O’Neill v Commissioner of Police, NSW Police Force

1. For the reasons explained below, we have decided to allow the appeal and set aside the decision of the Tribunal and remit the proceedings for reconsideration by the Tribunal differently constituted in accordance with these reasons for decision and with or without further evidence as the Tribunal may allow.
2. In allowing the appeal it has not been necessary to consider the merits of the findings made by the Tribunal.
3. We have made this decision for essentially two reasons:

(1) the Tribunal misdirected itself as to its authority, under section 55(3) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act), to review the decision of the respondent to revoke the appellant's firearms licence under section 24(2) of the Firearms Act 1996 (NSW) (Firearms Act), because that decision was a new decision susceptible to internal review by the respondent under section 53 of the ADR Act and no application for internal review had been made; and

(2) the Tribunal identified the wrong issue and asked the wrong question by conflating the 'fit and proper' test with the 'public interest' test in the Firearms Act.

Background to the appellant's application to the Tribunal below

1. In 2008, the respondent, the Commissioner of Police, NSW Police Force, issued the appellant, Michael Glen O'Neill, with a category AB firearms licence under section 11(1) of the Firearms Act. In accordance with section 21 of the Firearms Act, that licence continued in force for five years.
2. On the application of the appellant, in 2013 the respondent issued the appellant with a new firearms licence. In 2015, the appellant's firearms licence was automatically suspended, under section 23(1) of the Firearms Act, after he became subject to an interim apprehended violence order (AVO) following a domestic incident with his brother. The AVO was subsequently withdrawn, and the appellant's licence was automatically restored: Firearms Act section 23(2).
3. On the application of the appellant, in 2018 the respondent issued the appellant with a new firearms licence. In April 2022, the appellant's firearms licence was again automatically suspended after the appellant was made subject to another AVO as a result of an incident which involved his wife. That AVO was revoked. On its revocation, the respondent decided to suspend the appellant's firearms licence under section 22 of the . In December 2022, the respondent decided to re-issue the appellant with his licence subject to a condition: The condition prohibited the appellant from possessing or storing a firearm, firearms parts or ammunition at his residence or at a location where his wife resided or frequented.

"The decision to impose a special condition on your Category AB firearms licence is set aside.

The decision made in substitution is to revoke your Category AB firearms licence."

1. At the end of the Statement of Reasons for the decision to set aside the decision to impose a condition on the appellant's firearms licence and substitute it with a decision to revoke the appellant's firearms licence, the internal reviewer said he was of the opinion that the appellant was 'no longer a fit and proper person to hold a firearms licence nor do I consider it in the public interest' for the appellant to continue to hold a firearms licence.

1. On 25 January 2024, the appellant (as a self-represented applicant) lodged an application with the Tribunal, under section 55 of the ADR Act and section 75(1) of the Firearms Act, seeking administrative review of four decisions of the respondent. Two of these decisions related to the respondent's decision, made in December 2022, to impose a condition on the appellant's 2018 firearms licence. The other decisions for which the appellant sought administrative review were:

(1) the decision, made on 9 November 2023, to issue a new licence subject to the same special condition that had been imposed on his previous firearms licence in December 2022, and

(2) the decision, made on 5 January 2024, to revoke the firearms licence.

1. On 26 February 2024, at a directions hearing, the Tribunal (differently constituted) made an order granting the appellant leave to amend his application for review to only seek review only of the respondent's decision to revoke his firearms licence made on 5 January 2024.
2. The appellant's administrative review application was heard by the Tribunal on 20 June 2024. The appellant was not legally represented. The appellant and his wife gave oral evidence and were cross-examined by the solicitor for the respondent. The respondent was legally represented and only relied on the section 58 documents.
3. As noted above, on 8 July 2024, the Tribunal determined the appellant's administrative review application.
4. On 31 July 2024, the appellant (again, as a self-represented appellant), lodged this appeal from the decision of the Tribunal.

Firearms Act

1. The Firearms Act regulates the possession and use of firearms.
2. The underlying principles and objects of the Firearms Act are set out in section 3 as follows:

3 Principles and objects of Act

(1) The underlying principles of this Act are -

(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b) to improve public safety -

(i) by imposing strict controls on the possession and use of firearms, and

(ii) by promoting the safe and responsible storage and use of firearms, and

(c) to facilitate a national approach to the control of firearms.

1. Section 11(1) of the Firearms Act provides that the respondent may issue or refuse an application for a firearms licence.
2. Section 11(3) - (5A) and (6) prescribes several circumstances (grounds) where a licence must not be issued and relevantly provides:

11 General restrictions on issue of licences

(cf 1989 Act s 25, APMC 4, 5, 6)

...

(3) A licence must not be issued unless -

(a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and

...

(c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and ...

1. Section 11(7) gives the respondent a discretion to refuse to issue a licence where the respondent considers that the issue of the licence would be contrary to the public interest. That section is in the following terms:

(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

1. Section 12(1) provides that the respondent must not issue a licence unless satisfied that the applicant for a licence has a genuine reason for possessing or using the firearm. When issuing the appellant with a firearms licence the respondent was satisfied that this requirement was met.

1. Section 19(1) of the Firearms Act provides that a firearms licence may be issued by the respondent subject to such conditions as the respondent thinks fit to impose.
2. Section 19(2) prescribes conditions that each firearms licence is subject to. No issue arises in this appeal regarding these prescribed conditions.
3. Section 19(3) provides that each licence is subject to such other conditions as may be prescribed by the regulations.

1. Prior to the expiry of a firearms licence, the licence holder can make an application for it to be renewed: Firearms Regulation 2017 (NSW) (Firearms Regulation_)_ clause 18 which provides:

18 Renewal of licence or permit

(1) A licence or permit may be renewed by making an application, in accordance with the Act and this Regulation, for a new licence or permit (referred to in this Regulation as a subsequent licence or permit).

(2) At least 60 days before the date on which a licence or permit is due to expire, the Commissioner is to notify the licence or permit holder that the licence or permit is due to expire on a specified date.

1. Section 22 of the Firearms Act makes provision for the suspension of a firearms licence where the respondent is satisfied there may be grounds for revoking a licence.
2. Section 23(1) of the Firearms Act makes provision for the automatic suspension of a firearms licence where an interim apprehended violence order (AVO) is made against the holder of a firearms licence. Section 23(2) provides that the suspension remains in force until such time as the AVO is confirmed or revoked.

1. Section 24 of the Firearms Act makes provision for the revocation of a firearms licence.
2. Subsection 24(1) makes provision for the automatic revocation of a firearms licence where the holder of the licence becomes subject to a firearms prohibition order or an apprehended violence order. Subsection 24(1A) prescribes the circumstances where the respondent must revoke a firearms licence. The prescribed circumstances do not apply to the appellant.
3. Subsection 24(2) also prescribes several circumstances (grounds) where the respondent may revoke a firearms licence and relevantly provides as follows:

24 Revocation of licence

(cf APMC 6, 1989 Act s 36, 1990 Reg cl 27)

...

(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

...

(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

...

(d) for any other reason prescribed by the regulations.

1. Clause 20 of the Firearms Regulation provides that the respondent may revoke a licence where he/she is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

1. At [4], the Tribunal noted that the appellant sought review of the decision of the respondent to 'revoke' his firearms licence.
2. At [8] to [9] of its decision the Tribunal summarised the appellant's case as to why he should be granted a firearms licence.
3. At [10] of its decision, the Tribunal set out the respondent's case as follows:

"10 The Respondent contends the correct and preferable decision is to refuse the firearms licence application because granting a licence would not be in the public interest (relying on s 11(7) of the Firearms Act 1996 (the Firearms Act)), including on the basis the Applicant is not a fit and proper person to hold a licence due to the Applicant's domestic circumstances, character and conduct_._"

1. At [12] the Tribunal provided a summary of its role and powers on administrative review under section 63(1) and (2) of the ADR Act.
2. At [14] and [15], under the heading 'Relevant Legislation' the Tribunal set out section 3(1)(a) and (b) and section 11(3)(a) and (7) of the Firearms Act.
3. At [17], the Tribunal provided a summary of the alleged altercations between the appellant and members of his family in 2001, 2002, 2014-2015, 2018, 2020 and 2022.
4. At [18], the Tribunal said that, if it was considered appropriate to issue the appellant with a firearms licence, the condition imposed by the respondent on that licence 'was a proportionate response to the risk to public safety caused by the Applicant's domestic circumstances.'
5. At [19] to [23] the Tribunal dealt with the respondent's record of the appellant's alleged interaction with police in September 2023.
6. Under the heading 'public safety and risk', at [24] and [25], the Tribunal noted that under the Firearms Act public safety is a primary consideration.
7. Under the heading 'Is it in the public interest for the Applicant to hold a licence?'; at [26] to [29] the Tribunal set out its understanding of the law applicable to the 'public interest' test in section 11(7) of the Firearms Act. We have dealt with that in more detail below.
8. At [30], citing Hariri v Commissioner of Police [2022] NSWCATAD 5 at and [60], the Tribunal found that, the appellant's '' (based on the appellant's domestic history which included AVO proceedings) was such that '' if the appellant '.'

"32 Therefore, in all the circumstances, it is not in the public interest under s 11(7) of the Firearms Act for the Applicant to hold a firearms licence.

33 It follows that the correct and preferable decision is to affirm the decision of the Respondent to revoke the Applicant's firearms licence."

1. In support of his appeal the appellant relied on his Notice of Appeal, the attachments thereto and his written submissions together with other supporting documentary material provided on 21 August 2024 and 13 September 2024.
2. A copy of the appellant's administrative review application, stamped as received by the Tribunal on 25 January 2024, was also provided.
3. The solicitor for the respondent relied on the Reply to Appeal provided on 19 August 2024 and the written submissions provided on 12 August 2024 regarding the appellant's stay application and those provided on 26 September 2024 in reply to the appellant's substantive appeal.
4. Neither party provided a copy of the sound recording or transcript of the hearing before the Tribunal below.

1. The appellant listed the following as his grounds of appeal:

"Tribunal did not consider the actions of police were unlawful surrounding the firearms licence susspention (sic) notice. Including contradictory information recorded on police files.

False and misleading information contained in the Tribunal's decision. Please see attachment."

1. The orders sought by the appellant in his Notice of Appeal are the restoration of his firearms licence 'because Commissioner not having reasonable cause to revoke licence.'
2. The appellant's written submissions are lengthy and largely deal with the merits of the Tribunal's decision. However, in the introduction to his written submissions attached to the Notice of Appeal, the appellant submitted that:

(1) the Tribunal did not fully understand the facts because he had been ordered to amend his original administrative review application. This he said, had the effect of excluding important details, including how the matter came about and the Tribunal understanding the facts; and

(2) he is a fit and proper person and has not demonstrated behaviour that would cause the respondent to decide that there was a public interest in revoking his licence, which should be reinstated because of procedural unfairness and injustice surrounding the law.

1. While the appellant had indicated on his Notice of Appeal that he did not seek leave to appeal, it is evident that he did not understand what this meant. In any event, as we have allowed the appeal on jurisdictional and question of law grounds, rather than on questions of fact, it is unnecessary for us to consider whether leave to appeal should be granted.

1. In the Reply to Appeal, the solicitor for the respondent said that she did not consider the appellant's grounds of appeal to be founded on a question of law, as the appellant had not submitted that the Tribunal erred in the application of an applicable provision under the Firearms Act, or any other relevant legislation. Rather, it was contended that the appellant's grounds of appeal arose out of disputed facts, for which leave to appeal is required.
2. In her written submissions, the solicitor for the respondent submitted that the appeal should be dismissed because no error of law has been established and the Tribunal's fact-finding process was orthodox.
3. It was submitted that, at [10] of its decision, the Tribunal had correctly identified the issue in dispute, namely whether the appellant's firearms licence application should be 'refused' pursuant to section 11(7) of the Firearms Act, 'and further, that the [Appellant] is not a fit and proper person to hold a licence due to the [Appellant's] domestic circumstances, character and conduct'.

1. The appeal was heard on 27 September 2024. The appellant and the solicitor for the respondent appeared by AVL.
2. At the hearing, the appellant continued to express concern about having been ordered to amend his original application for administrative review and the Tribunal's finding that he was not a fit and proper person who could be trusted to possess firearms.
3. In her oral submissions at the hearing of the appeal, the solicitor for the respondent indicated that the position of the respondent at the hearing before the Tribunal below was that the correct and preferable decision was to refuse the appellant's September 2023 application for a new firearms licence under section 11(7) of the Firearms Act (the 'public interest ground'). However, as this is also a ground on which a firearms licence may be refused under section 24(2)(d) of the Firearms Act and clause 20 of the Firearms Regulation, there was in effect no error.
4. On 15 March 2025, having considered the material provided by the appellant and the respondent in this appeal, the oral submissions made at the hearing of the appeal and the relevant provisions in the Firearms Act, Firearms Regulation and the ADR Act, we decided it was necessary to obtain written submissions from the parties arising from the approach the respondent had taken to the appellant's internal review request and at the hearing of the appellant's administrative review application. In this regard we formulated the following questions (together with specific notations relevant to each question) on which we sought further submissions of law arising from the appeal:

(1) Was the Tribunal led into error in identifying the decision(s) the subject of review of the appellant's application?

(a) noted the express terms of section 75(1)(b) of the Firearms Act that makes provision for administrative review of a decision to impose a condition on a firearms licence and not the decision to issue a licence;

(b) raised the question as to whether:

(i) on internal review of a decision to issue a firearms licence subject to a condition was it was open to the internal reviewer, in the exercise of the function/power prescribed in section 53(5) and (5A) of the ADR Act, to make a decision to revoke a firearms licence, in substitution for the decision to issue a licence subject to a condition? and

(ii) in this case, was the decision to revoke the appellant's firearms licence a new decision for which the appellant had not sought internal review as required under section 55(3) of the ADR Act? and

(2) Did the Tribunal identify the wrong issue or ask itself the wrong question by conflating the 'public interest' grounds and the 'fit and proper person' grounds in the Firearms Act and the Firearms Regulation?

In this regard we noted that the 'public interest' and the 'fit and proper person' grounds are separate grounds on which a firearms licence may or must be refused or revoked: Firearms Act section 11(3)(a) and (7) and 24(2)(c) and Firearms Regulation clause 20.

1. The appellant provided a lengthy written response to these questions on 23 April 2025. It is evident from the appellant's response that he has little, if any understanding of the matters relevant to the questions we had raised. However, he does continue to express concern about the processes that had been used to make the decisions that were made.
2. Written submissions in response to our questions were provided by counsel for the respondent on 12 May 2025. We have dealt with these below.

1. An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
2. As we have noted above section 80(2) of the NCAT Act provides that an appeal is as of right on a question of law, or with the leave of the Appeal Panel on any other ground.

1. It is accepted that a self-represented appellant may have difficulty in clearly expressing their grounds of appeal, including articulating a ground that raises a question of law: Cominos v Di Rico [2016] NSWCATAP 5 at [13], John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) at [12] and Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique) at [28]. In such circumstances, having regard to the guiding principle in section 36(1) of the NCAT Act, the Appeal Panel has said that it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal.
2. In Unique at [25], the Appeal Panel set out the propositions arising from the authorities concerning questions of law within section 80 of the NCAT Act, which includes an appellant identifying a pure question of law which then becomes the subject matter of the appeal: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Parramatta Trust [2020] NSWCA 62 at [4] and [11] and at , [14], summarising

(1) whether there had been a failure to provide proper reasons;

(2) whether the Tribunal identified the wrong issue or asked the wrong question;

(3) whether a wrong principle of law had been applied; and

(4) a denial of procedural fairness.

1. In Donohoe v Albulario [2025] NSWSC 9, at [30], Basten JA stated that in construing the phrase 'question of law', statements of principles are less likely to be of assistance than close attention to the nature of the issue identified by the appellant and the statutory context in which the appeal arises.

Should the appeal be determined on a question of law as raised in the notations to the orders made on 15 March 2025?

1. In his submissions of 12 May 2025, counsel for the respondent accepted that it was open to the Appeal Panel, when dealing with self-represented litigants, to review the material provided on the appeal and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal.
2. At the same time, it was noted that, in ZNX v ZNY [2020] NSWCATAP 41 at [29], the Appeal Panel noted that there is a limit on this process as expressed:

"by Flick J in SZTOG v Minister for Immigration and Border Protection [2018] FCA 112 at [30] in that:

... it is no part of the function of this Court [here the Appeal Panel] to review the reasons for decision of a primary judge, draft what may be arguable Grounds of Appeal and then proceed to resolve those Grounds.

...

For the Court to itself draft its own Grounds of Appeal and then resolve those Grounds is, with respect, a step too far."

1. The decision in SZTOG v Minister for Immigration and Border Protection [2018] FCA 112, was an appeal lodged under the Migration Act 1958 (Cth), where no grounds of appeal had been identified. It is instructive to set out the remarks of Flick J at [30] (citations omitted):

"30 In the absence of the specification of Grounds of Appeal which focus the attention of this Court upon perceived appellable error committed by a primary judge, a Notice of Appeal should normally be struck out. Although this Court may in some circumstances attempt to redraft or construe otherwise ill drafted Grounds of Appeal in an effort to identify appellable error, it is no part of the function of this Court to review the reasons for decision of a primary judge, draft what may be arguable Grounds of Appeal and then proceed to resolve those Grounds. Even judicial attempts to revise ill-drafted Grounds of Appeal run the very real risk of prejudicing the impartial administration of justice.... For the Court to itself draft its own Grounds of Appeal and then resolve those Grounds is, with respect, a step too far."

1. In Efremov v Health Administration Corporation [2025] NSWCATAP 8 at [39], the Appeal Panel agreed that, unless it unreasonably prejudices the respondent, a broad interpretation of the grounds of appeal should be allowed where an appellant is unrepresented. The Appeal Panel went on to note:

"... there is a proper limit to this process, in that it is not the role of the Appeal Panel to draft grounds of appeal not raised, and then resolve them (ZNX v ZNY [2020] NSWCATAP 41, citing SZTOG v Minister for Immigration and Border Protection [2018] FCA 112), unless the issues go to the jurisdiction of the Tribunal or are otherwise necessarily considered to resolve the appeal."

1. We accept that the appellant did not specifically rely on the questions for which we sought further submissions from the parties. However, those questions do raise issues which go to jurisdiction, and the appellant did submit that he had been disadvantaged by being ordered to amend his application for administrative review to only seek review of the decision to revoke his firearms licence when he had specifically also sought review of the decision, made on 9 November 2023, to issue him with a licence subject to a special condition. That is, the appellant specifically sought review of both decisions.
2. In our view, the appellant's grounds of appeal and written submissions also give rise to a question of law regarding the Tribunal's finding, as contended by the respondent, that the 'public interest' test in the Firearms Act includes the 'fit and proper' test in that Act.
3. The parties, as we have noted, were given an opportunity to respond to these questions.

The Tribunal's administrative review jurisdiction

1. Section 30(1) of the NCAT Act provides that the ADR Act sets out the circumstances in which the Tribunal has administrative review jurisdiction.
2. The objects of the ADR Act are as follows:

3 Objects of Act

The objects of this Act are as follows:

(a) to provide a preliminary process for the internal review of administratively reviewable decisions before the administrative review of such decisions by the Tribunal under this Act,

(b) to require administrators making administratively reviewable decisions to notify persons of decisions affecting them and of any review rights they might have and to provide reasons for decisions of administrators on request,

(c) to foster an atmosphere in which administrative review by the Tribunal is viewed positively as a means of enhancing the delivery of services and programs,

(d) to promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales.

1. An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction: ADR Act section 7(1).
2. An administrator, in relation to an administratively reviewable decision, is the person or body that makes (or is taken to have made) the decision under the enabling legislation: ADR Act section 8(1).
3. The term 'enabling legislation' is defined in section 4(1) of the ADR Act to mean legislation, other than the ADR Act or statutory rules made under that Act, that:

(a) provides for applications to be made to the Tribunal with respect to a specified matter or class of matters, or

(b) otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters.

1. Section 9(1) of the ADR Act provides that the Tribunal has 'administrative review jurisdiction' over a decision (or class of decisions) of an administrator if the enabling legislation provides that applications may be made to the Tribunal for an administrative review under that 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.

1. The word 'function' is defined in section 4(1) to include a power, authority or duty, and 'exercise' a function includes perform a duty.

The enabling legislation - Firearms Act section 75

1. The enabling legislation in this case is section 75 of the Firearms Act which relevantly provides as follows:

75 Administrative reviews by Civil and Administrative Tribunal of certain decisions

(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), ...

1. Chapter 3 of the ADR Act sets out the process for administrative review under that Act.

1. Part 2 in Chapter 3 deals with the role of administrators, which includes giving notice of decisions, reasons for decision and advice as to review rights, including a right for internal review.
2. Section 53 in this Part sets out the process for making an internal review determination by the administrator. That section relevantly provides (italics added):

53 Internal reviews

(1) Who may apply for an internal review If an administrator makes an administratively reviewable decision, an interested person may apply for an internal review of that decision under this section.

(2) Requirements for an application ...

(3) Who is to deal with an application? ...

(4) Material to be considered In reviewing a decision, the internal reviewer is to consider any relevant material submitted by the applicant.

(5) Review of the application Following the internal review of the decision, the internal reviewer may:

(a) affirm the decision, or

(b) vary the decision, or

(c) set aside the decision and make a decision in substitution for the decision that is set aside.

(5A) Reviewer has functions of administrator In exercising a function under subsection (5), an internal reviewer is taken for all purposes to have the right to exercise the same functions under any relevant legislation or other law that the administrator had in making the decision being reviewed.

(5B) Reviewer to notify administrator of decision An internal reviewer must notify the administrator of the result of, and the reasons for, his or her decision under subsection (5) as soon as is practicable after making the decision.

(6) Notice of result of review and appeal rights ...

(7) Statement of reasons ...

(8) Status of decisions made on internal review For the purposes of this Act, an administratively reviewable decision that is affirmed, varied or set aside and substituted under subsection (5) is:

(a) taken to have been made by the administrator (as affirmed, varied or substituted by the internal reviewer), and

(b) taken to have been made on the date on which the applicant is given a notice under subsection (6).

(9) When an internal review is finalised An internal review is taken to be finalised if:

(a) the applicant is notified of the outcome of the review under subsection (6), or

(b) the applicant is not notified of the outcome of the review within 21 days after the application for the review is lodged (or such other period as the administrator and person agree on).

**Note - **

Section 55 provides that an interested person may apply for an administrative review under this Act of an administratively reviewable decision once an internal review of the decision is taken to be finalised under this subsection. ...

1. The word 'function' is defined in section 4(1) to include a power, authority or duty, and 'exercise' a function includes perform a duty.

1. Part 3 in Chapter 3 deals with the role of the Tribunal in administrative review under that Act. Section 55 in this Part makes provision for the making of an application for administrative review to the Tribunal. That section relevantly provides as follows - emphasis added:

55 Making of applications

(1) An application for an administrative review under this Act of an administratively reviewable decision may only be made by an interested person.

...

(3) If the interested person was entitled to seek an internal review of the administratively reviewable decision, an application may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under section 53 (9).

(4) However, the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that:

(a) the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned, or

(b) it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned.

(5) ...

(6) The Tribunal may also deal with an application even though the applicant has duly applied for an internal review of the decision to which the application relates, and the review is not finalised, if the Tribunal is satisfied that it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests.

1. Section 63 of the ADR Act sets out how the Tribunal is to determine an application for administrative review. That section relevantly provides - italics added:

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.

Whether the Tribunal misdirected itself as to its jurisdiction to review the decision(s) the subject of review in the appellant's application for review?

1. It is convenient to begin with the original decision of the respondent to issue the appellant with a firearms licence subject to a condition under section 19(1) of the Firearms Act.
2. As noted above, to issue a licence the respondent must be satisfied that there are no mandatory or discretionary grounds to refuse to issue the licence: Firearms Act section 11.
3. It must be assumed that, in this case, on 9 November 2023, when the respondent made the decision to issue the appellant with a firearms licence, he was satisfied that no section 11 mandatory or discretionary ground to refuse to issue the licence applied.
4. A decision of the respondent to issue a licence is not an administratively reviewable decision.
5. However, in making the decision to issue the firearms licence, the respondent also decided to impose a special condition on that licence under section 19(1) of the Firearms Act. That section gives the respondent a wide discretion to impose a condition on a firearms licence and it is this decision that is administratively reviewable: Firearms Act section 75(1)(b). In this case, the condition imposed on the appellant's licence prohibited the appellant from possessing or storing firearms, firearms parts and ammunition at any location where the appellant's partner lived or resided.

1. Counsel for the respondent submitted, at [31], that once an internal review decision is made (or even purported to be made) substituting a different decision for the purpose of the ADR Act it, is that decision (the substituted decision in this case) which is the 'administratively reviewable decision' of the respondent for the purpose of the ADR Act. And, in those circumstances, no valid application for administrative review could be maintained regarding the original decision.
2. In this regard, counsel for the respondent relied on section 53(8)(a) of the ADR Act which, as indicated above, relevantly provides:

(8) Status of decisions made on internal review For the purposes of this Act, an administratively reviewable decision that is affirmed, varied or set aside and substituted under subsection (5) is:

(a) taken to have been made by the administrator (as affirmed, varied or substituted by the internal reviewer), and

(b) taken to have been made on the date on which the applicant is given a notice under subsection (6).

1. At [33], counsel for the respondent also submitted that it was not relevant to ask whether the decision of the internal reviewer was a decision made in the exercise of the same function under which the original decision maker made his or her decision, because, under sections 6(2) and (3) of the ADR Act, even a 'purported decision' is taken to be a decision made under the enabling legislation (in this case the Firearms Act). Section 6 relevantly provides:

6 Meaning of "decision"

(1) General meaning A decision includes any of the following:

...

(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument,

(d) imposing a condition or restriction,

...

(2) Decision made under enabling legislation For the purposes of this Act, a decision is made under enabling legislation if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enabling legislation.

(3) Decisions made without 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.

1. At [36] to [40], counsel for the respondent submitted that there was no constraint arising from the 'first instance' (original) decision. A decision of the Supreme Court and two decisions of the Tribunal were cited in support of this submission. We have dealt with these decisions below.
2. At [41] to [45], counsel for the respondent submitted that by reason of section 53(10) of the ADR Act, the appellant did not have a right to make an application for internal review of the respondent's decision to revoke his licence. As indicated above, section 53(10) provides that a person is not entitled to a review under section 53 of any decision previously reviewed under that section or a decision made under subsection (5).

1. A decision to impose a condition on a licence and a decision to revoke a licence are each a decision that is administratively reviewable by the Tribunal where the requirements of section 55(1) to (3) of the ADR Act are satisfied. Section 55(3) provides that where an applicant seeking external review is entitled to have the decision the subject of review internally reviewed, an application for external review may not be made to the Tribunal unless the applicant has duly made such an application, and the internal review is taken to be finalised under section 53(9).
2. At issue in this application is whether the decision to revoke the appellant's firearms licence was a new decision or a decision that was open to the respondent to make on internal review of the decision to impose a special condition on the appellant's licence. If it was a new decision, of which the appellant was entitled to seek internal review, the Tribunal's authority to review that decision could only be enlivened if the Tribunal was satisfied of the matters in section 55(4)(b) of the ADR Act. As noted above, that section provides that the Tribunal may deal with an application for administrative review of an administratively reviewable decision even though an application for internal review of that decision had not been made where the Tribunal is satisfied that it is necessary to do so in order to protect the interests of the applicant seeking review and the application for review was made within a reasonable time after the decision the subject of review was made. In this case, there is no evidence of the Tribunal having been so satisfied.
3. We accept that the decision to impose a condition on the appellant's firearms licence and the decision to revoke the appellant's licence are decisions falling within section 6(1)(c) and (d) of the ADR Act, and that they are each a decision made under the enabling legislation, the Firearms Act, in the exercise of the function/power conferred under section 19(1) and section 24(2) of the enabling legislation: ADR Act section 6(2).

"13 Whilst not squarely raised in this review by him, I note that in conducting the review of conditions request that Mr Whitfield was not alerted to the possibility that that review could or would be broadened to examine matters not raised by him. This had the effect of turning the conditions review into a licence reconsideration by the Commissioner's delegate. There appears to have been no attempt to alert Mr Whitfield to the approach and conclusion that the delegate would make and it would appear that he was not offered the opportunity to address any considerations beyond the issuance or maintaining of conditions.

14 Whilst the Firearms Act is an important public safety statute it seems unorthodox at least and procedurally unfair that such steps would be taken without any notice or an opportunity to respond prior to a final decision. (See Parker v DPP (1992) 28 NSWLR 282).

15 Whilst Parker deals with a sentence severity appeal the case is often cited when a decision maker has neglected to alert a person to the possibility of a harsher outcome with an invitation to withdraw the discretionary application (such as a review of conditions) being the equivalent remedy identified in Parker. However I again note the objects and purpose of the Firearms Act and it may be that notwithstanding the valid issue of the licence in 2017, and the imposition of conditions in December 2021, that the Commissioner now has their own reasons for bringing a different position to the matter on the same facts."

1. In Whitfield, at no stage did the Tribunal consider the proper construction and application of sections 53(5) and (5A) of the ADR Act. Instead, the focus of the Tribunal was whether the notice requirements in section 24 of the Firearms Act had been met. This has not been an issue in this application.
2. W_e_ are not called upon to express a view as to the correctness of the decision in Whitfield. It is sufficient to observe that the decision does not provide any guidance on the proper application of section 53(5A) of the ADR Act or the administrative review jurisdiction of the Tribunal where the internal reviewer made a decision on internal review that was not open to it in the exercise of the same function/power that had been exercised by the original decision maker in making the original decision.
3. Counsel for the respondent also referred to the following remarks of Basten JA made in Solomon v Commissioner of Police (NSW) [2021] NSWSC 236 (Solomon) at [40] and [41], concerning section 53(5A) of the ADR Act:

"40 ... [The right] to internal review arose under s 53 of the Administrative Decisions Review Act. The function of the reviewer was identified in s 53(5A) in the following terms:

53 Internal reviews

...

(5A) Reviewer has functions of administrator In exercising a function under subsection (5), an internal reviewer is taken for all purposes to have the right to exercise the same functions under any relevant legislation or other law that the administrator had in making the decision being reviewed.

41 There are two other features of the Administrative Decisions Review Act which bear upon the possibility for, and scope of, procedural steps in carrying out an internal review. The purpose of an internal review, as revealed by the structure of the Act, is both to provide an opportunity for self-correction by the authority making the decision and, secondly, to impose such an opportunity as a pre-condition to the exercise of merit review by the Civil and Administrative Tribunal. The second purpose appears from s 55 of the Administrative Decisions Review Act, ..."

1. In that case, the plaintiff commenced proceedings in the Supreme Court seeking judicial review of a firearms prohibition order made by the respondent under section 73 of the Firearms Act. That order was originally made and took effect in January 2019. The order prohibited the plaintiff from acquiring, possessing or using firearms, firearm parts or ammunition. The plaintiff sought internal review of that decision under section 75(1)(f) of the Firearms Act and section 53 of the ADR Act. On 4 November 2019, the respondent affirmed the firearms prohibition order. Eleven months later the plaintiff filed a summons in the Supreme Court seeking an order, under the Court's supervisory jurisdiction, for the internal review decision be quashed. The grounds for seeking the order were that the internal reviewer, in conducting the review, had considered events for which no charges had been laid and were not before or considered by the original decision maker. Basten JA dismissed the plaintiff's summons.
2. In our view, contrary to the suggestion of counsel for the respondent, Basten JA did not construe the application of section 53(5A) of the ADR Act to vest in the internal reviewer a 'function' other than the 'function' the original decision maker had exercised in making his or her decision. As noted above, the term 'function' is defined in section 4(1) of the ADR Act to include a power.
3. On the contrary, in Solomon, Basten JA accepted that, in considering relevant information that was not before the original decision maker, the internal reviewer had nevertheless exercised the same function/power exercised by the original decision maker in affirming the original decision. This is consistent with the well accepted view that, on internal review the internal reviewer considers the matter (the original decision) afresh, and in doing so can consider any additional material that is relevant to the decision the subject of review.

"21 The internal reviewer varied the original decision concerning the statutory basis for the refusal. The statement of reasons identifies s 20(1)(a2) of the HB Act, rather than ss33C(1)(b)(i) and 33D(1)(b), as the source of power. The reasons state that ss 33C(1)(b)(i) and 33D(1)(b) set out matters of which the Secretary must be satisfied rather than confer the power to refuse."

1. Counsel for the respondent cited in support of the respondent's case the remarks of the Tribunal at [26] where, having cited section 53(8), the Tribunal said that 'it is the decision of the internal reviewer (rather than the decision of the original administrator) that is reviewed by the Tribunal on an administrative review'.
2. Section 53(8) ADR Act sets out, for the purpose of the ADR Act (to provide a preliminary process for internal review), the status of a decision made on internal review of the administratively reviewable decision, and when that internal review decision is taken to have been made. The section does no more than provide that the decision on internal review under section 53(5) 'is taken to have been made by the administrator (as affirmed, varied or substituted by the internal reviewer)', and is taken to have been made on the date on which the applicant is given notice of the internal review decision under section 53(6). It does not provide that the internal review decision replaces the original decision. In our view, sections 53(8) and (9) set out when the internal review process in that section is finalised for the purpose of identifying when an applicant's right to seek external review arises where the applicant remains dissatisfied with the original decision of the administrator and the decision of the internal reviewer. Where an internal review was sought of the original decision of the administrator and the review applicant is not notified of the outcome of the internal review within 21 days of the review application having been lodged, section 53(9)(b) gives the review applicant the right to seek external review.
3. In our view the remark of the Tribunal at [26] is taken out of context and does not assist the respondent. At [21], the Tribunal noted that in the original decision the administrator incorrectly identified the power under which the decision had been made. The Tribunal noted that the respondent's power to issue or refuse an application for a contractor licence was set out in section 20 of the HB Act and the grounds on which that power could be exercised included those prescribed in sections 33B and 33C. Section 20 of the HB Act, like section 11 of the , prescribed several mandatory and discretionary matters of which the administrator must be satisfied before deciding to issue a contractor licence. In , on internal review, the internal reviewer, in the exercise of the power under section 20(1)(2a) of the HB Act, also decided to refuse Mr Fong's application for a contractor licence on the grounds prescribed in sections 33B and 33C.

Did the Tribunal identify the wrong issue or ask itself the wrong question by conflating the public interest test and the fit and proper test?

1. Notwithstanding our findings above, we consider it appropriate to deal with the second question for which we sought further submissions as, for the reasons which follow, we find that the Tribunal below erred in conflating the public interest test and the fit and proper person test which also necessitates the setting aside of the decision.
2. As noted above, at [15], under the heading 'Relevant legislation' the Tribunal set out the underlying principles of the Firearms Act in section 3(1)(a) and (b) of that Act.
3. The Tribunal also set out the terms of section 11(3)(a) and (7) of the Firearms Act. Section 11, as we have noted, sets out the mandatory and discretionary restrictions on issuing a firearms licence and in this regard, section 11(3)(a) provides that the respondent must not issue a licence unless satisfied that the applicant for the licence is a 'fit and proper person and can be trusted to have possession of firearms without danger to public safety or the peace': (the 'fit and proper' test). And section 11(7) is a discretionary ground to refuse to issue a firearms licence where 'the issue of the licence would be contrary to the public interest': (the 'public interest' test).
4. While the Tribunal's decision was to affirm the decision of the respondent to revoke the appellant's firearms licence and not a decision to refuse to issue the appellant with a firearms licence, the grounds on which a firearms licence may be revoked also includes a '' test (see and a '' test and clause 20 of the ). Accordingly, in our view, nothing turns on the Tribunal's reference to and (7) as the tests in these sections have the same meaning as those in and (2)(d) and clause 20. The only difference being that the '' test in is a discretionary ground on which a firearms licence may be revoked where the '' test in is a mandatory ground on which an application for a licence must be refused.

"27 The public interest considerations in s 11(7) of the Firearms Act can include an applicant's fitness or character that are mentioned separately in s 11(3)(a), see Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 368 (at [93]):

Such considerations may include an applicant's fitness or character if that is relevant to an assessment of the public interest (as it would usually be), notwithstanding that an applicant's fitness or character is a separate matter to be considered under s 11(3)(a).

28 The Respondent contends the Applicant is not a fit and proper person to hold a firearms licence under s 11(7) of the Firearms Act. Whether an applicant is a fit and proper person to hold to licence is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, NSW Police Force [2014] NSWCATAD 184; is to be determined by reference to 'the activities in issue': Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82]; and gauged in 'light of the nature and purpose' of those activities: AJO v Director-General of Transport [2012] NSWADT 101 at [26].

29 For firearms licences, the Tribunal is required to form "a positive state of satisfaction" that an applicant is a fit and proper person who can be trusted to possess firearms without danger to public safety or to the peace: Commissioner of Police, New South Wales Police Force v EMB [2021] NSWCATAP 63 at [45]."

1. While counsel for the respondent argues that the very brief findings of the Tribunal that immediately follow these paragraphs were made on character grounds and not on 'fit and proper' grounds, it is difficult to separate these findings from the paragraphs that immediately precede those findings. This is particularly so given the Tribunal's misapplication of the reasoning of the Court of Appeal in Kocic that the 'public interest considerations in s 11(7) of the Firearms Act can include an applicant's fitness or character that are mentioned separately in s 11(3)(a)'.
2. The issue in Kocic was whether the circumstances surrounding Mr Kocic's prior convictions for firearm offences, which were spent convictions under section 12 of the Criminal Records Act 1991 (NSW), could be considered as a factor relevant to the 'public interest' in section 11(7) of the Firearms Act. The Court of Appeal, and the Appeal Panel before it, agreed that the spent convictions were not matters the Tribunal could consider in determining whether Mr Kocic was a 'fit and proper person' under section 11(3)(a) of the Firearms Act. However, the Court of Appeal went on to find that the circumstances surrounding these spent convictions were a factor relevant to the '' in so far as they were reflective of Mr Kocic's character or characteristics and whether based on these characteristics it was not in the '' to issue him with a firearms licence. In this regard:

"41 The proper reading of s 11 is that no bright line can be drawn between the factors relevant under subs (7) and those which must be addressed under the other subsections. Relevantly for present purposes, there may be characteristics of the applicant which do not lead the Commissioner to refuse a licence under one of the other provisions, but nevertheless permit the refusal of a licence under subs (7). ..."

(2) at [92] per Leeming JA concluded (italics added):

"92 ... [However, there is] no reference to "character or fitness" in s 11(7), and forming a view that the issue of a licence is "contrary to the public interest" is a very different concept. Indeed, as is clear ..., "public interest" itself can mean quite different things in different contexts. But it is sufficient for present purposes to observe that it is different from the concept of "fit and proper and can be trusted ..." in s 11(3). Hence s 12(c) of the Criminal Records Act] does not apply to s 11(7) directly. It is not to the point that an applicant's character or fitness may be relevant to a consideration of the public interest, for s 12(c) applies at the textual level."

"106 My conclusions on these questions are as follows:

...

5. The matters that can be taken into account in making an assessment of the public interest pursuant to s 11(7) are not limited to matters not otherwise dealt with by s 11(3). Such considerations may include an applicant's fitness or character if that is relevant to an assessment of the public interest (as it would usually be), notwithstanding that an applicant's fitness or character is a separate matter to be considered under s 11(3)(a) and notwithstanding that in applying s 11(3)(a) the Commissioner cannot have regard to the spent convictions or the conduct underlying them."

1. In our view, having accepted the case put forward by the respondent, the Tribunal went on to misapply the reasoning of the Court of Appeal in Kocic and identified the wrong issue and asked itself the wrong question by conflating the 'fit and proper' test with the 'public interest' test when there was one issue and only one issue before the Tribunal, namely whether, pursuant to clause 20 of the Firearms Act, it was not in the 'public interest' for the appellant to continue to hold his licence.
2. As noted above, identifying the wrong issue and asking itself the wrong question raises a question of law.

1. For the reasons set out above we have found that:

(1) the Tribunal misdirected itself as to its authority, under the Administrative Decisions Review Act 1997 (NSW) (ADR Act), to review the decision of the respondent to revoke the appellant's firearms licence. On the proper construction of sections 53(5) and (5A) of the ADR Act, the decision to revoke the appellant's firearms licence was a new decision for which the appellant was entitled to seek internal review and in the absence of the appellant having duly made an application for internal review, or the Tribunal having satisfied itself of the matters in section 55(4)(b) of the ADR Act, the Tribunal lacked the authority to review that decision; and

(2) the Tribunal identified the wrong issue and asked itself the wrong question by conflating the 'fit and proper' test with the 'public interest' test when there was one issue and only one issue before the Tribunal, namely whether, pursuant to clause 20 of the Firearms Regulation, it was not in the 'public interest' for the appellant to continue to hold his licence. A factor relevant to this issue may involve the characteristics of the appellant, but the appellant's fitness and propriety as required under section 24(2)(c) was not in issue before the Tribunal below.

1. Based on our findings, we have decided that it is appropriate to allow the appeal and set aside the decision of the Tribunal and remit the proceedings to the Tribunal, differently constituted, to reconsider the matter in accordance with these reasons for decision and with or without further evidence as the Tribunal may allow. This includes an initial determination, on the material that is before the Tribunal on reconsideration, whether it should exercise its discretion in section 55(4)(b) of the ADR Act and deal with the appellant's application for review of the decision to revoke his firearms licence in the absence of the appellant having duly applied for internal review of that decision when he was entitled to do so. As noted at [131] above, subject to the Tribunal on reconsideration exercising its discretion under section 55(4)(b) ADR Act, the appellant will need to consider whether he presses his application for review of the decision to impose a condition on his licence.

1. Based on our findings we make the following orders:

(1) The appeal is allowed.

(2) The order made by the Tribunal on 8 July 2024 is set aside.

(3) The proceeding is remitted to a differently constituted Tribunal, in the Administrative and Equal Opportunity Division, to reconsider in accordance with these reasons for decision and with or without further evidence as the Tribunal may allow.

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.