Rial v Commissioner of Police, NSW Police Force

The decision under appeal

1. Mr Rial applied to the Administrative and Equal Opportunity Division of the Civil and Administrative Tribunal for review of the Senior Adjudicator's decision.
2. The Tribunal's findings and reasons are set out in its decision of 31 October 2022.
3. In affirming the revocation decision, the Tribunal: 1. (at [20]) accepted that Mr Rial had no criminal record, was active in the community and sought a firearms licence to manage the animals on his farming property; however noted that private interests were not the only matters to be taken into account and that the interests of the whole community were matters for consideration, which includes public protection, public safety and public confidence in the administration of the licensing system; 2. (at [21]) found that there were a number of examples of Mr Rial's conduct over time which bore heavily upon the exercise of the discretion relating to his mental health: 1. He was involved in a verbal altercation with his son which led to his son seeking the assistance of the police due to the son's concern that Mr Rial might self-harm. The Tribunal considered that the police body-worn video showed Mr Rial in a highly emotional state and he conceded that that he had said words to the effect of I'm going to blow my head off. Mr Rial had conceded that he was temperamental and emotional, which the Tribunal found was demonstrated by the video on 2 October 2020 and the telephone conversations several months later with Registry staff. The Tribunal found that Mr Rial had displayed similar emotional behaviour during the Tribunal hearing by interrupting, talking over and arguing with counsel; 2. The Firearms Registry, because of this conduct, asked the Applicant to obtain a mental health risk assessment by a psychiatrist or psychologist and provided a proforma document for the treating mental health professional to complete which was quite specific and detailed in its requirements and criteria for mental health assessment. The Tribunal found: The Applicant declined to obtain an assessment by a psychologist/psychiatrist because of the cost, while at the same time making apparently significant expenditures on a holiday in Canada and re-stocking his farm. Of course, his spending priorities are a matter for the Applicant but the failure to obtain an adequate mental health assessment is clearly his choice. The medical report from his GP that he got instead is manifestly inadequate, stating only that "He appeared well and exhibited an appropriate mental health affect and appearance today. There is no documented history of Mental Health issues …". The doctor makes no mention of the incident of 2 October 2020, nor does he address any of the risk factors specifically identified in the Registry proforma mental health assessment document. 1. (at [23]) in those circumstances, the Tribunal considered the potential for self-harm was not a "minimal, fanciful or theoretical risk", that revocation of the firearms licence was the correct or preferable decision and found that the Applicant's circumstances were such that it would be contrary to the public interest for him to hold a firearms licence.

Grounds of appeal

1. Appeals from the Administrative and Equal Opportunity Division of the Tribunal are governed by section 80, Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Mr Rial has a right of appeal on a question of law, otherwise he requires leave to appeal.
2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (at [13]), the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has 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: Chapman v Taylor [2004] NSWCA 456 at [33], per Hodgson JA (Beazley and Tobias JJA agreeing). 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
3. In their discussion of "Flawed Reasoning Processes", in Chapter 6 of Judicial Review of Administrative Action and Government Liability (Lawbook Co 7th Edition 2022), Aronson, Groves and Weeks at [6.200] discuss the principle against self-imposed fetters, being the principle that those exercising statutory discretionary power should not place fetters upon the factors they can properly consider when exercising it in individual cases: Stated as broadly as this, such a principle seems eminently sensible and fair, requiring, as it does, that holders of discretionary power remain attentive to each individual's needs and circumstances. It also has a certain logical appeal, in preventing bureaucrats from transforming statutory discretions into de facto rules. We argue, however, that the principle has too often been seen as a hard-and-fast rule that brooks no exceptions. General rule [6.210] The orthodox position is that government and its officers are allowed to have policies regarding how they will exercise their discretionary functions in relation to individuals, so long as those policies are not entirely rigid. So-called blanket policies (or "bright line" rules) are forbidden. Similarly, individual administrative decision-makers are not allowed to take entirely rigid positions as to how they will exercise their statutory discretions. The AD(JR) adopts the common law's principle against self-fettering. It provides review for "improper" exercises of power, and defines "improper" as including a reference to: (f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case. … While the principle is usually formulated as applying to administrative decision making, it appears to be modelled on judicial or adjudicative functions, where the law naturally requires the decision-maker to give individual attention to the facts and circumstances of the parties. In contrast to the judicial model, however, the principle against fettering administrative discretionary power allows the adoption and promulgation of policies or "guidance statements", albeit on the proviso that these will never be entirely rigid.
4. In Minister for Home Affairs v G [2019] FCAFC 79 at [58] - [65], the Full Court of the Federal Court (Murphy, Moshinsky and O'Callaghan JJ) discussed the application of policy in administrative decision making and held: 58 It is established that an executive policy relating to the exercise of a statutory discretion must be consistent with the relevant statute in the sense that: it must allow the decision-maker to take into account relevant considerations; it must not require the decision-maker to take into account irrelevant considerations; and it must not serve a purpose foreign to the purpose for which the discretionary power was created: see [Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake (No 2)) at 640 per Brennan J; NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 at [24] per Gleeson CJ; [Cummeragunga Pty Ltd (in liq) v Aboriginal and Torres Strait Islander Commission [2004] FCA 1098] at [159] per Jacobson J. 59 An executive policy will also be inconsistent with the relevant statute if it seeks to preclude consideration of relevant arguments running counter to the policy that might reasonably be advanced in particular cases: Drake (No 2) at 640. Thus, an executive policy relating to the exercise of a statutory discretion must leave the decision-maker "free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the [decision-maker] will make in the circumstances of a given case": Drake (No 2) at 641. 60 However, as Brennan J stated in Drake (No 2) at 641, "[t]hat is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the [decision-maker] usually applies". In [Elias v Federal Commissioner of Taxation [2002] FCA 845] Hely J stated at [34]: "The Commissioner is entitled to adopt a policy to provide guidance as to the exercise of the discretion, provided the policy is consistent with the statute by which the discretion is conferred. Thus if the statute gives a discretion in general terms, the discretion cannot be truncated or confined by an inflexible policy that it shall only be exercised in a limited range of circumstances. A general policy as to how a discretion will 'normally' be exercised does not infringe these principles, so long as the applicant is able to put forward reasons why the policy should be changed, or should not be applied in the circumstances of the particular case. See Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640-641; Chumbairux v Minister for Immigration and Ethnic Affairs (1986) 74 ALR 480 at 492-493." This passage was approved by Jacobson J in Cummeragunga at [156]. 61 In [Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50] in the context of considering an executive policy that prioritised the processing of certain categories of visa applications, French CJ, Bell, Keane and Gordon JJ said at [54]: "Policy guidelines like the priorities policy promote values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike. In particular, policies or guidelines may help to promote consistency in 'high volume decision-making', such as the determination of applications for Subclass 202 visas. Thus in Drake v Minister for Immigration and Ethnic Affairs [No 2], Brennan J, as President of the Administrative Appeals Tribunal, said that '[n]ot only is it lawful for the Minister to form a guiding policy; its promulgation is desirable' because the adoption of a guiding policy serves, among other things, to assure the integrity of administrative decision-making by 'diminishing the importance of individual predilection' and 'the inconsistencies which might otherwise appear in a series of decisions'. The subjectivity of the evaluation by a decision-maker in a case such as the present highlights the importance of guidelines. The importance of avoiding individual **587 predilection and inconsistency in making choices between a large number of generally qualified candidates by the application of the open-textured criterion of 'compelling reasons for giving special consideration' is readily apparent." (Footnotes omitted.) Justice Gageler (at [62]) substantially agreed with the reasons of French CJ, Bell, Keane and Gordon JJ. 62 An executive policy that is inconsistent with the relevant statute in the sense described above is unlawful: see Drake (No 2) at 641. It is open to the Court to make a declaration to this effect, but whether it is appropriate to do so depends on an application of the general principles regarding the making of declarations, which are discussed in cases such as Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437-438.

Leave to appeal

1. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban) (at [84]), the Appeal Panel held that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed
2. Even if the appellant establishes that he may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains discretion whether to grant leave under s 80(2) of the NCAT Act. The appellant must demonstrate something more than the Tribunal was arguably wrong (Pholi v Wearne [2014] NSWCATAP 78 at [32]).

Relevant law

1. Under s 24(2)(d) of the Firearms Act, a licence may be revoked for "any other reason prescribed by the regulations." Under cl 20 of the Firearms Regulation 2017, the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
2. Accordingly, to revoke Mr Rial's firearms licence, it was necessary for the Commissioner (and the Tribunal, standing in the shoes of the decision-maker) to be satisfied that it was not in the public interest for Mr Rial to continue to hold the licence.
3. What is meant by the term "the public interest" has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court stated at 681: "The purpose of the reference to 'public interest' is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation."
4. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] the Appeal Panel said that: "The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system."
5. In Cusumano v Commissioner of Police [2001] NSWADT 50 at [23] Deputy President Hennessy stated: "There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act."
6. Section 3 of the Firearms Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community's interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at [27-28] Deputy President Hennessy said that in terms of public safety: "27…The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. 28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk."
7. That case dealt with whether the applicant was a "fit and proper person" to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at [130] - [134].
8. The question of risk is not, however, to be approached in an absolute or mechanistic way, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [64] - [66]; Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315 at [62]-[64]. The question is whether there is in all the circumstances a real and appreciable risk to the public: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 at [74]; Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124 at [58].

Mr Rial's submissions

1. Mr Rial sought to have the revocation decision set aside and his firearms licence returned and backdated to 2 October 2020. He also sought the return of his firearms and the removal of the Tribunal's decision dated 31 October 2022 from the Internet.
2. In his Notice of Appeal, Mr Rial set out his grounds of appeal to be:

• No mental health issues
• Not a danger to myself and other members of the public or to the peace
• There is a lot of false accusations made about me that there is no evidence of.

1. In circumstances where an appellant is self-represented, it is appropriate for the Appeal Panel to take a benevolent approach to identifying what if any, are the grounds of appeal. In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel stated at [13]: 13. It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, 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. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
2. Drawing from the notice of appeal and Mr Rial's oral and written submissions to the Appeal Panel, we understand the grounds of appeal to be as follows: 1. The Tribunal had placed undue weight on the requirement that he undertake the mental health risk assessment. He could not afford the mental health risk assessment and he had obtained a medical certificate to that effect as required; 2. The Tribunal had taken into account irrelevant considerations in considering how he had spent his money on restocking the farm and a trip to Canada rather than on the mental health risk assessment; 3. there was no evidence regarding any mental health issues which might lead the Tribunal to find that it was contrary to the public interest for him to hold a firearms licence; 4. The Tribunal had also denied him procedural fairness by failing to invite him to comment on not just whether he should be required to undertake the mental health risk assessment but whether the criteria in the assessment should apply to him.
3. Mr Rial stated there was no evidence to demonstrate that he had mental health issues or that he was a threat to public safety.
4. Of the five people involved in the incident on 2 October 2020, only the ambulance officers were trained to detect mental health issues. On the day the ambulance officer had commented, "I do not think he is a threat to himself or anybody else."
5. Mr Rial submitted that the police had told him to obtain a letter from the doctor regarding his mental health, which he had done. There was no permanent doctor in Tumbarumba and the letter had been drawn from the information in his medical records at the Roths Corner Medical Centre. He had told the doctor the reason for obtaining the letter.
6. Mr Rial had made enquiries about completing the mental health risk assessment in Wagga Wagga or Albury but had been told it could cost several thousand dollars and might require more than one visit.
7. In contending that there was no evidence regarding any mental health issues which might lead the Tribunal to find that it was contrary to the public interest for him to hold a firearms licence, Mr Rial submitted: 1. The comments he made on 2 October 2020 were off the cuff, made in the heat of the moment; 2. There had been no issues before or after the incident, as attested by the medical certificate he had provided; 3. There was no medical evidence that Mr Rial was suffering from mental health issues or evidence of self-harm; 4. No firearms were involved in the incident and there were no threats against anyone else; and 5. The evidence did not support the finding of potential for self-harm or any threat to the public.
8. He was not a threat to public safety. He had a tendency to sentimentality which led to emotional outbursts; however this was not evidence of any mental illness on his part.
9. He had lived and worked in the same community for over 68 years and had no record with the police in any form. As stated in the police record he was unknown to police.
10. He wished to have his firearms licence reinstated for farm purposes and so that he could regain possession of his firearms as his personal property, which he intended to hand down to his grandchildren at the appropriate time.

The Commissioner's response

1. The Commissioner submitted that the Tribunal affirmed the Commissioner's decision to revoke Mr Rial's firearms licence because it found it would be contrary to the public interest for him to hold a licence. That finding was based on the Tribunal's conclusion that, on the evidence before it, the potential for self-harm by the appellant was not a "minimal, fanciful or theoretical risk". That conclusion was based on the evidence, that following a domestic dispute the appellant said words to the effect of "I'm going to blow my head off".
2. The Commissioner submitted that Mr Rial had identified no question of law in his notice of appeal and so required leave to appeal. The Commissioner submitted that the appellant's notice of appeal and written submissions appeared to assert that the Tribunal was wrong to find, factually, that his potential for self-harm was not a minimal, fanciful or theoretical risk; and so the appellant simply disagreed with the factual findings made by the Tribunal by asserting that there was no risk of him engaging in self-harm or harm towards the public and he had "a democratic right" to firearms.
3. The Commissioner submitted that leave to appeal should be refused because the Tribunal's factual finding that potential for self-harm by the appellant was not a minimal, fanciful or theoretical risk, was not unreasonable or plainly unjust.
4. The Commissioner submitted that the finding was plainly open on the evidence before the Tribunal: 1. on the basis of the police event report which had recorded the details of the altercation between Mr Rial and his son; 2. the police body worn video footage which recorded the attendance of police and paramedics at Mr Rial's home for a welfare check on the day of the argument and that Rial had acknowledged that he had probably asked his son if he thought he was going to shoot himself with a firearm; 3. during the Tribunal's hearing, Mr Rial had agreed that he had said to his son "reckon I'm going to shoot myself… if I give you the bolts of the guns there's other ways of doing it if I want to do it" and he had not disputed the contents of the police body worn video footage; 4. two file notes written by firearms registry staff dated 13 January 2021 and 25 May 2022 were before the Tribunal which recorded that the appellant had been emotional during telephone conversations with them about the progress of his internal review, had begun to cry and had hung up. During the hearing, in response to the question "why are you getting upset all the time?" Mr Rial had replied that it was part of his nature, he was a sentimental person; 5. prior to deciding to revoke his firearms licence, the Firearms Registry had invited Mr Rial to undertake a mental health risk assessment by a psychiatrist or psychologist to assist the Firearms Registry to determine whether Mr Rial should remain in possession of his licence. The invitation included a detailed list of 12 questions about his mental health to be addressed during the mental health risk assessment. However Mr Rial did not avail himself of this opportunity and instead provided the medical certificate from the General Practitioner. The Commissioner submitted that the medical certificate was manifestly inadequate and did not address any of the legitimate concerns about Mr Rial's mental health following his threat of serious self-harm on 2 October 2020. The Commissioner submitted that there was no evidence, for example, that the author of the report was aware of Mr Rial's threat of self-harm and that he sought the return of his firearms licence.
5. The Commissioner submitted that, in light of those five reasons, it was open to the Tribunal to find that the potential for self-harm by Mr Rial was not a minimal, fanciful or theoretical risk. The Commissioner submitted that there was reliable and probative evidence, in the form of the event report and the body worn video footage, to justify a finding that the potential for self-harm by the appellant was not a minimal, fanciful or theoretical risk.
6. The Commissioner acknowledged that Mr Rial disagreed strongly with this finding and claimed that his comment about shooting himself was simply an off the cuff remark. However the Commissioner submitted that Mr Rial had not adduced adequate medical evidence to contradict the factual finding which was clearly open to the Tribunal that, in light of all the evidence before the Tribunal, his risk of self-harm was not minimal, fanciful or theoretical.
7. The Commissioner submitted that the well-established case law had been applied in an orthodox and conventional manner by the Tribunal. Given the inherently broad nature of the public interest and the overriding focus on public safety it required, the Commissioner submitted that it was open to the Tribunal, having found that there was a real risk of Mr Rial self-harming with a firearm, to conclude that it would not be in the public interest for him to currently hold a firearms licence: "the risk of a person self-harming with a firearm is plainly a matter of public interest since it poses a serious threat to the safety of the person and the broader public. Therefore the Tribunal's reasoning processes contains no legal error."
8. The Commissioner submitted that leave to appeal should be refused because Mr Rial was merely asserting that the decision was wrong and engaging in factual arguments.
9. The Commissioner further sought an order for costs on the basis that Mr Rial had been informed that his case was lacking in substance and was invited to withdraw his appeal.

Undue weight on psychological assessment - self-fettering of discretion - application of wrong principle of law - asking the wrong question

1. The Tribunal found Mr Rial's emotional state when speaking to the Firearms Registry and his emotional behaviour at the Tribunal hearing by interrupting, talking over and arguing with counsel to relate to his mental health and to bear heavily upon the exercise of the discretion. However, as noted by Mr Rial, there was no evidence that this behaviour was in fact related to his mental health.
2. The Tribunal conflated the appellant's tendency to emotional behaviour with a mental health issue with no basis for doing so. There was evidence of emotional behaviour, but not mental health issues; in fact the only medical evidence (the doctor's certificate and the opinion of the ambulance officer) supported Mr Rial's case that he was not a risk to himself or others.
3. The Tribunal then relied on Mr Rial's failure to have the mental health risk assessment completed by a psychiatrist or a psychologist and noted that the proforma document was quite specific and detailed in its requirements and criteria for mental health assessment. The Tribunal found the absence of a positive assessment in accordance with the proforma document to be decisive in considering that Mr Rial's circumstances were such that it would be contrary to the public interest for him to hold a firearms licence.
4. The requirement by the Commissioner to undertake a mental health risk assessment has arisen more than once before the Appeal Panel. In Commissioner of Police, NSW Police Force v Holmes [2021] NSWCATAP 202 at [3] a differently constituted Appeal Panel was of the view that the Commissioner had no power to impose a requirement to undertake a mental health risk assessment, although the Commissioner's appeal was allowed in that case on the basis that the Tribunal below had no jurisdiction to review the decision requiring the applicant to undertake a medical assessment.
5. At the hearing before us, the Commissioner agreed that there is no specific legislative requirement to obtain a mental health risk assessment in the current context.
6. There was no requirement in legislation or policy for Mr Rial to undertake the mental health risk assessment. The Tribunal found that it was his choice to spend his money on a trip to Canada and restocking his farm rather than obtaining the mental health risk assessment. Mr Rial noted that the trip had been pre-paid and the decision to restock the farm was not relevant to his belief that he could neither afford, nor required the mental health risk assessment. The Tribunal then drew a strongly adverse inference from Mr Rial's failure to obtain the mental health risk assessment in accordance with the instructions of the Firearms Registry, in spite of there being no actual requirement for him to do so. The Tribunal's reliance on the failure to undertake the assessment effectively elevated the requirements of the assessment to criteria which Mr Rial needed to meet in order to satisfy the Tribunal that he was not a risk to the public and so that it was in the public interest for him to hold a firearms licence. That failure, with the characterisation of Mr Rial's tendency to emotional displays as a mental health issue, then formed the basis for the decision to affirm the decision under review.
7. As a result, the Tribunal fettered the broad discretion given in reg 20 by elevating the proforma mental health risk assessment to a quasi-policy and then, on the basis that the criteria in the proforma had not been fulfilled, finding that the discretion should not be exercised in his favour, despite the only medical evidence being that of the GP to the effect that there was no record of mental illness.
8. The issue for the Tribunal was whether, standing in the shoes of the Commissioner, it was satisfied that it is not in the public interest for the licensee to continue to hold the licence. There was no obligation on Mr Rial to satisfy the Commissioner that it was in the public interest for him to hold a licence - it was merely for the Commissioner to be or not be so satisfied.
9. By fettering its broad discretion in relying on Mr Rial's failure to provide the mental health risk assessment to make the finding that the potential for self-harm was not a "minimal, fanciful or theoretical risk", the Tribunal applied a wrong principle of law and so made an error on a question of law.
10. Further, the Tribunal asked the wrong question. The Tribunal did not apply the requirement in reg 20 for the Commissioner to be satisfied that he is a risk to public safety; instead the Tribunal relied on the failure to provide the mental health risk assessment and, as a result, required Mr Rial to show that he was not a risk to public safety. In so doing, the Tribunal both misapplied the request to complete the mental health risk assessment and placed the onus on Mr Rial to prove a negative.
11. As a result of those findings, Mr Rial has established an error on a question of law and does not need to seek leave to appeal. Having established this ground of appeal, it is unnecessary for the Tribunal to consider the further grounds put forward.
12. The Commissioner sought costs on the basis that Mr Rial had been informed that his case was lacking in substance and was invited to withdraw his appeal. Mr Rial is the successful party in the appeal and the Commissioner has not demonstrated that any special circumstances exist to warrant the award of costs. There is no basis for the Commissioner's application for costs under s 60 of the NCAT Act.

orders 1. The appeal is allowed. 2. The decision under review is set aside. 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: 16 June 2023