22 It seems to the Tribunal as if the firearm licence was indeed renewed in October 2009 and revoked in January 2010. The decision for review should therefore concern the revocation of the firearm licence, but as the Tribunal explains below, the firearm licence has expired, regardless of whether the decision under review was the decision not to renew or the decision to revoke.

23 To add to the confusion, Ms Atkins requested the Tribunal, in motivation for the application to be dismissed, to 'split' the decision to revoke from the decision not to issue (as if there were two decisions), and then she further suggested for the Tribunal to find that the firearm licence had expired, since it had not been renewed, but she nevertheless wants the Tribunal to deal with the decision to revoke the firearm licence on its merits.

24 All of this may leave Mr Tonkin very disillusioned, frustrated and uncertain about what has been taking place since the firearms were confiscated in September 2009.

25 The picture gets even more confusing when Mr Marsh, who appears for Mr Tonkin, opts not to make any submissions in reply to the Commissioner's application for the matter to be dismissed. Mr Marsh takes issue with the jurisdiction of the Tribunal, but in response to a question by the Tribunal as to what the grounds for his concern with jurisdiction are, Mr Marsh says as follows:

Mr Marsh: ... I can tell you that the jurisdiction of the Tribunal is not accepted and it will be the subject of submissions at some point. (Tribunal emphasis)

Member de Villiers: But, Mr Marsh, what I don't understand if you don't accept the jurisdiction of the Tribunal[,] what have we been doing over the past three, four months with hearings, with costs to your client? I mean, while I follow everything up to now, this part I don't follow.

Mr Marsh: Well, there are a number of explanations for that situation which again I would prefer not to put to the Tribunal. (T:12, 21.1.11) (Tribunal emphasis)

26 The following three possible scenarios present themselves to the Tribunal in regard to the renewal or revocation of the firearm licence.

• Firstly, the renewal of the firearm licence of Mr Tonkin was refused in or around October 2009, albeit that he was not provided with the decision.
• Secondly, the renewal of the firearm licence of Mr Tonkin for a period of 12 months was successful in October 2009 when his cheque was presented and the receipt was issued, but he was not provided with confirmation of the renewal.
• Thirdly, the firearm licence had been renewed in October 2009 but it was revoked in January 2010.

27 The question for the Tribunal is whether these proceedings are affected by the effluxion of time in light of the working of s 9A(3) of the Firearms Act that provides that a firearm licence of this type (being neither an Ammunition Collector's Licence nor a Firearms Collector's Licence) can only be issued for a 12 month period from the date on which it was issued or last renewed.

28 This brings me to the powers of the Tribunal to review a decision of the Commissioner. Section 29 of the SAT Act clothes the Tribunal with the power to affirm, vary or set aside the decision the subject of the review and to substitute the decision with its own decision or to send the decision back to the decision-maker for reconsideration and/or to make any other orders the Tribunal considers appropriate.

29 In considering a decision under review, the Tribunal is limited in that it can only exercise such powers and functions under the enabling Act (Firearms Act) and the SAT Act that correspond to those of the decision­maker. Before the Tribunal can be called upon to review a decision, there must be a reviewable decision by the original decision­maker. The Tribunal can therefore not exercise any power that falls within the original power of the decision­maker; hence, s 22(2) of the Firearms Act provides as follows:

A person aggrieved by a decision made by or on behalf of the Commissioner may apply to the State Administrative Tribunal for a review of the decision. (Tribunal emphasis)

30 The power of the Commissioner to issue, renew or revoke a firearm licence is part of the Commissioner's original powers. It is only when the decision has been made by the Commissioner that s 22 of the Firearms Act allows a review by the Tribunal of the decision.

31 In order for the Tribunal to review a decision of the Commissioner to refuse to renew or to revoke a firearm licence, the proceeding must fall within the period for which the licence was issued (12 months, pursuant to s 9A(3) of the Firearms Act). If not, and if the period for which the firearm licence had been issued has expired, the firearm licence ceases to exist due to an effluxion of time. In such a circumstance, 'the Tribunal has no jurisdiction to grant a new licence' (Dulzurah at [29]). In the Dulzurah matter, the applicant's fishing licence had expired and he did nothing to renew it, but the principle remains relevant to these proceedings; namely, if a firearm licence expires prior to the review process being finalised, the Tribunal ceases to have a practical function to discharge, since the firearm licence the subject of the proceedings had ceased to exist.

32 The review process of the Tribunal therefore commences after a reviewable decision has been made, but it expires when the licence the subject of the review ceases to exist. Even if the review has commenced, it remains subject to the licence, which is the subject of the proceedings, being in existence. The term of the licence is not extended by the working of the review proceedings.

33 This is consistent with the matter of Dunbar and Commissioner of Police [ 2007] WASAT 90 where the question was raised whether the term of a licence issued pursuant to the Security and Related Activities (Control) Act 1996 (WA) was suspended while legal proceedings were underway. The then Deputy President of the Tribunal, Judge Chaney, found in the negative. His Honour found that if a licence is revoked and the decision is taken on review, the term of the licence is not stayed or extended. If the term for which the licence was granted expires (in that case a period of three years), the licence lapses automatically and the proceeding before the Tribunal becomes unjustified. It was concluded, at [22] ­ [23], as follows:

The applicant contends that 'time cannot run against the licence whilst it is revoked'. It is submitted that, because the licence had a further 34 months to run when it was revoked, the applicant would be entitled to a further 34 months operation of his licences if the Tribunal were to set aside the licensing officer's decision.

There is no statutory basis for that contention. It ignores s 29(5) of the SAT Act which provides that a decision that the Tribunal substitutes for the decision­maker's decision is to be regarded, unless the enabling Act states otherwise or the Tribunal orders otherwise, as having effect, or having had effect, from the time when the decision reviewed would have, or would have had, effect. That provision is inconsistent with the proposition that the term of the licence is suspended and recommences from the date of the decision on review. ...

34 The Tribunal will now turn to the application by the Commissioner for these proceedings to be dismissed.

35 Regardless of the confusion characterising these proceedings, the Tribunal finds that the firearm licence ceased to exist because of an effluxion of time and there is no practical benefit to continue with the proceedings.

36 The application must therefore be dismissed for lack of substance.

1. The firearm licence was first issued on 11 September 1989 for a period of 12 months. It was renewed on an annual basis. If the application for renewal of the firearm licence was refused, the firearm licence expired on 20 October 2009. If the firearm licence was renewed on 20 October 2009, the date of expiry of the firearm licence was 20 October 2010. Either way, the firearm licence has expired prior to or during the course of proceedings, and that removes any practical effect that a decision of the Tribunal may have.
2. If the firearm licence was renewed on 20 October 2009 for a period of 12 months but it was subsequently revoked in January 2010, the period within which to consider the decision to revoke was affected by the effluxion of time of the firearm licence when the firearm licence (if renewed) expired on 20 October 2010.
3. There is no ground for the Tribunal to 'split', as Ms Atkins suggested, the renewal decision from the revocation decision. In both scenarios, the firearm licence had expired by effluxion of time and the proceedings before the Tribunal have become unjustified.
4. If the Tribunal were minded to make a decision on the revocation of the firearm licence as is suggested by Ms Atkins, it would in effect constitute a decision by the Tribunal to issue a new firearm licence but as already explained, the Tribunal has no power to make an original decision.

38 The application should therefore be dismissed pursuant to s 47 of the SAT Act on the basis that it lacks substance since the licence has expired and no practical purpose can be served by a continuation of the review process.

The application is dismissed on grounds that it lacks substance since firearm licence no 3045109 has expired.

I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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