Holmes v Commissioner of Police

[2021] NSWCATAD 71

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Holmes v Commissioner of Police [2021] NSWCATAD 71

Hearing dates:

On the papers

Date of orders:

19 March 2021

Decision date:

19 March 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Naida Isenberg, Senior Member

Decision:

(1) Being satisfied that the decision in relation to suspension is not an "administratively reviewable decision", the Tribunal lacks jurisdiction to conduct administrative review and, in that regard, the application is dismissed.

(2) Insofar as the application relates to the imposition of a condition on the Applicant’s firearms licence, the Tribunal has jurisdiction to conduct administrative review and, in that regard, decides to deal with the Applicant’s application to the Tribunal for review.

(3) Consequently, the Respondent’s application to dismiss the proceedings under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 is refused.

(4) Within 14 days the parties are to file Short Minutes of Order setting out a timetable for the filing of evidence and submissions with a view to a setting an early hearing date in relation to the imposition of the condition.

Catchwords:

JURISDICTION – decision to suspend firearms licence – whether an “administratively reviewable decision” – whether “request” to supply mental health assessment a condition of licence

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Cases Cited:

None cited

Texts Cited:

None cited

Category:

Principal judgment

Parties:

David Holmes (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
Applicant (Self Represented)
Office of General Counsel, NSW Police Force (Respondent)

File Number(s):

2021/00006048

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. The Applicant, David Holmes, is the holder of a Category AB firearms licence issued by the Respondent on 26 March 2018. The licence is due to expire on 26 March 2023. On or about 15 August 2020, the Applicant called Police after an altercation at his home (the altercation). Subsequently, Police attended his home and seized his firearms. On or about 25 August 2020 the Applicant’s licence was suspended for 12 months on the basis that it was that it was not in the public interest for the Applicant to continue to hold a firearms licence. On or about 27 October 2020 the Firearms Registry wrote to the Applicant with a “request” that he obtain a mental health risk assessment (Assessment) from a psychiatrist or psychologist.

2. On or about 24 December 2020 the Applicant lodged an Application seeking an interim Order that the Respondent not revoke his firearms licence. The Respondent sought to have the Application dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (CAT Act).

3. At my request, in order that I might have an understanding of the context of the suspension, the Respondent filed the COPS report relating to the altercation on 26 February 2021, but sought an Order under s 64 of the CAT Act in respect of the document. For the reasons that follow, it is not necessary for me to decide, at this time, if such an Order should be made.

What decisions can the Tribunal review?

4. The jurisdiction of the Tribunal is set out in s 28 of the CAT Act. Section 28 provides that the Tribunal has "such jurisdiction and functions as may be conferred or imposed on it by under the Act or any other legislation." Relevantly, the Tribunal has administrative review jurisdiction over a decision of an administrator in the circumstances provided for by the Administrative Decisions Review Act 1997 (ADR Act): s 30(1) CAT Act. Section 9(1) of the ADR Act provides that administrative review jurisdiction is conferred under enabling legislation and s 4(1) defines "enabling legislation" as that which provides for applications to be made to the Tribunal with respect to a specified matter or class of matters. A decision over which the Tribunal has administrative review jurisdiction is an "administratively reviewable decision": s 7(1) ADR Act and s 30(3) CAT Act. For the purposes of this matter the only relevant “enabling legislation” is the Firearms Act 1996 (the Act).

5. Section 9(1) of the ADR Act provides:

9 When administrative review jurisdiction is conferred

(1)   The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator:

(a)   in the exercise of functions conferred or imposed by or under the legislation, or

(b)   in the exercise of any other functions of the administrator identified by the legislation.

What decisions under the Firearms Act can the Tribunal review?

6. Section 75(1) of the Firearms Act relevantly provides:

75   Administrative reviews by Civil and Administrative Tribunal of certain decisions

(1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions—

(a)   the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person,

(b)   a condition imposed by the Commissioner on a licence or permit issued to the person,

(c)   the revocation of a licence or permit issued to the person (other than a revocation on the basis that the holder of the licence or permit is subject to a firearms prohibition order or an apprehended violence order),

(d) – (g)…

Evidence

7. The Applicant provided an affidavit dated and 8 February 2021 and made written submissions. The Respondent provided submissions in support of its dismissal application and in response to the Applicant’s application for interim orders. On 10 March 2021 the Applicant filed affidavits by his parents.

8. The Applicant’s evidence and submissions referred in detail to the circumstances whereby his licence was suspended and the request for a mental health risk assessment. He also made detailed submissions in relation to whether it was in the public interest that he continue to hold a firearms licence.

Consideration

9. The only matter before the Tribunal at this time, is whether the Tribunal has jurisdiction to address the Applicant’s concerns. Consequently, the COPS report, the Applicant’s detailed statement, the evidence of his parents, and submissions in relation to the circumstances by which his licence was suspended, are not relevant in the consideration of the matter presently before the Tribunal.

10. The Tribunal's administrative review jurisdiction is dependent on the existence of enabling legislation that provides for applications to be made to the Tribunal for administrative review of decisions. The Applicant seeks review of the decision to suspend his firearms licence. He also contends that the request to supply an Assessment imposes a “condition” on his licence and that this also is a reviewable decision.

Is the decision to suspend the Applicant’s firearms licence a reviewable decision?

11. Clause 20 of the Firearm Regulation 2017 provides that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold a licence. Section 75(1)(c) of the Act, provides that a person may generally apply to the Tribunal for administrative review of a decision to revoke a firearms licence or permit issued to the person.

12. Section 22(1) of the Act empowers the Commissioner to suspend a licence if satisfied that there may be grounds for revoking the licence. The reason for the suspension, provided in accordance with s 22(1)(a) was that it was not in the public interest (for the Applicant to continue to hold a firearms licence). I observe that s 22(1)(b) of the Act permits a person whose licence has been suspended to seek reasons from the Firearms Registry.

13. Neither s 75(1)(c), nor elsewhere in the Act, refers to a decision to suspend a firearms licence as being an administratively reviewable decision. Plainly, a decision to suspend a licence, especially, as in this case, for a finite period, is not the same as a decision to revoke a licence, notwithstanding that the basis for suspension is that the Commissioner is satisfied that there may be grounds for revoking the licence.

14. Consequently, the Tribunal has no jurisdiction to consider the decision to suspend the Applicant’s firearms licence.

Is the request for an Assessment a condition on the Applicant’s firearms licence, and, if so, is such a request an administratively reviewable decision?

15. Section 75(1)(b) of the Act provides for the review by the Tribunal of a decision by the Commissioner to impose a condition on a firearms licence or permit.

16. Section 19(1) of the Act provides that a licence may be issued subject to such conditions as the Commissioner thinks fit to impose. I do not understand that to mean that it is only at the time of issue that a condition may be imposed; consequently, and consistent with the privilege associated with holding a firearms licence, conditions may be imposed as a licence holder’s circumstances change or are perceived by the Commissioner to have changed.

17. By letter dated 27 October 2020 headed “FIREARMS LICENCE – REQUEST FOR DOCTOR’S ASSESSMENT”, the Respondent wrote to the Applicant informing him that he was required to obtain an Assessment, in order for his licence to be “properly assessed”. The letter set out details of how the process was to proceed and that “upon review of the mental health risk assessment, a decision will be made by the firearms registry as soon as possible regarding [the] licence”. The letter set out a number of specific steps the Applicant was to follow, for example - to sign the enclosed authorisation; take it to his General Practitioner with a copy of the letter; obtain a referral to a psychiatrist/psychologist; and directions to the psychiatrist/psychologist to return the documentation to the Firearms Registry. The documentation enclosed an Assessment form which asked the psychiatrist/psychologist very specific questions about the Applicant’s mental health. The Assessment was to be supplied within 8 weeks but if the Applicant experienced difficulties obtaining the completed Assessment he was to contact the Firearms Registry.

18. The inference in the letter, while couched as a ‘request’, was clearly that compliance was not optional. This was confirmed, in my view, by the letter by the Respondent’s solicitor dated 13 January 2021 which noted that, as the Applicant had not supplied the Assessment, his licence “will be revoked in the future”. While “in the future” adds nothing to the statement, it remains clear that the consequence of non-compliance with the ‘request’ will be revocation. I observe that s 24(2)(b)(iii) of the Act provides that a licence may be revoked if the licensee contravenes any condition of the licence, and that revocation, therefore need not be a foregone conclusion. The stated position of the Respondent in this matter though, is that failure to comply with the ‘request’ will result in revocation. Further, in its submissions the Respondent described that the provision of a medical report as a "requirement".

19. Having regard to the above, I consider that the ‘request’ to provide the Assessment constituted the imposition of a condition on the Applicant’s licence. As such, the decision to impose that condition is an administratively reviewable decision under s 75(1)(b) of the Act.

20. I observe that both parties made detailed submissions about the circumstances by which the condition was imposed. It is not necessary for me to canvass those reasons here; that is the crux of the matter to be administratively reviewed by the Tribunal.

21. I also observe that the letter to the Applicant dated 27 October 2020 set out the reasons the Respondent was making the ‘request’. It seems to me that, if the Tribunal were to find that there were reasonable grounds for the imposition of the condition, then logically, the Applicant will be obliged to comply with the condition, that is, obtain an Assessment. The Applicant’s licence has been suspended now for several months and is due to expire in about 2 years. Until the matter is resolved he cannot use his firearms. He may consider that compliance with the ‘request’ might overcome the ongoing suspension, and risk of revocation; obtaining the Assessment may lead to the early lifting of the suspension. However, adopting that course is entirely a matter for him.

Orders

1. Being satisfied that the decision in relation to suspension is not an "administratively reviewable decision", the Tribunal lacks jurisdiction to conduct administrative review and, in that regard, the application is dismissed.

2. Insofar as the application relates to the imposition of a condition on the Applicant’s firearms licence, the Tribunal has jurisdiction to conduct administrative review and, in that regard, decides to deal with the Applicant’s application to the Tribunal for review.

3. Consequently, the Respondent’s application to dismiss the proceedings under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 is refused.

4. Within 14 days the parties are to file Short Minutes of Order setting out a timetable for the filing of evidence and submissions with a view to a setting an early hearing date in relation to the imposition of the condition.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 19 March 2021