1. The PPO made on 10 February 2014 was in what might be described as the standard terms of a personal protection order. Relevantly for current purposes, the order also provided: "by consent Mr Singh's firearms licence is not cancelled pursuant to section 43(3) DVPO Act.".
2. Section 57 of the DVPO Act provides that where a final protection order is made against a respondent who holds a firearms licence, the firearms licence is immediately cancelled by force of that section. However, in relation to final orders which are personal protection orders (as opposed to domestic violence orders), the Magistrates Court may order that the firearms licence is not cancelled under that section. Section 57 provides:
   1. Firearms and final orders

(1) This section applies if a final order is made in relation to a respondent who is the holder of a firearms licence.

Note 1 Firearms licence - see the dictionary.

Note 2 For the application of this section to consent orders, see s 43 (3).

(2) The firearms licence is cancelled by force of this section.

(3) However, the Magistrates Court may, on application when the final order is made, order that the firearms licence not be cancelled under this section if -

(a) the final order is a personal protection order; and

(b) the court is satisfied that the firearms licence should not be cancelled.

(4) The Magistrates Court may make a consent order that the firearms licence not be cancelled under this section only if the final order is a personal protection order.

(b) the seizure of any firearm or ammunition in the respondent's possession.

1. Section 43 of the DVPO Act, which provides that a protection order may be made with the consent of the parties, also sets out a mechanism by which the automatic consequence of cancellation of a firearms licence does not apply if the parties consent to the automatic consequence not flowing from the making of the order. Section 43 provides:
   1. Consent orders

(1) On application for a protection order, the Magistrates Court may make a protection order with the consent of the parties to the proceeding.

(a) whether or not the parties have attended, or any party has attended, before the Magistrates Court; and

(b) whether or not any ground for making the order has been made out; and

Note  Sections 84 and 85 apply to require the Magistrates Court to explain the order intended to be made under this section in certain circumstances. Section 84 deals with explaining orders if the respondent is before the court and s 85 deals with explaining orders if the aggrieved person is before the court.

(3) If an automatic consequence flows from the making of a kind of order and an order of that kind is made under this section, the automatic consequence flows from the making of the order unless -

(a) this Act allows a discretion for the automatic consequence not to flow from the making of an order of that kind; and

(b) the parties consent to the automatic consequence not flowing from the making of the order.

The parties to an application agree to the making of a final order. An automatic consequence of the order is that any firearms licence of the respondent is cancelled under s 57 (Firearms and final orders). That consequence automatically flows from the making of the final order. However, under s 57 (3) the Magistrates Court may, in certain circumstances (but not if the final order is a domestic violence order), order that the licence not be cancelled. If those circumstances apply and the parties agree that the firearms licence not be cancelled, the firearms licence would not be cancelled under s 57.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(4) However, this section does not allow the Magistrates Court to make a protection order -

(a) that may not otherwise be made under this Act; or

(b) for a period other than a period that the order may be made for (unless section 45 (Length of interim orders by consent) applies); or

Note Section 55 (3) limits the length of final orders made as consent orders.

1. Under the Firearms Act, the Registrar is given an administrative role in relation to the issue, suspension and cancellation of firearms licences. In relation to the cancellation of a firearms licence, section 81 of the Firearms Act imposes a duty on the Registrar to cancel an adult firearms licence in circumstances where the licensee is no longer eligible for the grant of such a licence, or where the Registrar is satisfied as to certain other matters, or for any other reason prescribed by regulation. Section 81(1) provides:
   1. Adult firearms licences - cancellation generally

(1) The Registrar must cancel an adult firearms licence -

(a) if, had the licensee been applying for the licence held, the Registrar would be required to refuse to issue the licence; or

Note For when the Registrar must refuse to issue an adult firearms licence, see s 58 and s 63 to s 70.

(b) if satisfied on reasonable grounds that the licensee -

(i) gave information that was (to the licensee's knowledge) false or misleading in a material particular in relation to the application for the licence; or

(ii) has contravened this Act, whether or not the licensee has been convicted of an offence for the contravention; or

Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act, s 104).

(iii) has contravened a condition of the licence; or

(c) if satisfied on reasonable grounds that the licensee is not suitable; or

Note For when an individual is or is not suitable, see s 17.

1. Section 58 of the Firearms Act provides that the Registrar must refuse to issue a firearms licence unless satisfied that the proposed licensee is "suitable". The question of "suitability" is dealt with in sections 17, 18 and 19 of the Firearms Act.
2. Section 17 applies where the Registrar is deciding an individual's suitability in relation to an application for, or cancellation of, a licence, and specifies that in making the decision the Registrar must consider whether any of the mandatory criteria under section 19 are satisfied in relation to the individual. If one or more criteria are satisfied the Registrar must decide the individual is not suitable. Section 17 provides:
   1. Assessing suitability of individuals

(1) This section applies if the Registrar is deciding an individual's suitability in relation to -

(a) an authorisation mentioned in section 39 (b) (Authorised instructors and club members); or

(d) whether the individual is a prohibited person under section 187 (Meaning of prohibited person for licensed firearms dealers).

Note The Registrar must or may decide an individual's suitability in relation to the following applications and licences:

• applications for adult firearms licences (see s 58), firearms dealer licences (see s 69), minors firearms licences (see s 88) and composite entity firearms licences (see s 104);
• cancellation of adult firearms licences (see s 81), minors firearms licences (see s 98) and composite entity firearms licences (see s 120).

(a) must consider any discretionary criteria under section 18 that apply to the individual; and

(i) consider whether any of the mandatory criteria under section 19 are satisfied in relation to the individual; and

(ii) if 1 or more criteria are satisfied - decide that the individual is not suitable.

1. Section 18 sets out the discretionary criteria. Section 19, which sets out the mandatory criteria, provides:
   1. Assessing suitability of individuals - mandatory criteria

(1) For section 17, the following are the mandatory criteria in relation to an individual:

(a) for an application for a licence other than a composite entity firearms licence - the Registrar believes on reasonable grounds that the individual may not personally exercise continuous and responsible control over a firearm because of the individual's way of living or domestic circumstances;

(b) within the 10 years before the day the Registrar decides the individual's suitability, the individual has been -

(i) subject to a protection order or corresponding order (other than an order that has been revoked or successfully appealed against); or

Note Successfully appealed against - see the dictionary.

(ii) subject to an order under this Act or a corresponding law that prohibits the person from possessing or using a firearm (other than an order that has been successfully appealed against); or

(iii) convicted or found guilty of a prescribed offence in the ACT or elsewhere;

(c) the individual is not suitable because of a reason prescribed by regulation.

1. The combined effect of sections 81, 17 and 19 of the Firearms Act is that the Registrar must cancel an adult firearms licence if a licensee is "not suitable" (s 81(1)(c)) because, "within the 10 years before the day the Registrar decides the individual's suitability", the individual "has been subject to a protection order" (s 19(1)(b)(i)), enlivening section 17(2)(b).

1. It was not disputed that the PPO in this case was properly made in exercise of the powers and procedures of the Magistrates Court under DVPO Act set out above.
2. Similarly, the parties agreed that the cancellation decision made by the Registrar conformed with the requirements of the Firearms Act.
3. The Applicant argued, however, that there was a clear conflict between the outcome achieved when applying the PPO and the provisions allowing non-cancellation under the DVPO Act, and the outcome achieved by applying the provisions mandating administrative cancellation by the Registrar under the Firearms Act. Under the DVPO Act, the Applicant's firearms licence is not cancelled by force of that Act, while under the Firearms Act the licence must be cancelled by the Registrar once the Registrar became aware of the making of the PPO.
4. The Applicant submitted that the only "rational and logical" way to resolve this conflict was to conclude that operative provisions of the Firearms Act had been impliedly repealed by the later enactment of the DVPO Act. The Applicant submitted that the broad intention of the legislature was that, in certain circumstances, the courts retained discretion to order that automatic cancellation of a firearms licence would not follow the making of the order, and that an interpretation consistent with that intention, such as implied repeal of the mandatory cancellation provision in the Firearms Act, should be adopted.
5. The Respondent submitted that, although on a broadbrush approach to the legislation there appeared to be inconsistency between the provisions of the DVPO Act and the provisions of the Firearms Act, on closer examination it was apparent that there was an, albeit small, area within which the two sets of provisions could concurrently operate. Accordingly, the Respondent argued that the provisions were not so inconsistent in practice that it was necessary to resort to the doctrine of implied repeal to make sense of the situation.
6. Further, the Respondent submitted that the complex and interwoven history of the two pieces of legislation made it difficult to assert with any certainty which Act should be considered to be the "later in time" for the purposes of implied repeal, or what should be considered to be the definitive intention of the legislature in enacting each piece of legislation. The Respondent submitted that, while there is a tension between the operation of the two Acts, there remained a limited field of operation, and the Tribunal must be careful not to stand in the shoes of the legislature when undertaking the task of interpreting legislation.

1. Section 139 of the Legislation Act 2001 (the "Legislation Act") provides that, in working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation. "Working out the meaning of an Act" is defined by section 138 of the Legislation Act:
   1. Meaning of working out the meaning of an Act - pt 14.2

(a) resolving an ambiguous or obscure provision of the Act; or

(b) confirming or displacing the apparent meaning of the Act; or

(c) finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or

(d) finding the meaning of the Act in any other case.

1. Reference should also be made to the Human Rights Act 2004 which establishes in section 30 an interpretive principle that, so far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights. Compulsory cancellation of firearms where protection orders have been made bears a relationship with the human right in section 11 of the Act: "Protection of the family and children". However, this interpretative principle does not assist resolution of the current case as the DVPO Act very clearly establishes a judicial discretion for the Magistrates Court and that provision does not have any apparent incompatibility with human rights.
2. The provisions of the Legislation Act do not exclude the operation of common law presumptions about statutory interpretation, which are preserved by section 137 of that Act. The doctrine of implied repeal is one aid to statutory interpretation which may assist in displacing the apparent meaning of an Act, or finding the meaning where the apparent meaning leads to a result which is manifestly absurd or unreasonable.
3. Pearce and Geddes at [7.10] comment that cases that are concerned with inconsistency between legislation usually talk in terms of the implied "repeal" of the competing legislation, which should probably be regarded as misleading as the impliedly repealed legislation continues on the statute book and would resume its full field of operation if the contradicting Act is formally repealed. The authors suggest that the "better language to use would be to say that the later Act displaces or supersedes the earlier". This concept of displacement is specifically included in s 138(b) of the Legislation Act (see [31] above), suggesting that the doctrine of implied repeal falls neatly within this section.
4. Counsel for the Applicant and for the Respondent referred the Tribunal to a number of judicial explanations of the doctrine of implied repeal, commencing with the seminal statements of the High Court in Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 7 per Griffith CJ:

"...where the provisions of a particular Act of Parliament dealing with a particular subject matter are wholly inconsistent with the provisions of an earlier Act dealing with the same subject matter, then the earlier Act is repealed by implication. It is immaterial whether both Acts are penal Acts or both refer to civil rights. The former must be taken to be repealed by implication. Another branch of the same proposition is this, that if the provisions are not wholly inconsistent, but may become inconsistent in their application to particular cases, then to that extent the provisions of the former Act are excepted or their operation is excluded with respect to cases falling within the provisions of the later Act."

and Barton J at 10 adopting the following statement from Hardcastle on Statutory Law:

"The court must be satisfied that the two enactments are so inconsistent or repugnant that they cannot stand together, before they can from the language of the later imply the repeal of an express prior enactment, ie, the repeal must, if not express, flow from necessary implication."

and concluding with the recent exposition by the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 at 571 per Gleeson CJ:

"The provisions .... are not repugnant, in the sense that they contain conflicting commands which cannot both be obeyed, or produce irreconcilable legal rights or obligations. They create two sources of power, by which a person in the position of the respondent may be exposed, by different processes, and in different circumstances, to similar practical consequences. There is nothing novel, or even particularly unusual, about that. It does not of itself mean that only one source of power is available. If, however, by reason of the apparent exhaustiveness with which one provision, or group of provisions, dealt with the position of a person such as the respondent, there were an incompatibility of a kind that required a conclusion that only one provision or group of provisions was intended to apply, then that would be a reason for accepting the respondent's contention. Again, if one provision, or group of provisions, were directed with particularity to the case of a person such as the respondent, and the other were merely of general application, the same could be said. As explained by Heydon and Crennan JJ, and also by Gummow and Hayne JJ, neither proposition can be made good when regard is had to the legislative history and context. In the result, the respondent's contention amounts to an assertion; a statement of an outcome that would be supportive of his freedom to remain in Australia, and in that sense protective of his interests, but without a convincing argument of statutory construction which sustains that outcome. Therefore, it fails."

1. It is clear that the doctrine of implied repeal may be called upon where there is a conflict between the two provisions which is unable to be resolved by adopting an interpretation which allows both to operate concurrently. When one is interpreting legislation, the purposive approach is paramount. There are therefore two key questions to be resolved in this case, first is there a complete conflict between the two pieces of legislation which cannot be dealt with through interpretation, and secondly what was the purpose or intention of the legislature. These questions are interconnected.
2. As a starting point to interpretation, one should consider the words of each provision. The wording of both the DVPO Act and the Firearms Act is clear. There is no conflict between the words used in these provisions. If the words used in the provisions are accepted to be the first indicator of the intention of the legislature, then a consideration of those words, and the legislative context of the Act in which each set of provisions is found, would suggest that the legislature intended each provision to operate as it is worded. There is nothing in the secondary material such as the explanatory statements or second reading speeches to each Act which provides a basis to depart from the apparent intention of the legislature, which is that both sets of provisions operate concurrently.
3. The Applicant submitted that, if full effect was given to section 81 of the Firearms Act in the current circumstances, then this would render sections 43 and 57 of the DVPO "entirely redundant". It was submitted that clearly the legislature had intended those sections of the DVPO Act to have some substantive effect, and this would require an interpretation of the relevant provisions of the Firearms Act to have been impliedly repealed by the later passage of the DVPO Act.
4. The Respondent argued that the relevant provisions were capable of coexisting, and this was demonstrated throughout the history of the legislation which had at all times recognised the separate judicial and administrative roles of the Magistrates Court and the Registrar of Firearms, respectively, in relation to cancellation of a firearms licence. The Respondent submitted that the provisions were capable of operating alongside each other, and there was no evidence of an intention by the legislature to repeal the relevant provisions of the Firearms Act.
5. Both parties invited the Tribunal to consider the history of the legislation in determining both the intention of the legislature, and the availability of the doctrine of implied repeal.

1. If one takes as a starting point the legislation in place prior to the Port Arthur massacre, one must consider the Weapons Act 1991 (the "Weapons Act"), the Magistrates Court Act 1930 (the "MC Act") and the Domestic Violence Act 1986 (the "DV Act"). Under the Weapons Act at that time, a firearms licence could not be granted if a domestic violence order under the DV Act, or a restraining order under the MC Act, was in force. If a domestic violence order was made against a respondent who held such a licence, the licence was cancelled under the DV Act. If a restraining order was made against a respondent who held such a licence, the licence was cancelled under the MC Act unless the Court ordered otherwise. Separate to both of these routes to cancellation, it was at all times open for a firearms licence to be cancelled administratively in the discretion of the Registrar.

1. In 1996, as a consequence of the Port Arthur massacre, a significant overhaul of firearms legislation took place. Legislation was enacted to put into effect minimum requirements agreed between the Police Ministers of the States and Territories. In the ACT, the Firearms Act provided that a firearms licence could not be granted to an applicant who had in the preceding 10 years been the respondent to a restraining order under the MC Act, or a domestic violence order under the DV Act. The DV Act continued to provide that the making of a domestic violence order would cancel an existing firearms licence, and additionally section 41 of the Firearms Act also prescribed that a firearms licence was cancelled if a domestic violence order was made. The MC Act continued to provide that the making of a restraining order would itself cancel a firearms licence unless the Court ordered otherwise, and the Firearms Act provided that a firearms licence "may" be cancelled by the Registrar for any reason for which the licensee would be required to be refused a licence of the same kind.
2. In other words, where the respondent to a restraining order containing an order for non-cancellation held a firearms licence, that licence would remain in force until the Registrar in the exercise of his or her discretion made a decision to cancel that licence, or the licence expired, whichever was the earlier.

1. In 2001, the DV Act and Part X of the MC Act were consolidated into a single piece of legislation, the Protection Orders Act 2001 (the "PO Act**"**). This consolidation maintained the same approach as had existed under the earlier legislation. The making of a final order had the effect, under section 38 of the PO Act, of cancelling an existing firearms licence. However, in relation to a final order which was a personal protection order (rather than a domestic violence order), the Magistrates Court was empowered to order that the firearms licence not be cancelled under section 38 of the PO Act. Consequential amendments to the Firearms Act updated terminology, and amended section 41(1) to remove the provision for cancellation upon the making of a domestic violence order. A note to the subsection explained that the licence was automatically cancelled under section 38 of the PO Act. No change was made to the legislation in relation to administrative cancellation by the Registrar, which remained discretionary.
2. In practical terms, the respondent to a restraining order containing an order for non-cancellation would have their licence remain in force until the Registrar made a discretionary decision to cancel the licence, or the licence expired, whichever was earlier.

1. In 2008 both the Firearms Act and the PO Act underwent change. The Firearms Act was significantly redrafted to adopt the current regime of "mandatory" and "discretionary" criteria for licence ineligibility that has been outlined above at paragraphs [20] to [24] above.
2. The significant change from the Registrar's discretionary power to cancel a firearms licence after becoming aware of the making of a restraining order, to a mandatory obligation and power to do so, was not the subject of any comment in the explanatory statement to the Firearms Amendment Bill 2008. Nor did the explanatory statement touch upon any perceived inconsistency between the new section 41 and existing provisions for non-cancellation contained in the PO Act. The second reading speech and the debates suggest that the amendments to the Firearms Act were intended to implement recommendations of the Firearms Consultative Committee and to deal with certain anomalies in the legislation. However no indication was given either in speeches, debates or explanatory statement as to whether the move to mandatory administrative cancellation upon the making of a PPO was one of those recommendations or perceived anomalies.
3. The Firearms Amendment Bill 2008 was presented to the Legislative Assembly on 10 April 2008, passed on 3 July 2008 and took effect on 16 July 2008. While consequential amendments were made to the PO Act at that time, these did not include any changes to the non-cancellation provisions.
4. If there is an operative inconsistency between the Firearms Act and the DVPO Act, it was first created in 2008 by these amendments to the Firearms Act.
5. Later in 2008, the PO Act was entirely repealed and re-enacted as the DVPO Act. The DVPO Act was presented on 7 August 2008, passed on 26 August 2008 and took effect on 30 March 2009. The provisions in relation to a final protection order effecting cancellation of existing firearms licence were renumbered from section 38 to section 57 but were otherwise unchanged in their terms. The explanatory statement to the DVPO Act provided no suggestion that the pre-existing mandatory cancellation provisions of the Firearms Act would no longer be operative. No consequential amendments were made to the Firearms Act to deal with the operative inconsistency which has been asserted in this case

1. We have set out above at paragraphs [18] to [24] the current provisions of the DVPO Act and Firearms Act. The interaction of the relevant provisions, and submissions of the parties as to the apparent conflict, has already been discussed at paragraphs [27] to [30].
2. There is no conflict or inconsistency between the express terms of the two sets of provisions - section 57 of the DVPO Act only permits the Magistrates Court to make an order avoiding cancellation of the firearms licence under that section. It is silent on the separate administrative power and obligation of the Registrar to take action under the Firearms Act. The PPO issued by the Magistrates Court does not purport to restrain the Registrar from the performance of his or her statutory functions and duties; no power to make an order in such terms is provided under the DVPO Act.
3. The asserted conflict is a perceived conflict, or absurdity, of consequences: it is submitted that it makes no sense for the Magistrates Court to be given a clear power to make an order for non-cancellation of a firearms licence, in circumstances where the Registrar, when apprised of the making of the PPO possibly only days later, has no option but to cancel it.
4. The most recent piece of legislation can be considered to be the DVPO Act, which was enacted in late 2008. However, when one examines the history of the legislation, it would seem that if sections 57 of the DVPO Act and section 81 of the Firearms Act are so inconsistent in their operation that implied repeal (displacement) must be drawn on, that inconsistency first arose as a consequence of the amendments of the Firearms Act in 2008.
5. The Applicant submitted that an examination of the history of the two pieces of legislation demonstrated an intention by the legislature to consistently enact provisions empowering the Magistrates Court with discretion to order that automatic suspension or cancellation of a firearms licence not follow the making of an order. In the Tribunal's view, that submission puts the effect of a non-cancellation order a little too high. Such an order has never been able to be expressed in such broad terms as to prevent administrative cancellation under the Firearms Act. A non-cancellation order has only ever been able to prevent the consequence of automatic cancellation occurring under the DVPO Act (and its prior incarnations).
6. The Applicant further submitted that the provisions of the Firearms Act should be interpreted as being subject to any non-cancellation order made under section 57 of the DVPO Act. The Tribunal does not consider that this interpretative step is necessary, as the two pieces of legislation can operate concurrently, albeit with a very small area of operation. The Magistrates Court order is operative in the interval between the making of the PPO and when the Registrar, being appraised of the existence of the PPO, cancels the firearm licence without exercise of discretion.

1. The Tribunal is satisfied that, as the legislation is currently worded, the Magistrates Court is empowered to make a non-cancellation order which is of effect only until, in practical terms, the Registrar becomes aware of the making of the PPO and effects mandatory cancellation under the Firearms Act. In the current case, that window of operation was some seven weeks.
2. The operation of the legislation in this particular way may be the result of an oversight in 2008, but there has been significant legislative change in these provisions over the years. The Tribunal is unable to identify any evidence of an intention on the part of the legislature that either set of provisions should prevail over the other, either in the words of the provisions, the broader context of each statute, or in the secondary material such as the explanatory statement or second reading speeches and debates.
3. The Tribunal does not consider that there is such an inconsistency in the operation of the two Acts that the Tribunal should apply the doctrine of implied repeal by displacement under s 138(b) of the Legislation Act. Further the Tribunal has considered whether applying the apparent meaning of the provisions of the Firearms Act leads to a outcome which is manifestly absurd or unreasonable (section 138(c), Legislation Act), and is not so satisfied.
4. It follows that the Tribunal is satisfied that provisions of the Firearms Act apply as they are written in the circumstances of the Applicant's case, and that the Registrar was obliged to cancel the Applicant's firearms licence. The orders the Tribunal will make as a consequence of this finding is an order that the decision under review is confirmed.
5. The Tribunal considers that there is a potential that parties to personal protection orders may be misled as to the practical consequences of the apparent discretion of the Magistrates Court in sections 43 and 57 of the DVPO Act to authorise non-cancellation of firearm licences. The Tribunal recommends that legislative action be taken to clarify the relationship between the DVPO Act and the Firearms Act where a PPO is made against the holder of a firearms licence.

[1] There had previously been an interim order in place between the parties, and there was also some inaccuracy in the terms of the final order originally issued by the Magistrates Court leading to the need for the order to be re-issued, however these circumstances are of no particular relevance to the interlocutory question raised in this matter.