Price v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2024-06-18

REASONS FOR DECISION

This is an interlocutory application brought by the Respondent for the dismissal of the proceedings for want of jurisdiction pursuant to s55(1)(b) of the Civil and Administrative Tribunal Act 2013 (CAT Act).

Background

On 3 April 2024, the police took the Applicant's firearms and his physical licence. The visit to the Applicant's resident was in response to the Applicant's former partner contacting the police. According to the police report, the Applicant's former partner expressed concerns over the Applicant's mental health. The Applicant's former partner also referred to having verbal arguments with the Applicant which was in the context of their impeding separation. The police report states: The [Applicant's former partner] stated no threats of violence of physical incidents had occurred she just wished for some advice on an impeding separation… The [Applicant's former partner] had no fears for her safety however fears for the [Applicant's] mental health… Police sighted the children who appeared happy and well with their grandparents … The [Applicant's former partner] provided police with permission to enter the property as a lawful occupier … to seize the firearms.
The police then attended the residence of the Applicant and seized his firearms. According to the police report, police explained that under "legislation" they had to seize the firearms for a 28-day cooling off period. The police records also record: … [the Applicant' allowed police into the house and opened the safe to provide the firearms…. Police asked questions in relation to mental health however the [Applicant] did not displace signs of a need for a mental health assessment.

The Notice

Under the heading "Notice of Suspension" in the Notice, the Notice's sub-heading states: Firearms Act 1996 - sections 22, 23, & 30 and Weapons Prohibition Act 1998 - sections 16 & 17
Section 23 of the Firearms Act 1996 (the Act) provides for an automatic suspension on the making of an interim apprehended violence order against the licence holder. Section 30 provides for the suspension of a permit. It is not in dispute that these provisions are irrelevant in respect of this matter.
Section 22 provides that the Respondent may suspend a licence if satisfied that there are grounds for revoking a licence and this is given effect by serving a notice personally or by post that complies with s22.
Pursuant to s 22 of the Act, the ability to suspend a licence is subject to compliance with that section and specifically the service of a compliant notice.
Section 11(5A) applies where the person is the subject of a "criminal intelligence report or other criminal information". It is self-evident from the Notice that it did not purport to be a notice pursuant to s 11(5A) of the Act as it provides that the recipient can make written submission as provided by section 22(1)(b).
The Notice relevantly states, by way of introduction: Police have the authority to seize firearms under sections 25(2) & 30(7) of the Firearms Act 1996 where a firearms licence or permit is suspended, revoked or otherwise ceases to be in force. … The firearms licence … holder has a legal obligation under section 25(1) & 30(6) of the Firearms Act 1996 to immediately surrender to police any firearm in the person's possession and the licence or permit, when a licence or permit is suspended, revoked or otherwise ceases to be in force.
In the body of the Notice, the details of the Applicant are included. In that section, the reasons for the suspension are limited to the following words: Not fit and proper person
There are then spaces for the "Suspension Commencement Date" and the "Suspension Expiry Date". In the case of the Notice, the commencement date is stated to be 21 May 2024. The expiry date is left blank.
The Notice then includes the firearm details associated with the recipient and the licence.
On 30 May 2024, the Applicant sought administrative review of the decision of the Respondent.
On 18 June 2024, the matter was listed for directions. At that directions hearing, the Respondent made application to dismiss the proceedings based upon a want of jurisdiction. As put by the Respondent, as the decision was a decision to suspend, the Tribunal did not have jurisdiction to administratively review it and the applications should be dismissed.
The Applicant indicated that the notice was defective including, but not limited to, the absence of an expiry date and that the circumstances of the giving of the notice were procedurally unfair and it was open to the Tribunal to exercise jurisdiction.
A timetable was set to allow the parties to file and serve evidence and make further submissions in respect of the jurisdictional issue.
On 3 July 2024, and after the directions hearing the Applicant was issued with what the Respondent described as a "further notice of suspension in substitution of the Notice" (the Second Notice). The covering letter of the Respondent states: I note your firearms licence was suspended by Police. The attached Notice of Suspension is issued in substitution of that suspension from the date of service specified the attached Notice…
The suspension commencement date of the Second Notice is 12 July 2024 being approximately 4 months after the firearms of the Applicant had been taken by the police. The Second Notice states it is valid for 12 months unless the suspension is lifted or the licence is revoked. The reasons for the alleged suspension are stated to be: Not in the public interest Concerns in relation to mental health.

Applicable legislation

The Tribunal does not have general jurisdiction over all decisions made by government agencies. Under s 7 of the Administrative Decisions Review Act 1997 (NSW) (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". In the absence of an empowering provision.
In addition to establishing a legislative source, s 55(3) of the ADR Act provides that an applicant to the Tribunal must apply for an internal review if that was possible. Section 55(3) states: (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).
Section 55(4) provides an exception to this in the following terms: (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.
With respect to the jurisdiction of the Tribunal pursuant to the Act, s 75(1) provides: (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.
Significantly, for the purposes of this application, s 75(1) of the Act does not provide the Tribunal with jurisdiction in respect of a decision to suspend a licence. This is consistent with the decision of Uzelac v Commissioner of Police, NSW Police Service [2004] NSWADT 34 at [26].
With respect to the jurisdiction to determine this application, as observed in Karmez v Commissioner of Police [2019] NSWCATAD 149, a power of dismissal is available to the Tribunal as: 1. a lack of jurisdiction could come within the words "misconceived or lacking in substance" in s55(1)(b) of the CAT Act; and 2. the power arises by necessary implication as the Tribunal can only review matters if set out in empowering legislation. To that end, the Tribunal has a duty to satisfy itself that it has the jurisdiction to hear and determine the proceeding: Moonee Valley CC v Top Cut Industries Pty Ltd [2010] VCAT 401 at [23].

Submissions and evidence

The Applicant submitted, in summary: 1. The Notice was, on a literal interpretation and in substance, a notice of revocation and the Second Notice was otiose. As it was a notice of revocation, the Tribunal has jurisdiction. 2. Otherwise, the Applicant concentrated on the substance of the Notice and contended that the form adopted created procedural unfairness. In the Applicant's written submissions, the Applicant states "Courts and tribunals may construe a statutory provision as implying that a power be exercised with regards to procedural fairness where a party's interest might be adversely affected by that power". Reliance was placed on Kioa v West (1985) 159 CLR 550. In respect of these submissions, the Applicant appeared to be contending that the Tribunal ought to construe its jurisdiction to include matters where there is a denial of natural justice by the respondent-agency. 3. As to the examples of alleged unfairness, the Applicant included: 1. there is no evidence that the Respondent considered the Applicant's fitness and propriety despite this being the basis indicated in the Notice and the Second Notice 2. the incomplete Notice denied the Applicant the ability to challenge it. 3. there was an absence of information provided to the Applicant with the "reasons" in the notices being a few words and unhelpful to inform the Applicant.
The Applicant relied upon the Notice and written submissions filed 19 July 2024.
In summary, the Respondent contended: 1. The Second Notice was "in substitution" for the first in that the first Notice was effective in suspending the Applicant's firearm's licence with the suspension being open-ended. 2. The Act makes plain that licence suspensions are different from revocations. 3. The statutory scheme of the Act makes it clear that suspension is an "interim status of the licence" as described by the Respondent. That status is imposed on the basis that there "may be" grounds for revocation and allows the Respondent time to consider whether the licence should be revoked along with any submissions and further information provided by the recipient of the suspension notice. The Respondent contended that in this context, it would be premature for the Tribunal to be able to review a suspension, as there are no factual or legal findings of the Respondent to review other than the formation of a preliminary view. 4. Other differences include: 1. With a suspension, the applicant remains a licence-holder albeit the authorisations cannot be exercised. By contrast, the revocation means the applicant is no longer a licence-holder. 2. Unlike a suspension, the revocation cannot be lifted by the Commissioner.
In addition to their oral submissions, the Respondent relied upon a police report, the Second Notice and written submissions.

Issues before the Tribunal

The questions before the Tribunal are: 1. What is the decision that has been made with respect to the Applicant's licence? Has the licence been suspended, revoked or something else? 2. Based on the answer to (1), is the decision a decision that a person may apply to this Tribunal for administrative review within s 75(1) of the ADR Act? 3. If the answer to (2) is yes, should the Tribunal exercise its discretion pursuant to s 55(4) of the ADR Act given the absence of an internal review?

Is the decision a suspension, a revocation or something else?

It is necessary to characterise the decision as a first step. If follows that if 1. the decision, properly characterised, is a revocation - the Notice and/or the Second Notice cannot change a revocation into a suspension unless the Respondent has the power to repeal the revocation and replace it with a suspension. If the Applicant's licence has been revoked, the Tribunal has jurisdiction subject to an exercise of discretion pursuant to s 55(4) of the ADR Act. 2. the decision, properly characterised, is a suspension - the Tribunal does not have jurisdiction: Uzelac v Commissioner of Police, NSW Police Service [2004] NSWADT 34.
As noted above, the Respondent submits that a suspension "is an interim status of the licence" reflecting the "formation of a preliminary view" of the Respondent.
For the reasons that follow, I accept that a suspension "is an interim status of the licence" reflecting the "formation of a preliminary view" of the Respondent. So much is made plain by s 22(1)(b) of the Act that provides that a notice of suspension must request that the person provide the Commissioner with reasons why the licence should not be revoked and s22(1) and s22(3) refers to a "period [of time]" for the suspension. This reflects that a suspension is a preliminary step which may led to revocation depending upon the further consideration of the Respondent.
Section 22 provides: (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. [Emphasis added]
As is also made plain by the terms of s 22(1) of the Act, the Respondent is only taken to have exercised the discretion in s 22(1) by the service of a notice compliant with s 22. Where there is no service of a compliant notice, there is no suspension pursuant to s 22.
In this respect, while s 22(1) uses the word "may" indicating that the Respondent has a discretion to suspend a licence in the circumstances therein provided, the section also makes clear that to do so, a notice that complies with s 22 must be served personally or by post. There is no discretion with respect to the service of a compliant notice.
Section 22 of the Act further provides that a suspension notice must: 1. State that the licence is suspended (Section 22(1)(a) of the Act); 2. The reasons for suspending it (Section 22(1)(a) of the Act); 3. Request that the person provide the Commissioner with reasons why the licence should not be revoked (Section 22(1)(b) of the Act); and 4. Specify the period by which the licence is suspended (Section 22(3) of the Act).
In consideration of s 22, I accept that the Notice is not a suspension notice in that it was ineffective in establishing a suspension pursuant to s 22 of the Act.
First, the alleged suspension-decision, is absent the fundamental characteristic of being interim in status given the absence of an expiry date in the Notice.
Secondly, but also based on the absence of an expiry date, the Notice is non-compliant with s 22(3) of the Act in that no "period" is specified. In this respect, I reject that a "period" of time for the purposes of s 22(3) can be one that has no end date and exists, or potentially exists, in perpetuity. According to its plain meaning, "period" signifies some specified division or portion of time and there is no reason to depart from this ordinary meaning given it is consistent with the word's context and the interim character of a suspension.
This finding is consistent with the reasoning of the Western Australian Court of Appeal in the matter of Harman Nominees Pty Ltd v Leighton Shores Pty Ltd [2012] WASCA 189. In that case, the Court of Appeal considered the meaning of "period" in s 70(4) of the Strata Titles Act 1985 (WA). Section 70(4) of that Act is a protective provision for a purchaser of a lot in a strata scheme and provides that a purchaser may avoid a sale contract if the plan is not registered in a particular period. The section states: If the strata/survey-strata plan is not registered - (a) within such period after the date of the contract as is agreed in writing by the purchaser and the vendor; or (b) in the absence of any such agreement, within 6 months after that date, the purchaser may avoid the sale at any time before the plan is registered.
The primary judge held that the "period", referred to in s 70(4)(a), is an interval of time with a definite end date. He said: In the end … I favour [the] position as to the need for fixed and discernible precision in the setting of an end date in any agreed period as between the vendor and the purchaser under s 70(4)(a)
The Western Australian Court of Appeal agreed with the primary judge with respect to this finding. Murphy JA held (at [136]): In its ordinary meaning, the word "period", when used in connection with a specified commencement date, and when applied to a timeframe "within which" something is to be done, would signify some specified division or portion of time. In such a context, it ordinarily connotes a measurable and finite interval of time. There is, in the text of s 70, read in the context of the Act as a whole, no basis upon which to depart from the ordinary meaning of the word "period" in this regard ... The ordinary meaning also accords with, and serves the object of, the beneficial nature of the provision.
Consistent with this reasoning, it is clear in the context of s 22 of the Act that the word "period" connotes a measurable and finite interval of time consistent with the purpose of the provision and the scheme of the legislation.
Thirdly, the reasons for the decision are not stated.
I do not accept that "Not fit and proper person" is sufficient to provide reasons for the suspension because it is a conclusion and does not disclose the reasons for reaching that conclusion. The words "Not fit and proper person" gives no hint as to what those reasons may be in the context that the reasons for reaching the conclusion that someone is not a fit and property person are innumerable. A consideration of the range of decisions produced by this Tribunal where it is alleged that an applicant is not fit and proper is a testament to that. As such, a reference to that conclusion and that conclusion alone, does not give the recipient of the Notice the opportunity to engage with the reasons so as to provide the Commissioner with any reasons why the licence should not be revoked. It is expressly acknowledged by virtue of s22(1)(b) that the notice should provide that opportunity.
I reject that the two references to s 22 in the Notice leads to a different conclusion. The Notice is not a notice that complies with s 22 for the reasons above irrespective of those references. As it is not compliant with s 22 of the Act, it was ineffective in suspending the Applicant's licence. As such, it cannot be said that the Commissioner has made a decision pursuant to s 22(1). The decision the subject of the Applicant's administrative review application with reference to the Notice is not a decision to suspend pursuant to s 22 of the Act.
In Uzelac v Commissioner of Police, NSW Police Service [2004] NSWADT 34 at [27] (Uzelac), Judicial Member Montgomery held that a decision to suspend was not an administratively reviewable decision pursuant to s55 of the ADR Act: at [26]. It was also held that: 1. a purported suspension notice with an indefinite period was invalid: at [27]. 2. despite the invalid notice, the decision for review was to suspend because, according to Judicial Member Montgomery "it is apparent from the wording of the Notice that it issued under either section 22 or section 30 of the Act": at [23].
I agree with the Judicial Member Montgomery's reasoning that a decision to suspend is not an administratively reviewable decision pursuant to s55 of the ADR Act. I also agree that a notice with an indefinite period is invalid as a suspension notice for the reasons above. However, I do not accept, as held in Uzelac, that the decision is correctly characterised as a suspension in circumstances where a compliant notice has not been served pursuant to s 22(1). As is made plain by the terms of s 22(1) of the Act, the Respondent is only taken to have decided to suspend a licence by the service of a notice compliant with the section.
Nor do I accept that the decision of Uzelac precludes a finding that the decision is a revocation. First, this was not given consideration in Uzelac presumably because the submission was not made. Secondly, the resolution of that issue requires a consideration of all the circumstances of a particular case.
The next step is to consider whether the decision, related to the Notice, is a revocation.
"Revocation" is not defined in the Act. The Encyclopaedic Australian Legal Dictionary defines it as: The calling back of a thing granted or cancellation of a prior act. Often used in relation to gifts, wills or licences where no consideration is given or where the agreement pursuant to which the licence is granted provides for the revocation of the licence.
The phrase is used in many contexts such as, by way of example, "revocation of an offer"; "revocation of an authority", "revocation of probate", "revocation of will". In all situations, it means a withdrawal or termination consistent with its plain meaning.
The power of the Respondent to revoke is provided for in s 24 of the Act. Section 24 states: (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 firearm 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. [Emphasis added]
Unlike s 22 of the Act pertaining to suspension, s 24 does not make the service of a compliant notice a necessary step in the decision to revoke a licence. Unlike s 22(1), s 24(2) provides for the discretion to revoke and s 24(3) provides for a discretion to serve a notice. The failure to give a notice or the failure to give a compliant notice pursuant to s 24(3) is not fatal to the decision to revoke. Accordingly, the fact that the Notice does not provide sufficient information to allow the Applicant to understand the reasons for the decision as discussed above does not mean that a revocation did not occur.
That therefore leaves the question of whether in all the circumstances, it is correct to characterise the events in the circumstances of this case as a revocation of the Applicant's firearms' licence. That is, was it a withdrawal or termination of the Applicant's firearms' licence and an exercise of the power pursuant to s 24?
In the current circumstances: 1. The Applicant's firearms and firearms licence were physically confiscated along with his laminated licence on 3 April 2024. The basis of that confiscation is unclear on the evidence at least with reference to s 85 of the Law Enforcement (Powers and Responsibilities) Act 2002 for the reasons provided at paragraphs 4 to 7 above. 2. On the 2 May 2024, the Respondent served on the Applicant the Notice. The Notice refers to the power of the police to seize the Applicant's firearms with the Notice indicating that for the period specified in that Notice, the Applicant is not authorised to possess or use firearms. The period specified in that Notice begins that day and has no end date. The absence of an end date to that withdrawal of authorisation is consistent with a revocation of a licence. The Notice also refers to the power of the police to seize firearms pursuant to s 25(2) of the Act. That provision provides that the power to seize arises in the case, inter alia, of a revocation. 3. The Notice supports that a final decision with respect to the Applicant's suitability as a firearms licensee had been made which is consistent with a revocation. According to the Notice, the Respondent had concluded that the Applicant is "Not a fit and proper person". That is the purported sole "ground" expressed. This wording is devoid of any qualification or suggestion that this finding is a preliminary or tentative view. This stands in contrast to the wording in the Second Notice which, while adopting the same wording of "Not a fit and proper person", also adds "Concerns in relation to mental health" [Emphasis added]. The latter wording unlike the former suggests a preliminary or tentative view by the use of the word "Concerns". Characterising the decision as a revocation of the Applicant's licence aligns with the evidence that the Respondent had concluded that the Applicant was not a fit and proper person. In such circumstances, the Respondent had a discretion to revoke a licence pursuant to s 24(2)(c) of the Act and did so.
I do not accept that the reference in the Notice to s 22 of the Act leads to a different conclusion. The decision that was made on 2 May 2024 was to revoke the Applicant's firearm licence and seize his firearms based on a finding that he was not a fit and proper person. The use of pro forma forms which cite incorrect legislative provisions is unpersuasive in the context of all the circumstances.
In all the circumstances, I find that the Applicant's firearms' licence was revoked on 2 May 2024.
The next step is to consider the effect, if any, of the Second Notice given the findings above.
It follows that as the decision is a decision to revoke, the Second Notice cannot change that revocation to a suspension for the following reasons.
First, such is self-evident because once the licence is revoked, there is nothing left to suspend.
Secondly, the Commissioner does not have power to withdraw a suspension (except pursuant to the Act). This was expressly submitted by the Respondent who contended that a distinction between a suspension and a revocation is "unlike a suspension, the revocation cannot be lifted by the Commissioner". I accept that here is no power in the Act to revoke a suspension except pursuant to s 24(5) which states: 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
Section 24(5) of the Act has no applicable to the current proceedings as the Notice had taken effect by the time of the Second Notice.
Otherwise, s 43 of the Interpretation Act 1987 (NSW) relates to the implied power to amend or repeal statutory rules and orders. Section 43(2) of Act states: If an Act or statutory rule confers a power on any person or body to make an order (whether or not the order must be in writing), the power includes power to amend or repeal any order made in the exercise of that power.
While this provision has been held to apply to firearms prohibition orders, the basis of that application was because the legislature has expressly provided that a firearms prohibition is an "order" (see for example Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 93 and Tukel v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 63). However, there has been some doubt cast as to whether that is correct with some authorities indicating that "order" for the purposes of s 43(2) is limited to orders of a legislative character or of a judicial nature. As stated in Interpretation Acts in Australia, 2ed (2023) at [8.33]: Section 43 of the Interpretation Act applies to statutory rules and orders only. 'Order' is not defined. It may be thought to cover decisions of an administrative character provided that they take the form of an 'order'. However, this is not certain. The juxtaposition of the reference to 'order' with 'statutory rules' may lead to 'order' being limited to orders of a legislative character. This was the view taken in Hollingsworth v Commissioner of Police (2007) 160 IR 456; [2007] NSWIRComm 7 document for this case to hold that a reinstatement order of the Commission could not be varied under s 43(2). The section was not concerned with orders of a judicial nature. However, in Summersford v Commissioner of Police [2017] NSWSC 1341 at [82] document for this case it seemed to be accepted without any real discussion that the provision permitted a disciplinary order to be revisited.
In either case, there does not appear to be any controversy that the provision does not apply to the exercise of a decision-making power that is not identified as an "order". In this respect, the section omits a reference to an "instrument" despite that term being defined in s 3 as: "instrument" means an instrument (including a statutory rule or an environmental planning instrument) made under an Act, and includes an instrument made under any such instrument.
This is also despite the Commonwealth equivalent expressly including "instruments" (Acts Interpretation Act 1901 (Cth) s33(3)) as does the equivalent legislation in other States and Territories (Legislation Act 2001 (ACT) s 43 of the Interpretation Act 1978 (NT), s 43; Acts Interpretation Act 1954 (Qld) s 24AA; Legislation Interpretation Act (SA), s 40; Acts Interpretation Act (Tas), s 22; Interpretation of Legislation Act 1984 (VIC) s 27, s 38, s 41A; Interpretation Act 1984 (WA) s 43(4) although the Western Australian provision is limited to instruments of a legislative character).
In short, I accept, as submitted by the Respondent that unlike a suspension, the revocation cannot be lifted by the Commissioner unless that cancellation occurs prior to the commencement of the revocation. As the revocation in this matter had already commenced by the time of the Second Notice, even assuming that the Second Notice could be characterised as a cancellation of that revocation, it was ineffective. The Second Notice otherwise had no operative effect as the Applicant's licence had already been revoked.

is the decision a decision that a person may apply to this Tribunal for administrative review within s 75(1) of the ADR Act?

For the reasons above and in all the circumstances, the decision the subject of this administrative review is a revocation in respect of which, the Tribunal has jurisdiction pursuant to s 75(1)(c) of the Act depending upon whether the application is one that falls within s 55(4).

Should the Tribunal exercise its discretion pursuant to s 55(4) of the ADR Act given the absence of an internal review?

I accept that it is necessary for the Tribunal to deal with the application 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.
This is because the Respondent has denied that the decision was a revocation and one by which the Applicant may seek an internal review. In those circumstances, the Applicant could not have obtained an internal review. Given the position taken by the Respondent, it is necessary for the Tribunal to deal with the application to protect the Applicant's interests.
With respect to the application being made in a reasonable time, the revocation decision was made on 2 May 2024. The Applicant's application was filed on 29 May 2024 being 27 days later. I find this is a reasonable time for the filing of this application in consideration of the ambiguity that arose with respect to the decision given the use of a pro forma form entitled "Suspension" to effect a revocation.

Additional submissions regarding procedural fairness

The above findings are sufficient to resolve the issue of jurisdiction. However, the Applicant also made submissions related to jurisdiction based upon principles of procedural fairness. Specifically, the Applicant submitted that this Tribunal should exercise jurisdiction because "Courts and tribuanls may construe a statutory provision as implying that a power is exercised with regards to procedural fairness where a party's interest might be adversely affected by that power" - I reject the Applicant's contentions for the reasons below.
The approach taken by the Applicant confuses principles that bind the Tribunal with respect to the application of its own process and procedure with the question of jurisdiction.
It is uncontroversial that a material denial of procedural fairness by the Tribunal may amount to a jurisdictional error and an error of law. It is also uncontroversial that the fundamental rule of the common law doctrine of natural justice expressed in traditional terms is that, generally speaking, when an order is made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he/she/they is entitled to know the case sought to be made against him/her/they and be given an opportunity of replying to it: Kioa v West (1985) 159 CLR 550 at 552.
However, this is not the context the Applicant seeks to apply these principles. Rather, according to the Applicant, where a person can establish procedural unfairness of the respondent-agency in this Tribunal, the Tribunal can construe that it has jurisdiction and power to administratively review the application by implication. This is wrong and the decision of the High Court of Kioa v West (1985) 159 CLR 550 is not authority for this proposition.
The question of whether this Tribunal has jurisdiction is a question to be resolved by reference to the legislative sources which give it jurisdiction. The Tribunal being a creature of statute that does not exercise any inherent or equitable jurisdiction. Allegations as against a respondent-agency of procedural unfairness in the exercise of their function amounting to alleged denials of natural justice do not give this Tribunal jurisdiction where it otherwise does not have it. The question of jurisdiction of the Tribunal is not a discretionary decision to be made by the Tribunal.
While I find against the Applicant with respect to this submission, I find that the Tribunal has jurisdiction to administratively review the decision of the Respondent the subject of these proceedings.

Conclusion

With regard to the questions before this Tribunal the answers are as follows: 1. What is the decision that has been made with respect to the Applicant's licence? Has the licence been suspended, revoked or something else? 1. The decision by the Respondent was a decision to revoke the Applicant's firearms licence. The decision was made on 2 May 2024. 1. Based on the answer to (1), is the decision a decision that a person may apply to this Tribunal for administrative review within s 75(1) of the ADR Act? 1. Yes: s 75(1)(c) of the Act 1. If the answer to (2) is yes, should the Tribunal exercise its discretion pursuant to s 55(4) of the ADR Act given the absence of an internal review? 1. Yes.
As the Tribunal has jurisdiction, the Respondent should take steps to file and serve a copy of the documents pursuant to s 58 of the ADR Act and the matters should otherwise be set down for a directions hearing, so a timetable can be set to prepare it for final hearing,

Orders

I make the following orders: 1. Within 28 days of the publication of this decision, the Respondent is to file and serve a bundle of documents pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW). 2. The matter is listed for directions in the directions list by AVL on 12 November 2024 at 10:30am.

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 December 2024

Firearms Regulation 2006(NSW)

(Acts Interpretation Act 1901(Cth)

States and Territories (Legislation Act 2001(ACT)s 43

At a glance

Court

Decision date

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (14)

Cases Cited (9)

Cited By (1)