd and Industry Research and Development Board (1988) 10 AAR 13.) The terms of s 43(1)(c)(ii) of the AAT Act enable the Tribunal to assist the decision-maker to whom the matter is returned by offering "directions or recommendations" that appear to be appropriate on the material before the Tribunal.
The decision in Commonwealth of Australia v Beale had been made under the Freedom of Information Act 1982 (Cth). We set out below the full quote referred to above: Commonwealth of Australia v Beale [1993] FCA 294; (1993) 30 ALD 68 at [10]:
There is, thus, an express power in the Tribunal to set aside a decision under review and to remit the matter for reconsideration. However, it may only do so where, in order to give effect to the conclusions to which the Tribunal has come, it is appropriate to set aside the decision under review but the Tribunal is not in a position to formulate a decision in substitution for the decision set aside. That was not the situation in the present case. The Tribunal had reached a firm conclusion that each of the documents which the Tribunal had to consider was an exempt document so that the appropriate order for the Tribunal to have made was to affirm the decision under review
One example of a situation where the Tribunal will be unable to make a decision is where a requirement or condition must be satisfied before a decision can be made. In Federal administrative law (looseleaf) Westlaw AU at AAT 43-190 Flick referred to a decision where there was a statutory power to require that an applicant for a pilot's licence undergo an examination:
In Re Sherwell and Department of Aviation (1985) 3 AAR 295, the Administrative Appeal Tribunal set aside a decision cancelling the applicant's private pilot licence. In that case the Tribunal formed the view that the applicant should undergo an examination as to his fitness or proficiency to hold a licence. The Secretary had the power to require such examination pursuant to reg 65. Accordingly, the tribunal set aside the decision of cancellation and exercised the powers conferred by s 43(1)(c) to remit the matter to the Secretary in accordance with a recommendation as to the use of the provisions of reg 65.
In Re Bartholomai v Department of Families, Community Services and Indigenous Affairs [2010] AATA 553 the Administrative Appeals Tribunal remitted the matter to the department to calculate the amount of debt that had accumulated during a particular period. This is another example of circumstances where a tribunal is not in a position to formulate a decision and remittal under the equivalent of s 63(3)(d) is appropriate.
Flick provides this helpful summary in Federal administrative law (looseleaf) Westlaw AU at AAT 43.200:
Section 43(1)(c) empowers the tribunal to set aside the decision under review and do one of two things. The first is to make a decision in substitution for the decision which is set aside. This involves the tribunal exercising and exhausting the powers of the primary decision-maker. Alternatively the tribunal can remit the matter for reconsideration to the primary decision-maker and, in so doing, may give the primary decision maker a direction or make a recommendation to reflect conclusions the tribunal had reached about the matter falling for decision. However the tribunal may only follow this latter course when it is "remitting the matter for reconsideration" which plainly contemplates that the primary decision-maker will again exercise the power authorising the making of the decision. While a direction or recommendation may tend to circumscribe the way the primary decision maker is to exercise that power and decide the matter, subpara (ii) contemplates that there will be some residual function to be performed by the primary decision maker involving the exercise of the relevant statutory power. That is, the tribunal would not itself have exercised and exhausted the decision-making power.
Similarly, s 63(3)(c) and (d) of the Administrative Decisions Review Act empower the Tribunal to set aside the decision and do one of two things. Under s 63(3)(c), the Tribunal may make a decision in substitution for the decision set aside. In that case, the Tribunal exercises and exhausts the powers of the administrator. Alternatively, under s 63(3)(d), the Tribunal has power to remit the matter to the administrator for reconsideration. But the Tribunal may only do so where it is "unable to make" or is "not in a position to formulate" a decision in substitution for the decision set aside. That will be the case where there is "some residual function to be performed by the primary decision maker involving the exercise of the relevant statutory power". Examples include where a requirement or condition must be satisfied before a decision can be made or where a calculation needs to be made which the Tribunal is not in a position to make.
In this case, the Tribunal was satisfied that it was not in the public interest for Mr Davies to continue to hold the licence or permit. At that point in the decision making process, the Tribunal was in a position to make a decision in substitution for the decision set aside. There was no residual function to be performed by the administrator involving the exercise of the relevant statutory power. The correct decision was to affirm the Commissioner's decision.
For the reasons we give below, it is not necessary to address any of the other grounds of appeal.
[7]
What orders should the Tribunal make?
Under s 80(3) of the Civil and Administrative Tribunal Act, the Tribunal may deal with an internal appeal by way of a "new hearing":
80 Making of internal appeals
. . .
(3) The Appeal Panel may -
(a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and
(b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
In determining an internal appeal, the Tribunal has the powers under s 81 of the Civil and Administrative Tribunal Act:
81 Determination of internal appeals
(1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following -
(a) the appeal to be allowed or dismissed,
(b) the decision under appeal to be confirmed, affirmed or varied,
(c) the decision under appeal to be quashed or set aside,
(d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it,
(e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel.
(2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.
In written submissions both parties sought a re-hearing on the merits either by the Appeal Panel or by the Tribunal following remittal. The Appeal Panel asked the parties why there should be a re-hearing on the merits when none of the grounds of appeal sought to disturb the Tribunal's factual findings.
In response, the Commissioner of Police did not press their written submission that the appeal should be dealt with either by way of a new hearing or remitted to the Tribunal for reconsideration. Instead, the Commissioner of Police agreed that if either ground 1 or ground 2 was upheld, the Tribunal's findings of fact support an order that the decision be set aside and that a decision affirming the administrator's decision be made in substitution for that decision. The effect of such an order is that Mr Davies licence is revoked.
[8]
Orders
1. The Tribunal's decision is set aside.
2. In substitution for that decision the following decision is made:
The decision of the Commissioner of Police, NSW Police Force, to revoke Mr Davies' ABH firearms licence and his large calibre pistol permit is affirmed.
[9]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
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: 20 February 2025