BRENZI and COMMISSIONER OF POLICE - [2025] WASAT 79

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: FIREARMS ACT 1973 (WA)
CITATION:   BRENZI and COMMISSIONER OF POLICE [2025] WASAT 79
MEMBER:   MR T CAREY, MEMBER
HEARD:   12 JUNE 2025
DELIVERED          :   30 JULY 2025
FILE NO/S:   CC 686 of 2024
BETWEEN:   PHILIP JOHN BRENZI
Applicant
AND
COMMISSIONER OF POLICE
Respondent

Catchwords:

Firearms - Review of decision to revoke firearm licence - Preliminary issue - Whether the Tribunal may conduct a review where firearm licence has expired - 'Decision'

Legislation:

Firearms Act 1973 (WA), s 9A(4), s 9A(7), s 20(1)(aa), s 22(1), s 22(2)
Firearms Act 2024 (WA), s 5, s 179, s 179(6), s 335, s 413, s 416, s 416(3), s 419, s 419(4), s 430, Pt 16, Div 2
State Administrative Tribunal Act 2004 (WA), s 11(8), s 17, s 17(1), s 20(1), s 21(1), s 26, s 27, s 27(1), s 29, s 29(1), s 29(2), s 29(3), s 29(3)(c)(i), s 29(5), s 29(9), s 47(1), s 91, Pt 3, Div 3

Result:

Application dismissed as lacking in substance

Category: B

Representation:

Counsel:

Applicant	:	Mr A Hornsey
Respondent	:	Mr J Orley

Solicitors:

Applicant	:	Springdale Legal
Respondent	:	Commissioner of Police

Case(s) referred to in decision(s):

Dunbar and Commissioner of Police [2007] WASAT 90
Middlecoat and Commissioner of Police [2011] WASAT 152
Middlecoat v Commissioner of Police [2012] WASC 309
Polizzi v Commissioner of Police [2015] WASC 319

REASONS FOR DECISION OF THE TRIBUNAL:

On 12 June 2025, this proceeding was listed for final hearing, and the hearing proceeded before Member Hartley (as she then was). The member having since resigned from the office of member, the President has specified that I now constitute the Tribunal for the purposes of the matter.
I have, in accordance with s 11(8) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) had regard to the records of the proceeding in the Tribunal, including the parties' written submissions and the transcript of the hearing on 12 June 2025.
Although there was a full hearing of the matter, including the taking of oral evidence and oral submissions by counsel for both parties, at the start of the hearing the former member canvassed a preliminary issue of considerable importance. As described by the Commissioner, the preliminary issue is:
Whether the Tribunal has jurisdiction to review the matter in light of the expiration of the Applicant's firearm authority.
The preliminary issue arose out of the following facts and circumstances:
(a)Mr Brenzi held a firearm licence under the Firearms Act 1973 (WA) (former Act) permitting him to possess six firearms;
(b)By letter dated 14 August 2024, the Commissioner advised Mr Brenzi that his firearm licence had been revoked;
(c)On 27 September 2024, Mr Brenzi lodged an application to review the revocation decision;
(d)On 7 October 2024, Mr Brenzi's firearm licence would have, absent the revocation decision and any renewal of the licence, expired.
For the reasons that follow, I have concluded that the answer to the preliminary issue is 'No'.

What, if any, is the Tribunal's jurisdiction to restore Mr Brenzi's firearm licence?

Section 17 of the SAT Act provides:
17.What comes within review jurisdiction
(1)If the matter that an enabling Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision, the matter comes within the Tribunal's review jurisdiction.
(2)A matter referred to the Tribunal under section 44(3) comes within the Tribunal's review jurisdiction.
(3)Where subsection (1) or (2) applies the decision is a reviewable decision for the purposes of this Act.
To the extent that the Tribunal has any jurisdiction in this proceeding, it is within its review jurisdiction.
Section 29 of the SAT Act states relevantly:
29.Tribunal's powers in review jurisdiction
(1)The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision‑maker in making the reviewable decision.
(2)Subsection (1) does not limit the powers given by this Act or the enabling Act to the Tribunal.
(3)The Tribunal may —
(a)affirm the decision that is being reviewed; or
(b)vary the decision that is being reviewed; or
(c)set aside the decision that is being reviewed and —
(i)substitute its own decision; or
(ii)send the matter back to the decision‑maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and, in any case, may make any order the Tribunal considers appropriate.
(4)The fact that a decision is made on reconsideration as required under subsection (3)(c)(ii), does not prevent the decision from being open to review by the Tribunal.
(5)The decision‑maker's decision as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decision‑maker's decision —
(a)is to be regarded as, and given effect as, a decision of the decision‑maker; and
(b)unless the enabling Act states otherwise or the Tribunal orders otherwise, is to be regarded as having effect, or having had effect, from the time when the decision reviewed would have, or would have had, effect.
…
The following features of s 29 are significant:
(i)Subsection 29(1) describes the correspondence of the Tribunal's functions and discretions with those of the decision-maker. It must be read with s 29(2), which allows for potentially wider powers.
(ii)Subsection 29(3) states what the Tribunal may do by reference to the impact on the 'decision' being reviewed. It can affirm it, vary it, or set it aside, in the latter case either substituting its own decision or sending the matter back for reconsideration. The Tribunal may, in addition, make any order it considers appropriate.
(iii)Subsection 29(5) sets the time for commencement of the operative effect of the Tribunal's decision, being the time when the decision reviewed would have, or would have had, effect.
Assuming Mr Brenzi persuaded the Tribunal in this proceeding that the correct and preferable decision was that his firearm licence not be revoked, the effect would be that the licence would, notionally, be restored from (say) 14 August 2024 until 7 October 2024.
Further, had the firearm licensing scheme under the former Act survived, the right to seek a renewal of a licence within 12 months of its expiry under s 9A(4) of the former Act would have permitted Mr Brenzi to pursue the restoration of his licence, which the Tribunal has previously found sufficient for it to exercise its review jurisdiction.[1]
[1] Eg Middlecoat and Commissioner of Police [2011] WASAT 152 at [20].
The situation has changed after the commencement of the relevant provisions of the Firearms Act 2024 (WA) (the current Act) and the repeal of the former Act on 31 March 2025.
The Tribunal's powers to review a decision under the former Act are limited to the transitional provisions in Part 16 of the current Act.
Under s 430 of the current Act, if a Commissioner's decision under the former Act is the subject of pending Tribunal proceedings, they 'are to continue and be dealt with by the Tribunal' under the current Act and the SAT Act as if the Commissioner's decision were under the current Act.
Part 16 Division 2 of the current Act deals with transitional licences, permits and approvals.[2] The following sections within this division are relevant:
(i)Section 413 provides that a person who held a licence under the former Act immediately before the commencement of the current Act is taken to hold a 'transitional authority' under the current Act, with the same conditions, limitations and restrictions as applied under the former Act.
(ii)Section 416, concerned with the term and renewal of transitional authorities, provides, by s 416(3), that a transitional authority cannot be renewed as a transitional authority but may be replaced with a firearm authority under the current Act that is granted under s 419[3] or that is granted on application in the ordinary course of the operation of the current Act.
[2] Licence, permit and approval are the three defined types of firearms authority: current Act s 5.
[3] Section 419 of the current Act provides for replacement authorities which are subject to the conditions the Commissioner considers suitable and appropriate, and generally will be for the remainder of the term of the transitional authority (see s 419(4)).
Section 179 of the current Act provides for renewal of firearm licences on an application made after the end of the term of the licence, provided that the renewal application is made within three months of its expiry (in contrast to the former Act's 12 months). However, this does not apply to transitional authorities.
Given that Mr Brenzi's licence, if restored after review, would have expired on 7 October 2024, without any prospect of renewal by reason of s 430 and the other sections of the current Act to which I have referred, he could not have held a licence under the former Act immediately before the commencement of the 2024 Act. He therefore could not be taken to hold a transitional authority under the current Act.
Based upon the above, any review of the revocation decision is incapable of restoring Mr Brenzi's licence. In order for that to occur, Mr Brenzi would need to apply for a firearm authority in accordance with the relevant provisions of the current Act.

The question of the utility of a review

Mr Benzi submits that it is appropriate upon this Tribunal's review of the revocation decision to broaden the subject matter of the review beyond the revocation decision itself, to include such matters as the ground (that harm may be suffered by any person as a result of retaining possession of a firearm[4]) and a finding (involvement in a family violence incident being a given example) upon which the revocation decision was based. This is put on the basis that even if the review cannot result in the return of his licence, it might nonetheless have utility for Mr Benzi by overturning such a ground and finding.
[4] Former Act s 20(1)(aa).
After stating his position that 'all decisions as communicated in the (Commissioner's) letter (of revocation) must be contradicted, not just that to cancel the applicant's firearms licence', Mr Brenzi points to the deleterious consequences, if the letter were to remain uncontradicted, for his ability to hold a firearm licence and 'collateral issues'. The example given of a collateral issue is the possible effect of the Commissioner's findings upon Mr Brenzi in his current matrimonial proceedings.
Mr Brenzi cites two Supreme Court single judge authorities which appear to diverge on the question of the broadening of the relief possible upon a review of reviewable decisions beyond the subject matter of the decision. I will deal with each in turn.

Middlecoat v Commissioner of Police

In Middlecoat v Commissioner of Police,[5] Hall J was concerned with a preliminary argument, on an appeal from a Tribunal decision to affirm a decision of the Commissioner to revoke the appellant's firearm licence, that the appeal was futile as it was no longer possible for the licence to be renewed by reason of the renewal period having expired. According to the argument, the appeal should be dismissed as no practical result could flow from its success.
[5] Middlecoat v Commissioner of Police[2012] WASC 309 (Middlecoat).
Hall J dealt with the appellant's submissions that the Tribunal did have the ability to make a decision, based upon an expansive interpretation of the Tribunal's review powers under s 29 SAT Act. In particular, his Honour set out the appellant's argument that s 29(3)(c)(i) is sufficiently broad to enable a decision to be effectively backdated to the time of the original decision, thereby allowing the possibility that the appellant would continue to have a right of renewal.
Hall J gave seven reasons for rejecting the appellant's arguments and upholding the preliminary argument. The first three concerned the construction of s 9A(7) of the former Act dealing with the renewal of licences. His Honour reasoned that the prohibition on renewal a certain period after expiry of a licence is due to policy reasons, namely, at some point after a licence expires, the prospect that circumstances would have changed significantly render it more appropriate for a new licence to be sought to enable a fresh assessment to occur. His Honour said that no reason exists why the same timeframe and policy reasons underpinning it should not apply equally where a person has sought to review a decision to revoke a licence.
The fourth and fifth of Hall J's reasons deal with the interplay between s 9A(7) of the former Act and s 29 of the SAT Act. His Honour rejected the appellants' submission that s 29(2) can be interpreted as conferring on the Tribunal a power to make a decision that would otherwise be contrary to s 9A(7), by reference to both the absence of some other source of power under the SAT Act or the enabling Act authorising this and the prohibition under s 29(9) against the Tribunal dealing with a matter different in essence from the matter that was before the decision‑maker. The sixth reason is to similar effect, stating that the power of the Tribunal under s 29(3)(c)(i) to set aside the decision and substitute its own decision does not suggest the decisions available to the Tribunal are different in kind and broader than those available to the original decision-maker.
Hall J's seventh reason notes that the Tribunal had not previously interpreted s 29 SAT Act in the manner contended by the appellant. His Honour cited Dunbar and Commissioner of Police [2007] WASAT 90 (Dunbar) with approval.
In Dunbar, Chaney DP (as he then was), in response to a suggestion that s 29(5) of the SAT Act might allow the Tribunal to address a similar problem concerning an expired licence under the Security and Related Activities (Control) Act 1996 (WA), referred to it being 'pointless' for the Tribunal to order the setting aside of the revocation as from the date of the decision on review, 'because on that date, no current licence exists upon which the order could have effect'.[6]
[6] Dunbar at [23]
Hall J said in Middlecoat (at [36] and [38]):
The same reasoning is applicable here. If the revocation decision of 18 September 2010 had not been made, or was set aside on review, the effect would have been to keep alive the then current licence. However, that licence would have expired in any event on 20 September 2010 and was not renewed within the permissible time. Whilst the refusal to renew was also challenged, the fact is that now more than 12 months has elapsed since the licence expired and the enabling act specifically prohibits a renewal after that period. Section 29(5) of the SAT Act can not assist in these circumstances.
…
The effect of this is that any proceedings undertaken by the appellant had to be completed and result in a favourable decision within the 12 month period from the expiry of the licence. If that was not achieved the proceedings would become redundant. The appellant suggested that this was an unfair result because it put him in a situation where he would be at the mercy of delays that may occur in the SAT and in the courts. I accept that that is so, but it does not justify coming to a conclusion which would be contrary to the clear terms of the Firearms Act and the SAT Act.
His Honour concluded (at [40] and [41]):
Since I have concluded that the SAT's powers on review correspond to those of the original decision-maker and that it is no longer open for the Commissioner to renew the licence it follows that the SAT would now also be prohibited by s 9A from renewing the expired licence. Similarly, the court's powers on appeal are so limited.
In these circumstances the preliminary issue must be determined in favour of the respondent. Regardless of the merits of the appellant's grounds of appeal no practical result could flow from success of this appeal. For those reasons leave to appeal is refused and the appeal is, therefore, dismissed.

Polizzi v Commissioner of Police

Polizzi v Commissioner of Police,[7] once again, was concerned with a preliminary issue, expressed by Corboy J (as he then was) in these terms: whether leave to appeal ought be granted in circumstances where there was, so the respondent submitted, no utility in the appeal as the appellant's licence could not be renewed even if the appeal was allowed. The respondent relied upon Middlecoat to contend that the appeal was futile because of time limits imposed by the former Act for renewing a licence.
[7] Polizzi v Commissioner of Police [2015] WASC 319 (Polizzi).
Despite his Honour's agreement with Hall J's analysis of the relevant provisions of the former Act and the SAT Act in Middlecoat,[8] and an apparent acceptance by the appellant that he was prevented from applying to renew his firearm licence by the effluxion of time, Corboy J went on to consider the appellant's 'primary concern', which was 'not with the licence but with the consequences of the decision that he was not a fit and proper person to hold a firearm licence'.[9]
[8] Polizzi at [19].
[9] Ibid at [20].
Corboy J found there still may be utility in an order setting aside the Tribunal's decision sufficient for leave to appeal to be granted.[10]
[10] In Polizzi, Corboy J postponed a decision on granting leave to appeal pending consideration of two further matters (ibid at [28]).
Although the former Act did not expressly prevent a person from applying for a new licence where a previous licence had been revoked, Corboy J considered that it was plain that the previous revocation of a licence by an applicant would represent a significant impediment to the grant of a fresh licence, particularly where the ground of revocation was that the applicant was not a fit and proper person.[11]
[11] Ibid at [23].
According to Corboy J, two 'practical consequences' might flow from an order setting the Tribunal's decision on the ground of a material error of law:
1.The decision to affirm the revocation would no longer stand.
2.Any adverse consequences flowing from a finding that the appellant was not a fit and proper person to hold a licence could be neutralised.[12]
[12] Ibid at [25] and [26].
Corboy J distinguished Middlecoat on the basis that it apparently proceeded on the assumption that the appellant's sole purpose was to renew his firearm licence, and because that purpose could not be achieved, the appeal lacked utility.[13]
[13] Ibid at [22].

My consideration of utility and jurisdiction

Section 335 of the current Act states:
A person aggrieved by a decision can apply to the Tribunal for a review of the decision.
It is not in any appreciable respect different from the corresponding provision in the former Act.[14]
[14] Former Act s 22(2).
'Decision' is defined in s 334 of the current Act as follows:
decision means a decision (including a decision to impose a restriction, limitation or condition) made by or on behalf of the Commissioner, or a delegate of the Commissioner, under this Act.
In the former Act, 'decision' was defined to include 'a restriction, limitation or condition imposed under this Act'.[15]
[15] Former Act s 22(1).
Section 17(1) of the SAT Act speaks of 'the matter that an enabling Act gives the Tribunal jurisdiction to deal with', which 'expressly or necessarily involves a review of a decision'. Where s 17(1) applies, the decision (that is, the decision the review of which is involved in a matter that an enabling Act gives the Tribunal jurisdiction to deal with) is a 'reviewable decision' for the purposes of the SAT Act.

The review of decisions is the consistent focus of Pt 3 Div 3 of the SAT Act. To illustrate:
•In order for a matter to come within the Tribunal's jurisdiction, it must involve a review of decisions;[16]
•Where applicable, the decision-maker is to give any person with a right of review written notice of the decision and the right of review;[17]
•Where applicable, a person with a right of review may request the decision-maker to provide a written statement of reasons for the decision;[18]
•After commencement of a proceeding for the review of a decision, subject to three exceptions, the decision-maker cannot vary the decision or set it aside and substitute a new decision;[19]
•All three express alternative powers vested in the Tribunal in the exercise of its review jurisdiction impact the decision being reviewed;[20]
•Importantly, the purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.[21]
[16] SAT Act s 17(1).
[17] SAT Act s 20(1).
[18] SAT Act s 21(1).
[19] SAT Act s 26.
[20] SAT Act s 29(3).
[21] SAT Act s 27(2).
Mr Benzi's written submissions characterise the Commissioner's findings in the revocation letter in the following way:
… The respondent's decision to make those statements are variously functions and discretions as referred to in s 29(1) of the SAT Act and defined (in) s 5 of the Interpretation Act 1984 (WA) …
His written submissions go on to suggest that even if the Tribunal's jurisdiction to renew the licence were no longer available -
… the tribunal can still review the discretion and any decision of the respondent … including but not limited to making a declaration that he is in fact a 'fit and proper' person …
These submissions conflate, on the one hand, the Commissioner's decision, and, on the other, his functions and discretions. While it is true that the Commissioner's delegate reached the findings and conclusions he did in the exercise of the Commissioner's functions and discretions under the former Act (and the Tribunal would, on any review, be vested with the same functions and discretions in exercising its review jurisdiction), they are not 'decisions' in the defined sense under either the current or former Act. Nor are they 'decisions' for the purposes of the SAT Act provisions dealing with the Tribunal's review jurisdiction.
Mr Benzi's contention that the Tribunal is able to make 'a declaration that he is in fact a fit and proper person' is contrary to Polizzi itself, Corboy J accepting that the court would not have the power to make a positive finding that the appellant was a fit and proper person to hold a firearm licence even if it found that the Tribunal had erred in finding that the appellant was not a fit and proper person to hold a licence.[22]
[22] Ibid at [21].
In Dunbar, Chaney DP considered the applicant's alternative claim for a declaration under s 91 of the SAT Act, the effect of which would have been to negative a finding against his character, on the basis that the finding would stand as evidence if any future application for a licence were made. Noting that if such a declaration were made, that would not relieve the applicant of the obligation to apply for new licences to re‑enter the security industry, his Honour said:[23]
In that event, the licensing officer must again consider the matter afresh and take into account all relevant circumstances. Although, no doubt, weight would be given to any decision the Tribunal may have made, the Commissioner would be at liberty to grant or refuse the applications as he sees fit. If the applications were refused a further application to the Tribunal for review of that decision would be required. In those circumstances, only marginal benefit would accrue to the applicant by obtaining a declaration. The most that might be said is that the Tribunal's processes might achieve some vindication of the applicant's reputation.
The function of the Tribunal in its review jurisdiction is to reach and correct preferable [sic] administrative decisions. While that function may sometimes incidentally affect or vindicate reputations or individual interests, that can never be the sole purpose of the proceedings. In my view, it is not appropriate for the power to make a declaration conferred by s 91 of the SAT Act to be used where the substantive remedy in the Tribunal's review jurisdiction is lacking in substance. Because the licences the subject of the order are no longer in existence, not by reason of the revocation, but by the effluxion of time, the principal relief sought in the application is lacking in substance.
[23] Dunbar at [28] - [29].
I respectfully adopt the entire reproduced passage, with particular reference to the inappropriateness of exercising such power as the Tribunal has to deal with adverse reputational or personal consequences of decisions where it is unable to grant substantive relief, and the availability (which is present here[24]) of a fresh application and future review.
[24] Current Act s 179(6).
Mr Benzi couched his submissions in the language of the utility of a review. Utility formed the basis upon which Corboy J allowed the possibility of the grant of leave to appeal in Polizzi. Despite the similarity of the factual circumstances in Middlecoat, Hall J decided against the existence of any utility.
Although utility can be a significant factor in the determination by a superior court in its supervisory jurisdiction on an appeal from an administrative tribunal, it has no part to play in the review by the Tribunal of a reviewable decision, where the review is by way of a hearing de novo[25] and is unconcerned with the legality of the decision being reviewed.
[25] SAT Act s 27(1).
The position adopted by Hall J in Middlecoat and Chaney DP in Dunbar, that there was no continuing substance in the proceeding before each of their Honours once the licence the subject of a revocation decision had expired due to the effluxion of time, is consistent with, and a reflection of, the centrality of the decision itself to the Tribunal's review jurisdiction. Absent a decision to review, none of the three express alternative orders impacting the decision is possible, and the mandated purpose of the review is unattainable.
In such circumstances, the Tribunal does not have jurisdiction to deal with a matter.
This is the situation in the current proceeding.

Conclusion

For the above reasons, the proceeding is lacking in substance and should be dismissed under s 47(1) of the SAT Act.

Order

The Tribunal orders:
1.The application is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR T Carey, MEMBER
30 JULY 2025