Commissioner of Police, NSW Police Force v Holmes

NCAT Appeal Panel|2021-06-25

Overview

The NSW Commissioner of Police suspended Mr Holmes Category AB firearms licence for 12 months after an incident at his home. To assist in deciding whether to revoke the licence the Commissioner required Mr Holmes to obtain a mental health risk assessment. Mr Holmes sought administrative review by NCAT of that "requirement", contending that it amounted to the imposition of a condition on his firearms licence. The Commissioner moved for the application to be summarily dismissed because the "request" was not a "requirement" and did not attach to the licence. The Tribunal rejected the Commissioner's application finding that NCAT does have jurisdiction to review the decision: Holmes v Commissioner of Police [2021] NSWCATAD 71. The Commissioner now appeals from that decision.
The Tribunal has "administrative review jurisdiction" over a decision if "enabling legislation" specifies that decisions of a particular kind may be reviewed: Administrative Decisions Review Act 1997 (NSW), s 9(1). The Firearms Act 1996 (NSW) is enabling legislation and relevantly provides that the Tribunal may review "the revocation of a licence…" and "a condition imposed by the Commissioner on a licence or permit issued to the person": Firearms Act, ss 75(1)(b) and 75(1)(c).
In our view, the so-called request was in fact a requirement to undertake a mental health risk assessment but it was not "a condition imposed by the Commissioner on a licence" nor did it purport to be such a condition: Administrative Decisions Tribunal Act, s 6(3). It follows that the Tribunal does not have jurisdiction to review the decision to impose the requirement.
It is not necessary for us to determine the lawfulness of the requirement to undertake a mental health risk assessment. However, in our view, the Commissioner had no power to impose that requirement.

Background to the proceedings

On 25 August 2020, the Commissioner suspended Mr Holmes' firearms licence for 12 months. A notice suspending a firearms licence must state "the reasons for suspending it" and request that "the person provide the Commissioner with reasons why the licence should not be revoked". 22 Suspension of licence (1) The Commissioner may, if the Commissioner is satisfied there may be grounds for revoking a licence, suspend the licence by serving personally or by post on the licensee a notice - (a) stating that the licence is suspended and the reasons for suspending it, and (b) requesting that the person provide the Commissioner with reasons why the licence should not be revoked. …
The reason the Commissioner gave in the notice of suspension was that it was "not in the public interest" for Mr Holmes to continue to hold the licence. Section 22 establishes what is in effect a "show cause" procedure. The notice of suspension must request the person to provide "reasons why the licence should not be revoked". Those reasons will then be taken into account in determining whether to revoke the licence.
In this case, the Commissioner merely gave Mr Holmes the option of providing reasons. That is apparent from the wording of the notice of suspension. Mr Holmes was told that he "may write to the Firearms Registry giving reasons why your licence/permit should not be revoked". (Emphasis added.) Our observation is relevant to the lawfulness of the Commissioner's processes, not to any issue on appeal.
Two months after serving the notice of suspension, the Commissioner wrote to Mr Holmes stating that the Firearms Registry "had received information relating to your mental health which raises concerns that your ability to possess and use firearms may be impaired". The letter, dated 27 October 2020, went on: "As per COPS E 75051927, it has been revealed that you suffer from Asperger's Syndrome. concerns have been expressed that your actions and behaviour are worsening, and you have been showing signs of being in less control, having more frequent outbursts and that you are not coping in unfamiliar situations. Due to this incident you are required to undertake a mental health risk assessment in order for your firearms licence to be properly assessed." (Emphasis added).
The letter then outlined the procedural steps Mr Holmes should take to obtain a mental health risk assessment from a psychologist or psychiatrist. The letter ended by stating that: "Upon review of the mental health risk assessment, a decision will be made by the Firearms Registry as soon as possible regarding your licence."
On 24 December 2020, Mr Holmes applied to the Tribunal for a review of the decision that he be required to undertake a mental health risk assessment and an interim order to stay any decision to revoke his licence. The Tribunal listed the application for an interim order for hearing on 19 January 2021. The Commissioner applied for Mr Holmes' substantive application to be dismissed because the Tribunal did not have jurisdiction to review the decision to suspend his firearms licence or the decision requiring him to undertake a medical assessment. That application was made under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances - (a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate, (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings, (d) if the Tribunal considers that there has been a want of prosecution of the proceedings. (Emphasis added.) …
A week before the hearing, the Commissioner wrote to Mr Holmes again inviting him to withdraw the application because the Tribunal does not have jurisdiction to review the so called "request" to undertake a mental health risk assessment. The letter, dated 13 January 2021, noted that the Commissioner had not received an assessment and stated that: "If an Assessment is not received, or if you do not contact the Firearms Registry to seek an extension, your firearms licence will be revoked in the future." (Emphasis added).

Tribunal's decision

The Tribunal decided that the decision to suspend Mr Holmes' firearms licence is not a reviewable decision, noting that neither the Firearms Act nor the Firearms Regulation 2017 (NSW) gives the Tribunal power to review a decision to suspend a firearms licence. The Tribunal dismissed Mr Holmes' application to the extent that it sought a review of the suspension decision. No ground of appeal relates to that order.
The Tribunal then considered whether the Commissioner had imposed a condition on Mr Holmes' licence. Section 19 of the Firearms Act provides that "a licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose". At [16] the Tribunal considered the meaning of the word "issued" in s 19: "I do not understand that to mean that it is only at the time of issue that a condition may be imposed; consequently, and consistent with the privilege associated with holding a firearms licence, conditions may be imposed as a licence holder's circumstances change or are perceived by the Commissioner to have changed."
The Tribunal went on to consider whether, as asserted by Mr Holmes, the Commissioner had required him to provide an assessment. Referring to the letter of 27 October 2020, the Tribunal found at [18] that: "The inference in the letter, while couched as a 'request', was clearly that compliance was not optional. That was confirmed, in my view, by the letter by the Respondent's solicitor dated 13 January 2021 which noted that as the applicant had not supplied the Assessment, his licence 'will be revoked in the future'."
Having made those findings, the Tribunal concluded that the requirement to provide an assessment amounted to the imposition of a condition on Mr Holmes' licence. As the Tribunal has jurisdiction to review that kind of decision, the Tribunal refused the Commissioner's application to summarily dismiss the proceedings. The Tribunal made the following orders: 1. Being satisfied that the decision in relation to suspension is not an "administratively reviewable decision", the Tribunal lacks jurisdiction to conduct administrative review and, in that regard, the application is dismissed. 2. Insofar as the application relates to the imposition of a condition on the Applicant's firearms licence, the Tribunal has jurisdiction to conduct administrative review and, in that regard, decides to deal with the Applicant's application to the Tribunal for review. 3. Consequently, the Respondent's application to dismiss the proceedings under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 is refused. 4. Within 14 days the parties are to file Short Minutes of Order setting out a timetable for the filing of evidence and submissions with a view to a setting an early hearing date in relation to the imposition of the condition.
The Tribunal did not need to consider the evidence provided by the Commissioner or Mr Holmes as to the circumstances leading up to the decision to suspend his firearms licence. Similarly, we do not need to consider that evidence, or any further evidence filed on appeal.

Two grounds

There are two grounds of appeal. First, that the Tribunal made a legal error in finding that the letter dated 27 October 2020 from the Firearms Registry to Mr Holmes requesting that he obtain a mental health risk assessment was capable of being a condition imposed on his licence. Alternatively, the Tribunal erred in finding that the letter purported to impose a condition on Mr Holmes' licence. To the extent necessary, the Commissioner sought leave to appeal.

Ancillary or interlocutory decision?

An issue in this appeal is whether the Tribunal's decision not to summarily dismiss Mr Holmes' application for lack of jurisdiction was an interlocutory decision or an ancillary decision. An appellant has the right to appeal from an ancillary decision on a "question of law": NCAT Act, s 80(2)(b). In contrast, an appellant must obtain the Tribunal's permission or "leave" before appealing from an interlocutory decision: NCAT Act, s 80(2)(a).
Highlighted below are the relevant parts of the definitions of "ancillary" and "interlocutory" decisions in s 4 of the NCAT Act: ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including: (a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and (b) a decision concerning the awarding of costs in proceedings. interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following: … (h) the summary dismissal of proceedings, (i) any other interlocutory issue before the Tribunal.
The Commissioner urged the Appeal Panel to find that the decision was an ancillary decision because it concerned whether the Tribunal has jurisdiction to deal with a matter. Mr Holmes characterised the decision as an interlocutory decision because it was made in response to an application for summary dismissal under s 55(1)(b) of the NCAT Act.
To summarise, an ancillary decision is a decision: 1. other than an interlocutory decision; 2. that is preliminary to a decision determining proceedings; and 3. which concerns whether the Tribunal has jurisdiction to deal with a matter.
An interlocutory decision includes the summary dismissal of proceedings and any other interlocutory issue.
Differentiating between ancillary and interlocutory decisions is not straightforward. There is no provision in the NCAT Act for dismissing an application for lack of jurisdiction, other than the summary dismissal provision in s 55(1)(b). In AQO v Minister for Finance and Services [2016] NSWCA 248; (2016) 93 NSWLR 46 at [127]‑[128] Basten JA expressed the view that these provisions are potentially confusing but considered that the refusal of a summary dismissal application, even if based on lack of jurisdiction, is almost certainly an interlocutory issue. His Honour highlighted some of the textual features of the relevant provisions: [127] It is true that there is a specific reference to a decision regarding the jurisdiction of the Tribunal in the definition of ancillary decision and it may be inferred that the Appeal Panel thought that the specific reference to jurisdiction determined the issue. However, it appears from the chapeau to the definition of ancillary decision that one must determine that the decision is "other than an interlocutory decision" before coming to specific paragraphs which identify, non-exhaustively, what is meant by the term. If jurisdiction were determined as part of the final determination of a matter by the Tribunal, it might constitute an ancillary decision; however the refusal of a summary dismissal application, albeit based on an alleged absence of jurisdiction, is almost certainly an interlocutory issue, falling within either par (h) or par (i) of the definition of interlocutory decision. [128] A contrary approach might rely upon what appears to be an internal inconsistency in the chapeau to the definition of ancillary decision, which envisages a decision which is "preliminary to" a final determination but is not an interlocutory decision. It is unfortunate that members of the public, in seeking to resolve disputes before a Tribunal which is meant to facilitate the just, quick and cheap resolution of the real issues in proceedings, and which is required to dispense with formality, are faced with such potentially confusing provisions.
At [128], Basten JA identifies one basis for a contrary approach. Another textual indication that jurisdictional decisions are ancillary decisions is the use of the word "matter" rather than "proceedings" in the definition. That choice of words suggests that an application to NCAT for administrative review does not amount to a "proceeding" unless the Tribunal has jurisdiction to deal with the application. That terminology is also consistent with the Tribunal having a duty to satisfy itself that it has jurisdiction in relation to an application, whether or not a respondent applies for the matter to be dismissed. Interpreted in that light, a decision which concerns whether the Tribunal has jurisdiction to deal with a matter is not dependent on an application having been made for summary dismissal.
Despite ostensibly being made under the summary dismissal power, the Tribunal's decision is not a summary dismissal of "proceedings". The Appeal Panel came to the same view in DHU v Commissioner of Police, NSW Police Service [2018] NSWCATAP 282 at [25]-[35] and Dubow v Mid-Western Regional Council [2019] NSWCATAP 242 at [11]. The decision also meets the other two requirements in the definition of ancillary decision. It was preliminary to a decision determining "proceedings" and it concerned whether the Tribunal has jurisdiction to deal with a matter. For those reasons, it is an ancillary decision and leave to appeal is not required.
However, even if we are wrong and leave is required, we would give leave because of the fundamental importance of the principle that the Tribunal must satisfy itself that it has jurisdiction to deal with a matter.

Is the request/requirement to undertake an assessment the imposition of a condition on the licence?

Request or requirement?

At [18] of the decision, the Tribunal found that the Commissioner had required, rather than requested, Mr Holmes to undertake a mental health risk assessment. That was a finding of fact. The Commissioner did not expressly appeal from that finding in the Notice of Appeal. However, in the written submissions, the Commissioner presented arguments as to why the Tribunal was mistaken. Even if the Commissioner had expressly sought leave to appeal from this finding of fact, we would not have granted leave.
Despite the letter of 27 October 2020 being headed "Request for Doctor's Assessment", the Commissioner told Mr Holmes in the body of the letter that he was required to undertake a mental health risk assessment in order for his firearms licence to be properly assessed. The letter went on to say that after reviewing that assessment the Firearms Registry would decide whether to revoke the licence. It does not matter whether the Commissioner intended to revoke the licence if the assessment was not provided. The relevant finding is that the Commissioner required or directed Mr Holmes to provide an assessment.
That factual finding was reasonably open on the evidence. It was not "unreasonably arrived at and clearly mistaken": Collins v Urban [2014] NSWCATAP 17 at [84(2), (4)]. It was not "an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand": Collins v Urban at [84(2), (3)].

Is the requirement to undertake an assessment a condition imposed on a licence?

The first ground of appeal is that the Tribunal erred by finding that the requirement was a condition imposed on Mr Holmes' licence.
It is an offence for a person to possess or use a firearm unless the person is authorised to do so by a licence or permit: Firearms Act, s 7A(1). A firearms licence authorises a person to possess or use nominated kinds of firearms for particular purposes: Firearms Act, s 8. For a Category A or B firearms licence, the authority conferred by the licence is as follows: The licensee is authorised to possess or use a registered firearm of the kind to which the licence applies, but only for the purpose established by the licensee as being the genuine reason for possessing or using the firearm.
The Tribunal has authority to decide an application for administrative review of a decision by the Commissioner to impose "a condition" on a licence "issued to the person": Firearms Act, s 75(1)(b). The Commissioner's power to impose conditions is in s 19: 19 Conditions of licence (1) A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose. (2) Without limiting subsection (1), each licence is subject to the following conditions - (a) the licensee must comply with the relevant safe keeping and storage requirements under this Act, (b) the licensee must not permit any other person to possess or use any firearm in the licensee's possession if that other person is not authorised to possess or use the firearm, (c) the licensee must, in accordance with such arrangements as are agreed on by the licensee and the Commissioner, or, in the case of a licensed firearms dealer, at any reasonable time, permit inspection by a police officer (or such other person as may be prescribed by the regulations) of the licensee's facilities in respect of the storage and safe keeping of the firearms in the licensee's possession, (d) the licensee must not possess, at any one time, any amount of ammunition that exceeds the amount (if any) prescribed by the regulations, unless authorised in writing by the Commissioner, (e) the licence cannot be transferred to another person. (3) A licence is subject to such other conditions as may be prescribed by the regulations.
The conditions listed in s 19(2) include safe keeping, storage, inspection, the amount of ammunition possessed and ensuring that unauthorised people do not possess or use a firearm. Clauses 25 and 27 of the Firearms Regulation prescribe additional conditions on certain kinds of firearms licences. A person commits an offence if he or she contravenes any condition of his or her licence: Firearms Act, s 7A(2)(b).
A requirement will be a condition on a licence if it affects the authority of the licensee to possess or use firearms. The mandatory nature of a requirement imposed by the Commissioner does not necessarily mean that it can be characterised as a condition. The requirement must be a condition on the licence itself. That is clear from the terms of s 19(1) of the Firearms Act. "A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose". A "suspended licence does not authorise the possession or use of firearms during the period specified in the notice suspending it": Firearms Act, s 22(3). The Commissioner cannot impose conditions on a suspended licence because the person is no longer authorised to possess or use firearms.

Does the requirement purport to impose a condition on Mr Holmes' licence?

The second ground of appeal was that the Tribunal erred in finding that the requirement to undertake an assessment before deciding whether to revoke Mr Holmes' licence purported to impose a condition on his licence. That ground focused on the Tribunal's finding that the request to undertake an assessment was "not optional": Decision at [18]. We have dealt with those submissions and decided not to give leave for the Commissioner to appeal against the Tribunal's factual finding.
Mr Holmes submitted that if the requirement is not a decision the Commissioner could lawfully make, the Tribunal nevertheless has jurisdiction to review that decision. His submission was said to be supported by s 6(3) of the Administrative Decisions Review Act which defines the word "decision" to include a decision that is beyond power: For the purposes of this Act (and without limiting subsection (2)), a decision that purports to be made under enabling legislation is taken to be a decision made under the enabling legislation even if the decision was beyond the power of the decision-maker to make it.
This provision was enacted to statutorily entrench the principle enunciated by the Administrative Appeals Tribunal and the Federal Court of Australia in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167; Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1; (1979) 24 ALR 307. The Tribunal's jurisdiction is not dependent on the existence of a legally effective or valid decision as long as the decision was made, or was purported to have been made, under the relevant enabling legislation.
Section 6(3) of the Administrative Decisions Review Act does not apply to the facts of this case. The Tribunal does not have authority to review every decision or purported decision made by an administrator. The Tribunal only has jurisdiction to review "administratively reviewable decisions". Those decisions are defined as "a decision of an administrator over which the Tribunal has administrative review jurisdiction". The administrative review jurisdiction is defined in s 9(1): 9 When administrative review jurisdiction is conferred (1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation. …
Section 75(1) of the Firearms Act confers administrative review jurisdiction over a decision to impose a condition on a licence. It follows from s 6(3) of the Administrative Decisions Review Act that if the Commissioner purported to impose a condition, but did so in a legally ineffective way, the Tribunal would have jurisdiction to review that decision. However, in this case, the Commissioner did not purport to impose a condition on Mr Holmes' licence. The Commissioner purported to require him to undertake an assessment before determining whether to revoke his firearms licence.

Abuse of process?

In his Reply, Mr Holmes contends that "the effect (if not the intent) of the appeal may amount to an inadvertent abuse of process to shield [the Commissioner's] decisions from review and prevent resolution of the real issues between the parties, in circumstances where the natural reading of its submissions, were they to be accepted, is that the 'requirement' it seeks to impose must be ultra vires".
We have expressed the view that the Commissioner did not comply with the 'show cause' provisions in s 22 of the Firearms Act, nor did he have power to require Mr Holmes to undergo a mental health assessment. Those views are not binding and do not give Mr Holmes the right to any remedy in this Tribunal.

Orders 1. The appeal is upheld. 2. The Tribunal's orders (2), (3) and (4) are set aside. 3. In substitution for those orders the following order is made: The application for review of the decision of the Commissioner of Police to require Mr Holmes to undertake a mental health risk assessment is dismissed for lack of jurisdiction.

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: 09 July 2021

Administrative Decisions Tribunal Act 1997(NSW)

Firearms Regulation 2006(NSW)

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