ADMINISTRATIVE LAW - Statutory construction - inconsistent legislation - implied repeal - cancellation of firearms licence

ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 79(3), 81, 82, 83, 83(2)

Domestic Violence and Protection Orders Act 2008 (ACT) ss 6, 7, 43, 43(3), 57

Domestic Violence and Protection Orders Act 2001 (ACT)

Firearms Act 1996 (ACT) ss 5, 16F, 17, 17(2), 19, 19(1), 51, 58, 81, 260A, sch 4, Dictionary

Legislation Act 2001 (ACT) ss 127(1), 138, 138(c), 139(1), 140, 142(1)

Magistrates Court Act 1930 (ACT)

Domestic Violence and Protection Orders Bill 2008 (ACT)

Firearms Amendment Bill 2008 (ACT)

Aziz v Saliba [2013] ACTSC 2

Commissioner of Police v Eaton [2013] HCA 2; (2013) 252 CLR 1

Eastman v The Honourable Justice Anthony James Besanko and Attorney-General for the Australian Capital Territory [2010] ACTCA 15

Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130

Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1

Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207

Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566

Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1

Singh v Registrar of Firearms (Administrative Review) [2014] ACAT 63

Case Title: Singh v Registrar of Firearms (Administrative Review)

Citation: [2014] ACAT 63

1. By consent and without admissions, on 10 February 2014, the Magistrates Court made a final personal protection order against the appellant under the Domestic Violence and Protection Orders Act 2008 (ACT) (DPVO Act). Pursuant to s 57 of the DPVO Act, the Court used a discretionary power to order that the appellant's firearms licence not be cancelled as a consequence of the making of the protection order. Nevertheless, on 27 March 2014, under the mandatory requirements of s 81 of the Firearms Act 1996 (ACT), the Registrar of Firearms cancelled the appellant's firearms licence because a protection order had been made.

2. Pursuant to s 260A and sch 4, item 12 of the Firearms Act, the ACT Civil and Administrative Tribunal (the Tribunal) is empowered to review the Registrar's decision. The appellant challenged the Registrar's decision in the Tribunal, arguing that the legislative provisions of the Firearms Act were inconsistent with those of the DVPO Act and led to an outcome that was manifestly absurd or unreasonable.

3. The Tribunal decided that the Acts were not inconsistent, the relevant provisions of the Firearms Act did apply and the Registrar's decision should be confirmed: Singh v Registrar of Firearms (Administrative Review) [2014] ACAT 63.

4. The appellant appealed. Pursuant to s 83(2) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act), the matter was removed to this Court.

5. The Tribunal has an internal appeal mechanism: s 79(3) of the ACAT Act. Appeals are considered by "an appeal tribunal": s 81 of the ACAT Act. Appeals may be considered, as the tribunal decides, either "as a new application" or "as a review of all or part of the original decision": s 82 of the ACAT Act. In effect, this provision enables an appeal to be heard "de novo" or by way of "rehearing": Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207 at [13]. Such an appeal may be removed into this Court under s 83 of the ACAT Act.

6. A matter that has been removed to this Court under s 83 of the ACAT Act is not an appeal to this Court. As Refshauge J observed in Legal Practitioner v Council of the Law Society of the ACT at [41]:

...what is removed is the appeal. It [is] not an appeal to this Court under provisions such as ss 84 or 86 of the ACAT Act. It [is] simply the replacement of one body (the appeal tribunal in the ACAT) with another (this Court) to decide the appeal.

Consequently, the Court sits as if it was an appeal tribunal constituted under the ACAT Act. It has the powers of such an appeal tribunal.

7. The application raises the following grounds of appeal:

(a) The Tribunal erred in finding that ss 81 and 19 of the Firearms Act applied so as to mandate the cancellation of the appellant's firearms licence, despite the order made by the Magistrates Court on 10 February 2014.

(b) The Tribunal erred in finding that ss 43 and 57 of the DVPO Act and ss 81 and 19 of the Firearms Act were not inconsistent in the circumstances of the case.

(c) Further, and in the alternative, the Tribunal erred in finding that the operation of ss 43 and 57 of the DVPO Act and ss 81 and 19 of the Firearms Act did not lead to an outcome that was manifestly absurd or unreasonable within the meaning of s 138(c) of the Legislation Act 2001 (ACT).

(a) Did the Tribunal give the Acts a manifestly absurd or unreasonable construction within the meaning of s 138(c) of the Legislation Act?

(b) In the circumstances of the case, did the DVPO Act impliedly repeal the relevant provisions of the Firearms Act because the DVPO Act is inconsistent with those provisions and it was enacted later in time?

9. At the hearing of the appeal, a further issue was raised: whether the expression "automatic consequence" in s 43(3) of the DVPO Act extends beyond the "automatic consequence" of licence cancellation under the DVPO Act to the "automatic consequence" of cancellation under s 81 of the Firearms Act. If so, the effect would be that a non-cancellation order made under s 57 of the DVPO Act would nullify a cancellation made pursuant to s 81 of the Firearms Act. However, as this matter was neither argued before the Tribunal nor decided by the Tribunal, it is not an appropriate matter for consideration on the appeal.

10. The DVPO Act refers to three types of orders: domestic violence orders (restraining domestic violence conduct in relation to an aggrieved person), personal protection orders that are workplace orders (restraining personal violence conduct in relation to the workplace) and personal protection orders that are other than workplace orders (restraining personal violence conduct in relation to an aggrieved person).

11. Section 6 of the DVPO Act addresses the objects of the Act. It provides:

(a) to prevent violence between family members and others who are in a domestic relationship, recognising that domestic violence is a particular form of interpersonal violence that needs a greater level of protective response; and

(b) to facilitate the safety and protection of people who fear or experience violence by -

(i) providing a legally enforceable mechanism to prevent violent conduct; and

(ii) allowing for the resolution of conflict without the need to resort to adjudication.

12. Section 7 addresses the principles for making protection orders. It provides:

(1) In deciding an application for a protection order, the paramount consideration is -

(a) for a domestic violence order - the need to ensure that the aggrieved person, and any child at risk of exposure to domestic violence, is protected from domestic violence; and

(b) for a personal protection order (other than a workplace order) - the need to ensure that the aggrieved person is protected from personal violence; and

(c) for a workplace order - the need to ensure that employees and other people at the workplace are protected from personal violence at the workplace.

(2) If a protection order is to be made on an application under this Act, it must be the protection order that is least restrictive of the personal rights and liberties of the respondent as possible that still achieves the objects of the Act and gives effect to subsection (1)

(a) When compared to other types of interpersonal violence that call for protection, it is considered that domestic violence "needs a greater level of protective response".

(b) The DVPO Act is designed to "[allow] for the resolution of conflict without the need to resort to adjudication".

(c) Where a protection order is to be made, the order should be formulated to be the "least restrictive of the personal rights and liberties of the respondent as possible" while still providing protection for the intended beneficiary.

These matters may inform a purposive approach to the construction of the provisions of the DVPO Act that are important to this appeal.

14. Section 43 of the DVPO Act concerns the making of a protection order by consent. It provides:

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

(2) The order may be made -

(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

(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 the discretion of 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.

Example

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 s57.

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 appears (see Legislation Act, s 126 and 132).

15. As indicated by the above example, s 57 of the DPVO Act creates the "automatic consequence" that, where a final protection order is made against the holder of firearms licence, the licence is cancelled. However, it also enables the Magistrates Court, in its discretion, to make a non-cancellation order. Section 57 relevantly provides:

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

(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.

16. In summary, if the Magistrates Court makes a personal protection order by consent, the parties also consent to the Court making an associated non-cancellation order, and the Court is affirmatively satisfied that the firearms licence should not be cancelled, then the Court may, in its discretion, make a non-cancellation order attaching to the respondent's current firearms licence. The DVPO Act does not suggest that a non-cancellation order is limited in purpose or duration (other than by the duration of the current licence), or is subject to administrative alteration. Consistent with the approach that domestic violence "needs a greater level of protective response", where the Magistrates Court makes a final domestic violence order, it is not empowered to make a non-cancellation order.

The Firearms Act

17. Section 5 of the Firearms Act sets out the principles and objects of that Act. It relevantly provides:

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

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

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

(b) to establish an integrated licensing and registration scheme for all firearms;

(c) to require each person who possesses or uses a firearm under the authority of a licence to establish a genuine reason for possessing or using the firearm;

(d) to provide strict requirements that must be satisfied in relation to the licensing of firearms and the acquisition and sales of firearms;

18. It is apparent that, whereas the DVPO Act is directed at the protection of individuals and is concerned to balance the need to protect victims with the need to uphold the personal rights and liberties of respondents and to promote conciliation, the Firearms Act focuses on public safety (where necessary, at the expense of individual entitlement), and takes a strict approach to the licensing of firearms.

19. Section 81 of the Firearms Act requires the Registrar to cancel a firearms licence in circumstances where the licensee is no longer eligible to be granted such a licence. It provides:

(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 2 A licence is automatically cancelled under the Domestic Violence and Protection Orders Act 2008, s 57 (Firearms and final orders) if the Magistrates Court makes a final protection order unless the court orders otherwise. Under that section, the Magistrates Court may also order seizure of the licence, firearms and ammunition.

20. Regrettably, although the note to s 81 acknowledges that a Court may make a non-cancellation order, the provision gives no express guidance as to whether s 81 captures licences that are the subject of a non-cancellation order.

21. Section 58 of the Firearms Act provides that the Registrar must refuse to issue a firearms licence unless satisfied that the applicant for the licence is "suitable". Section 17 of the Firearms Act outlines the criteria that the Registrar must consider in determining the suitability of a licence applicant. Section 17(2) of the Firearms Act provides that, in making a decision about suitability, the Registrar:

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

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

Section 19(1) sets out the mandatory criteria for s 17 and includes the criterion:

(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);

Pursuant to the Dictionary to the Firearms Act, "protection order" is given the same meaning as that under the DVPO Act. The final personal protection order made against the appellant (by consent) on 10 February 2014 in the Magistrates Court falls within the definition.

22. As the Tribunal found, the combined effect of these provisions is that the Registrar must cancel an adult firearms licence if a licensee is "not suitable". A licensee is deemed to be unsuitable if, "within the 10 years before the day the registrar decides the individual's suitability", the individual has been subject to a protection order.

23. As a consequence of the Port Arthur massacre, in 1996 there was a significant review of firearms legislation. As a result, the Firearms Act provided that a firearms licence could not be granted to an applicant who, in the preceding 10 years, had been a respondent to a restraining order or domestic violence order. The Domestic Violence Act 1986 (ACT) provided that the making of a domestic violence order cancelled an existing firearms licence. Section 41 of the Firearms Act also provided that a firearms licence was cancelled if a domestic violence order was made. Restraining orders were treated differently. If a restraining order was made under the Magistrates Court Act 1930 (ACT), then the firearms licence was automatically cancelled, but the Court, in its discretion, could order otherwise. Under the Firearms Act, the Registrar also had the discretion to cancel a firearms licence on the basis that the licensee would be required to be refused the licence of the same kind.

24. In 2001, the relevant provisions of the Domestic Violence Act and the Magistrates Court Act were consolidated into the Protection Orders Act 2001 (ACT) (renamed the Domestic Violence and Protection Orders Act 2001 (ACT) in 2005) and personal protection orders replaced restraining orders. The Magistrates Court retained the power to order that a firearms licence not be cancelled when the final order made was a personal protection order (as opposed to a domestic violence order). The Registrar also retained the discretion to cancel a licence.

25. Consequently, until 2008 there was a legislative tension between the discretionary power of the Magistrates Court to make a non-cancellation order and the discretionary power of the Registrar to cancel a licence. There is no information before the Court as to how this tension was resolved, either at law or in practice. Presumably, at a practical level, the Registrar afforded a high level of respect to the manner in which the Magistrates Court had exercised its discretion.

26. In 2008, the Firearms Act was significantly amended; the Registrar's discretionary power to cancel a firearms licence because of a personal protection order became a mandatory obligation to do so. At the same time s 16F (the precursor to s 51 of Firearms Act) was inserted. The explanatory statement presented to the legislature by the Minister for Police and Emergency Services disclosed that it had:

...been inserted...to remove any doubt about the procedure for renewals. All renewals of licence are treated as fresh applications; therefore the 28-day waiting period...applies to renewals as well as first time applications.

Prior to the insertion of s 16F into the Firearms Act, renewals may have been treated as fresh applications. Nevertheless, as the explanatory statement reveals, some ambiguity remained.

27. Later in 2008, the Domestic Violence and Protection Orders Act 2001 was repealed and re-enacted as the DVPO Act (the Act that is the subject of the appeal), which took effect on 30 March 2009. The new Act made no substantial change to the relevant provisions. The Registrar maintained the mandatory obligation to cancel a licence while the Magistrate's Court had the discretionary power to make a non-cancellation order.

28. The first contention raised by the appeal is that the Tribunal gave the Acts a manifestly absurd or unreasonable construction within the meaning of s 138(c) of the Legislation Act.

29. The contention is unsupportable because it assumes that s 138(c) extends beyond the construction of an Act (when that Act is considered in isolation), and also deals with the exercise of reconciling two internally clear Acts that conflict with each other.

30. Section 139(1) of the Legislation Act contains the uncontroversial key principle that legislation should be given a purposive interpretation. It provides:

(1) 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.

I note that purpose is to be divined by reference to the Act in question, i.e. the Act that is being construed.

31. Section 140 of the Legislation Act contains another key principle: "[i]n working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole". "Working out the meaning of an Act" is defined by s 138 of the Legislation Act as follows:

(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.

This provision applies in the context that a purposive and internally consistent construction should be sought.

32. The purposes of the DVPO Act, relevant to the present circumstances are clear: see [11] - [13] above. The apparent meaning of s 57 of the DVPO Act (which confers the discretion to make a non-cancellation order) is both consistent with those purposes and consistent with the statutory context. The purposes of the Firearms Act are also clear: see [17] - [18] above.

33. The apparent meaning of s 81 of the Firearms Act (which mandates the cancellation of a firearms licence) is both consistent with those purposes and consistent with the statutory context. In Eastman v The Honourable Justice Anthony James Besanko and Attorney-General for the Australian Capital Territory [2010] ACTCA 15 at [88] Dowsett J, relying on the Shorter Oxford Dictionary (6th ed, 2007), opined that:

...the word "absurd"...mean[s] "(o)ut of harmony with reason or propriety; incongruous, inappropriate; unreasonable; ridiculous, silly". The word "unreasonable" means "(n)ot endowed with reason; irrational ... . Not based on or acting in accordance with reason or good sense".

Neither Act can be described as such. Neither Act is internally absurd or unreasonable; any absurdity or unreasonableness arises from the tension between the Acts.

34. As 138(c) does not assist to resolve the tension between s 57 of the DVPO Act and s 81 of the Firearms Act it is necessary to consider whether the tension between the provisions is an inconsistency such that the later Act, the DVPO Act, has impliedly repealed s 81 to the extent of the inconsistency.

52. 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.

...

55. ...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).

56. ...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.

57. 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 wind of operation was some seven weeks.

...

59. 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....

36. In Commissioner of Police v Eaton [2013] HCA 2; (2013) 252 CLR 1 at [98], Gageler J referred to the common law principle of construction that requires:

....that statutory texts enacted by the same legislature are to be construed so far as possible to operate in harmony and not in conflict. That principle of harmonious construction applies to the construction of provisions within different statutes of the same legislature to create "a very strong presumption that the ... legislature did not intend to contradict itself, but intended that both ... should operate".

(Footnotes omitted)

37. However, where there is an inconsistency between the provisions of two statutes, the latter enactment will be taken to have impliedly repealed the earlier to the extent of the operative inconsistency. In Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 7 Griffiths CJ said:

...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...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.

At 10 Barton J adopted 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 implied the repeal of an express prior enactment, i.e., the repeal must, if not express, flow from necessary implication.

38. As was observed by Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 (Nystrom) at [48]:

The doctrine [of implied repeal as articulated in Goodwin v Phillips] requires that actual contrariety be clearly apparent and that the later of the two provisions be not capable of sensible operation if the earlier provision still stands.

(Footnotes omitted)

It is not enough that the provisions of two statutes simply appear to be inconsistent in word. They must be inconsistent in operation.

39. Courts must be cautious in their approach to finding an implied repeal. Gaudron J observed in Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1 at 16-17 that:

It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other.

(Citations omitted)

40. In Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 Gleeson CJ agreed that a cautious approach must be taken. At [4] his Honour said:

...[it is] a problem that arises only because the legislature did not state an intention either that the two statutory regimes should both apply in such a case, or that the second regime should apply to the exclusion of the first. The legislature may, by necessary implication, manifest an intention of the latter kind, although partial repeal of an earlier statute by a later statute will only be inferred on "very strong grounds"

(Footnotes omitted)

This Court has heeded the caution, observing "...that an implied repeal should not lightly be concluded by the courts as the response to inconsistency in statutory provisions": Aziz v Saliba [2013] ACTSC 2 at [89] per Refshauge J.

41. The authorities make it clear that a court must endeavour to give effect to the intention of the legislature. Recourse to repeal by implication "should not lightly be concluded" and only then where there are "very strong grounds".

42. The debate that accompanied the passage of the Firearms Amendment Bill 2008 (the amending legislation to the Firearms Act) demonstrates that the legislature intended to alter the grounds and procedure for the cancellation of a firearms licence. In debate, Dr Deb Foskey, noted the change in procedure, saying:

I am aware that there are firearms enthusiasts who feel that the provisions [the precursor suitability provisions] are too stringent and could result in people having their weapons taken off them, for reasons that are not logically connected with their holding a firearms licence. I have some sympathy with these concerns. By way of hypothetical example, it seems unfair that someone who is a target pistol enthusiast and who perhaps stores their guns in an armoury at a firing range should automatically lose their licence if they had 10 years ago been subjected to an interim protection order and recently had their drivers licence suspended. But that is the automatic effect of [the precursor section].

(Australian Capital Territory, Hansard, Legislative Assembly, 3 July 2008, 2754 (Dr Deb Foskey).

The accuracy of this observation is compromised by the fact that the relevant section (then s 41, but now s 81 of the Firearms Act) was and is accompanied by a "Note" which provided (and still provides) that "[a] licence is automatically cancelled under the Domestic Violence and Protection Orders Act...if the Magistrates Court makes a final protection order unless the court orders otherwise."

43. Notes are not taken to be part of Acts: s 127(1) of the Legislation Act. However, material that does not form part of an Act may be considered in working out the meaning of the Act: s 142(1) of the Legislation Act. As the "Note" is not part of the Act, its purpose must be to draw attention to the provision in the DVPO Act. This lends weight to the respondent's submission that the legislature intended to alter "the past inter-relationship between the two Acts".

44. The debate that accompanied the passage of the Domestic Violence and Protection Orders Bill 2008 (the Act that is the subject of this appeal) should also be considered. Commenting on the effect that a domestic violence or personal protection order would have upon a respondent to such an order, the lead Opposition speaker on the Bill, Mr Bill Stefaniak, observed:

If a respondent holds a firearms licence, the licence is suspended and the firearms and ammunition seized and detained for the period of an interim emergency order or cancelled and the firearms and ammunition seized in the case of a final order. There is some flexibility available to the court in the case of personal protection orders.

(Australian Capital Territory, Hansard, Legislative Assembly, 26 August 2008, 3706 (Mr Bill Stefaniak).

The "flexibility" is that, with respect to personal protection orders, the Magistrates Court may order that a respondent's firearms licence not be cancelled. The above observation was not the subject of adverse comment by the Attorney-General in his closing remarks on the debate of the Bill.

45. The respondent submitted that any apparent inconsistency between the provisions was similar to that in Nystrom. In that case, the Minister for Immigration was found to have two distinct (discretionary) sources of power to effect the removal of a person from Australia.

46. The comparison does not hold for this case. There are several significant distinctions. First, the two powers in this case are to be exercised by two different persons. Second, the powers are contained in separate statutes. Third, the powers arise for exercise in the same situation; upon the imposition of a protection order. Finally, the powers are different in nature; the Magistrates Court has the discretionary power to order that a firearms licence not be cancelled in certain circumstances. The Registrar holds no such discretion with respect to the cancellation of the licence. These distinctions undermine any reliance that the respondent places upon Nystrom.

47. The Tribunal found at [56] that s 57 of the DVPO Act could operate concurrently with s 81 of the Firearms Act, "...albeit with a very small area of operation...the interval between the making of the PPO [personal protection order] and when the Registrar...cancels the firearm licence..."

48. The respondent submitted, that even the small window created as a practical consequence of the administrative delay between the making of a non-cancellation order and the Registrar's cancellation of a licence, was useful. For example, it enabled a licensee to "put their firearms affairs in order" by disposing of relevant firearms.

49. There are several difficulties with this approach and other submissions that the Acts are not inconsistent.

50. First, it could not have been the purpose of the non-cancellation discretion to enable a licensee to "put their firearms affairs in order". The Magistrates Court is empowered to make a non-cancellation order that impliedly protects a licence from automatic cancellation for the whole of the remaining term of the licence. The non-cancellation power does not purport to be a power to stay cancellation for a limited period and for a limited purpose.

51. Second, the Tribunal found that the provisions of the Acts could operate concurrently because there was a very short interval between the making of a protection order and the cancellation of a licence. However, in an age of instantaneous electronic communication, it cannot be assumed that any such interval will be more than nominal.

52. Finally, it would be an unusual outcome if the considered decision of a judicial officer is to be rendered otiose by the virtually simultaneous mandatory action of an administrator.

53. There is no relevant area in which the provisions can operate consistently. The Tribunal found (at [54]) that the relevant provisions of the DVPO Act were enacted after the relevant provisions of the Firearms Act. That finding was not challenged on the appeal. Therefore, there are strong grounds to conclude that the power granted to the Magistrates Court to make a non-cancellation order in specific cases was intended to repeal the mandatory but general cancellation effected by the Firearms Act.

54. I accept that implied repeal leads to odd results, including the result that a licence that is saved by a non-cancellation order cannot be renewed because a renewal is treated as a new licence application and refusal of a new licence is mandatory under the Firearms Act.

55. I support the recommendation of the Tribunal at [61] that "...legislative action [should] 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."

(a) The appeal is allowed.

(b) The Tribunal decision of 1 October 2014 is set aside.

(c) The decision made by the Registrar of Firearms on 27 March 2014 is set aside.

(d) In substitution for that decision, the appellant's firearms licence current as at 27 March 2014 is not cancelled.

(e) The appellant is to file written submissions on costs and any supporting materials by 24 July 2015. The respondent is to file written submissions on costs and any supporting materials by 31 July 2015. The appellant is to file any written submissions in reply on costs by 5 August 2015. The issue of costs is to be decided on the basis of the written submissions.

I certify that the preceding fifty-six [56] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.