Commissioner of Police, NSW Police Force v Price

Firearms Act Administrative Review Jurisdiction of the Tribunal

1. The power of the Commissioner to suspend a person's firearms licence is set out in s 22 of the Firearms Act 1996 (the Firearms Act) as follows: 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. (1A) If a licence is being suspended because the Commissioner is satisfied that there may be grounds for revoking the licence under section 11 (5A), the notice suspending the licence is not required - (a) to state the reasons for the suspension, or (b) to include any request that the licensee provide the Commissioner with reasons why the licence should not be revoked. (2) The Commissioner must suspend a licence in accordance with this section if the Commissioner is aware that the licensee has been charged with a domestic violence offence within the meaning of the Crimes (Domestic and Personal Violence) Act 2007 or the Commissioner has reasonable cause to believe that the licensee has committed or has threatened to commit a domestic violence offence within the meaning of that Act. (3) A suspended licence does not authorise the possession or use of firearms during the period specified in the notice suspending it.
2. The power to revoke a person's firearms licence is set out in s 24 of the Firearms Act as follows: 24 Revocation of licence (1) A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order. (1A) The Commissioner must revoke a licence that is held for the purpose of employment as an armed security guard (within the meaning of the Security Industry Act 1997) if - (a) the licensee has failed to undertake any firearms safety training required under this Act or the regulations, or (b) in the case of a licensee who holds a class 1F licence or a visitor permit authorising the licensee to carry out security activities of a kind authorised by a 1F licence under the Security Industry Act 1997 - the 1F licence or visitor permit is revoked under that Act or the licensee contravenes any condition of the firearms licence under this Act. (2) A licence may be revoked - (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or (b) if the licensee - (i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or (d) for any other reason prescribed by the regulations. (2A) If the Commissioner revokes a licence because the licence holder would be refused a licence on the grounds referred to in section 11 (5A), the Commissioner is not, under this or any other Act or law, required to give any reasons for revoking the licence on those grounds. (3) The Commissioner of Police may revoke a licence by serving personally or by post on the licensee a notice stating that the licence is revoked and the reason for revoking it. (4) The revocation of a licence by such a notice takes effect when the notice is served or on a later date specified in the notice. (5) The Commissioner may, by serving a further notice on the holder of a licence, cancel a notice revoking a licence before the notice takes effect.
3. Under s 7 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), the Tribunal has jurisdiction over an "administratively reviewable decision". Section 9 of the ADR Act provides that 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". The Firearms Act is such enabling legislation.
4. Section 75(1) of the Firearms Act provides as follows: (1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions - (a) the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person, (b) a condition imposed by the Commissioner on a licence or permit issued to the person, (c) the revocation of a licence or permit issued to the person (other than a revocation on the basis that the holder of the licence or permit is subject to a firearms prohibition order or an apprehended violence order), (d) the refusal of or failure by the Commissioner to register a firearm, (e) the cancellation of the registration of a firearm by the Commissioner, (f) a firearms prohibition order made against the person, (g) a decision made under the regulations concerning the person that belongs to a class of decisions prescribed by the regulations for the purposes of this paragraph.
5. There is no provision, or source of jurisdiction, for the Tribunal to administratively review the decision of the Commissioner to suspend a firearms licence issued to a person.
6. Section 6(3) of the ADR Act defines the word "decision" to include a decision that is beyond power. 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.

Jurisdiction of the Appeal Panel

1. We consider the Decision was an "ancillary decision" as defined in s 4(1) of the CAT Act (see DHU v Commissioner of Police, NSW Police Service [2018] NSWCATAP 282 at [25]-[35]; Commissioner of Police, NSW Police Service v FYH [2024] NSWCATAP 176 (FYH) at [20]) for the following reasons: 1. it concerned whether the Tribunal has jurisdiction to deal with an application, a matter expressly referred to in the definition of "ancillary decision"; 2. the Tribunal's first task is to determine whether it has jurisdiction and in the present matter the Decision was, therefore, preliminary to the determination of the application, which is a matter detailed in a chapeau to the definition of "ancillary decision"; and 3. the importance of determining jurisdiction is so critical to the Tribunal's function, that leave should not be required if there is an allegation of error on a question of law (see FYH at [21]).
2. Section 80(2) of the CAT Act provides that a party to an internal appeal in respect of an "ancillary decision" of the Tribunal at first instance may appeal as a right "on any question of law", or with the leave of the Appeal Panel on any other grounds.
3. There are several important cases relevant to the construction of s 80 of the CAT Act. These were recently referred to in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25] (Unique).
4. The Appeal Panel there said, inter alia, that: (1) Absent leave to appeal, the question of law is the subject matter of the appeal: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Medical Council of New South Wales v Mooney [2024] NSWCA 180 (Mooney) at [97]. (2) The question of law should be articulated with precision: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Kudrynski v Orange City Council [2024] NSWCA 33 at [48], Mooney at [97], Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [28] … (3) A question of law means a pure question of law: Wilson v Chan & Naylor Parramatta Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11]. … (5) A "pure question of law" does not depend on facts not found: Orr v Cobar Management Pty Ltd [2020] NSWCCA 2020 at [48] and [109] … … (8) A mixed question of fact and law is not a question of law: Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWCA 734 at [39] … … (10) An appeal is "on" any question of law: s 80(2) of the NCAT Act. The question of law must not be hypothetical or arid: Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382 at [90]; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353-354; [1990] HCA 33. (11) An appeal is against orders and not reasons: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26 at [34]; Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 at [217], Kramer v Stone [2023] NSWCA 270 at [259]. Therefore, the question of law must be capable of affecting the orders the subject of the appeal.
5. Jurisdictional error will often raise a question of law: Unique at [32(8)].

Grounds of Appeal and Questions of Law

1. In relation to the 2 May 2024 Notice, the grounds of appeal are as follows: 1. The Tribunal erred by concluding that the notice issued by the Commissioner to Mr Price on 2 May 2024 was a "reviewable decision" as defined in s 7 of the ADR Act. 2. The Tribunal erred by characterising the 2 May 2024 Notice as a decision to revoke Mr Price's firearms licence rather than as a decision to suspend it. 3. The Tribunal, in characterising the 2 May 2024 Notice as a decision to revoke Mr Price's firearms licence rather than as a decision to suspend it, erred by taking into account the following irrelevant considerations: 1. that the 2 May 2024 Notice did not specify a "suspension expiry date"; 2. that the "grounds" for the suspension described in the 2 May 2024 Notice were "not fit and proper person"; and 3. that Mr Price's firearms and firearms licence had been seized on 3 April 2024. 1. The Tribunal misconstrued s 24 of the Firearms Act by concluding that it was not mandatory for the Commissioner to serve a notice to revoke a firearms licence on the licence holder. Therefore, the Tribunal erred by concluding, from its finding that the 2 May 2024 Notice was not served in accordance with s 22(1) of the Firearms Act, that the notice should be characterised as a decision to revoke Mr Price's firearms licence rather than as a decision to suspend it. 2. The Tribunal erred by failing to follow the decision in Uzelac v Commissioner of Police, NSW Police Service [2004] NSWADT 34 (Uzelac).
2. In relation to the 3 July 2024 Notice, the grounds of appeal are as follows: 1. The Tribunal erred by concluding that, because the 2 May 2024 Notice was ineffective in establishing a suspension pursuant to s 22 of the Firearms Act, the notice issued by the Commissioner to Mr Price on 3 July 2024 was not a decision to suspend Mr Price's firearms licence. 2. The Tribunal erred in its construction of the Firearms Act by concluding that the Commissioner lacked the power to withdraw a suspension. 3. The Tribunal erred by failing to take into account a mandatory consideration, being the effect of s 48(1) of the Interpretation Act 1987 (NSW). 4. The Tribunal erred by having regard to an irrelevant consideration, being the effect of s 43 of the Interpretation Act 1987 (NSW). 5. The Tribunal further erred by failing to consider whether the 3 July 2024 Notice could be made in place of the 2 May 2024 Notice, given its apparent finding that the 2 May 2024 Notice was invalid as it had not been served in accordance with the requirements of s 22(1) of the Firearms Act.
3. The questions of law arising from those grounds and as elaborated upon by the Commissioner in submissions can be framed, in summary, as follows: 1. whether the Tribunal misconstrued the 2 May 2024 Notice and thereby erroneously concluded that the decision before it was a reviewable decision; and 2. whether, on the proper interpretation of ss 22, 24 and 75 of the Firearms Act, the 2 May 2024 Notice was an administratively reviewable decision; and 3. the effect, as a matter of law, of the absence of a nominated expiry date in a Notice of Suspension under s 22 of the Firearms Act.
4. In essence, each of the questions raise for consideration whether the Tribunal made a jurisdictional error by assuming a review jurisdiction in the absence of enabling legislation permitting such a review in respect of a suspension, or purported suspension, of a person's firearms licence by the Commissioner.
5. Accordingly, the Commissioner may appeal against the decision as a matter of right.
6. If we are wrong in that view, we would have granted leave as the appeal raises important issues and questions of principle, concerning the jurisdiction of the Tribunal and the effect of a purported exercise of power by the appellant.

2 May 2024 Notice

1. In the Decision the Tribunal commenced by recording that Mr Price's firearms were confiscated on 3 April 2024.
2. The Tribunal then recognised that for the purposes of the application by Mr Price, s 75(1) of the Firearms Act does not provide the Tribunal with jurisdiction in respect of a decision to suspend a licence and stated that that position was consistent with the decision of Uzelac at [26].
3. However, the Tribunal then proceeded to find by reference to s 22(3) of the Firearms Act that in the absence of a period of suspension of the licence, the Notice was not a notice of suspension in that it was ineffective in establishing a suspension pursuant to s 22. The Tribunal further formed the view that the 2 May 2024 Notice was ineffective by reason of the grounds stated in the Notice, namely "Not a fit and proper person", because it was a conclusion and did not disclose the reasons for reaching that conclusion.
4. By "ineffective", we understand the Tribunal to have come to the view that the Notice did not have the legal effect of suspending Mr Price's licence.
5. The Tribunal then proceeded to consider whether the ineffective suspension notice was a revocation of Mr Price's licence as provided for in s 24(3) of the Firearms Act.
6. The Tribunal reasoned that the absence of an end date in the 2 May 2024 Notice is consistent with a revocation of a licence. Attention was drawn to a notation on the 2 May 2024 Notice which stated that police have the authority to seize firearms under ss 25(2) and 30(7) of the Firearms Act where a firearms licence or permit is suspended, revoked or otherwise ceases to be enforced.
7. It was then reasoned that the 2 May 2024 Notice supported a conclusion that a final decision with respect to Mr Price's suitability as a firearms licensee had been made which was consistent with a revocation. The Tribunal made a comparison with more detailed grounds in the 3 July 2024 Notice.
8. The Tribunal held that characterising the decision as a revocation of the licence aligns with the evidence that the Commissioner had concluded that Mr Price was not a fit and proper person. In such circumstances, it was held, the Commissioner had a discretion to revoke a licence pursuant to s 24(2)(c) of the Firearms Act "and did so".
9. The Tribunal then concluded that the decision that was made on 2 May 2024 was to revoke Mr Price's firearms licence and seize his firearms based on a finding that he was not a fit and proper person and found that the firearms licence was revoked on 2 May 2024.

3 July 2024 Notice

1. In respect of the 3 July 2024 Notice, the Tribunal held that as the licence had been revoked (by the 2 May 2024 Notice) the 3 July 2024 Notice could not change that earlier revocation to a suspension. There was nothing left to suspend and the Commissioner did not have power to withdraw his suspension except pursuant to the provisions of the Firearms Act.

Commissioner's Submissions

1. The Commissioner in submissions on the appeal emphasised the correctness of the approach in the decision in Uzelac and in Commissioner of Police, NSW Police Force v Holmes [2021] NSWCATAP 202 (Holmes). The Commissioner further challenged the reasoning in the Decision supporting the conclusion that the 2 May 2024 Notice could, or did, amount to a revocation of Mr Price's firearms licence.

Mr Price's Submissions

1. Mr Price did not challenge the legal analysis or grounds of appeal. He explained that on his reading of the 2 May 2024 Notice, it appeared to him that a decision had been made that he was not a fit and proper person to hold a firearms licence, which he denies and provides evidence to support his position. He thought it was a revocation of his licence and he wanted that decision reviewed. He also emphasised that at all times he had been cooperative and was seeking to have the issue resolved.

Consideration

1. In order to revoke a firearms licence, s 24 of the Firearms Act requires that the holder of the licence be served personally or by post with a notice stating that the licence is revoked and the reasons for revoking it.
2. The 2 May 2024 Notice did not anywhere state that Mr Price's licence was revoked. The Notice expressly provided that during the period of suspension: "…you are not authorised to possess or use firearms and you may make written submission to the Commissioner as provided by section 22(1)(b) of the Firearms Act 1996 … giving reasons why the authority above should not be revoked".
3. The Commissioner accepted on appeal that the 2 May 2024 Notice was not a valid notice having the effect of suspending the firearms licence, by reason of the failure in the notice to specify an expiry date. That concession did not render the Notice a revocation notice.
4. The 2 May 2024 Notice was by its terms a notice concerned with the suspension of the firearms licence. It was not and did not purport to be concerned with the revocation of a licence. The 2 May 2024 Notice was an invalid notice of suspension.
5. The Tribunal did not have jurisdiction to administratively review the decision concerning the suspension or purported suspension of the firearms licence.
6. In the absence of legislative authority, the lack of administrative review jurisdiction of the Tribunal in respect of a suspension of a firearms licence extends to an invalid or purported notice of suspension of the licence.
7. In Uzelac, the Administrative Decisions Tribunal of New South Wales held that the Tribunal did not have jurisdiction to review a decision by the Commissioner to suspend a licence, and also that the Tribunal did not have jurisdiction to review a decision by the Commissioner to issue an invalid notice of suspension (at [28]). We agree with that approach.
8. For a decision which purports to be made under enabling legislation to be reviewable, it is still necessary that the subject matter be administratively reviewable in the first place (see Holmes at [37]-[39]).
9. As we point out above, the Tribunal's jurisdiction to review a purported suspension requires the subject matter, in this case the suspension, to be within jurisdiction.
10. An invalid or purported suspension is not reviewable under s 75(1) of the Firearms Act.
11. It is apparent from the reasoning of the Tribunal we have summarised above that the Tribunal impermissibly entered upon a review of the 2 May 2024 Notice. However, that Notice was a purported notice of suspension pursuant to s 22 of the Firearms Act. That amounted to jurisdictional error resulting in the Decision needing to be set aside.
12. A notice of suspension which is invalid, and thus of no legal effect, does not have the legal effect of revoking a firearms licence notwithstanding non-compliance with s 24(3) of the Firearms Act.
13. There was no challenge to the validity of the 3 July 2024 Notice other than the Tribunal's conclusion that it had no work to do by reason of the earlier revocation of the licence pursuant to the 2 May 2024 Notice. As the 2 May 2024 Notice was not a revocation notice, the 3 July 2024 Notice continues to operate.
14. The Tribunal did not have the jurisdiction to administratively review the 2 May 2024 Notice or the 3 July 2024 Notice. The application to dismiss the proceeding should have been upheld and the application made by Mr Price on 29 May 2024 should have been dismissed. As noted in FYH at [24]-[25], it was not necessary to apply one of the categories of s 55 of the CAT Act to dismiss the proceedings. The Tribunal lacked jurisdiction and that is a sufficient basis to dismiss a proceeding.

Orders 1. The appeal is allowed. 2. The decision of the Tribunal is set aside. 3. The application for review is dismissed on the grounds of a want 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: 28 February 2025