ALQ June 2023 - Merits Review

Decision summaries

Revisiting fitness and propriety in firearms licensing appeals

Chaaban v Commissioner of Police [2023] NSWCATAD 93

The applicant sought administrative review of the Commissioner’s decision under the Firearms Act 1996 to refuse to grant the applicant a Category AB firearms licence.

The Commissioner contended that the applicant was not a fit and proper person to hold a firearms licence, that the applicant may not personally exercise continuous and responsible control over firearms because of his domestic circumstances, and that the issue of the licence would be contrary to the public interest. The Commissioner relied upon allegations of criminal conduct against the applicant (though he had not been convicted of any offences), the criminal conduct of the applicant’s associates and the applicant’s history of misleading police including on his application for a firearms licence.

The applicant asserted that he no longer associated with criminals after being made aware of their criminality, denied any criminal wrongdoing and denied intentionally misleading police on any occasion.

The Tribunal accepted the Commissioner’s submissions, finding that the applicant had a history of violent behaviour, a disrespect for authority and was at risk of being pressured to provide firearms to criminal associates. This led the Tribunal to conclude that the applicant was not a fit and proper person to possess firearms without danger to public safety and affirm the Commissioner’s decision under review.

Misconceived administrative review of notional carrying capacity

Moore v Local Land Services [2023] NSWCATAD 140.

These proceedings were an application for administrative review of a decision by an officer of the Local Land Services to amend the notional carrying capacity of the applicant’s land.

The applicant disputed the respondent’s compliance with the Local Land Services Regulation 2014 (LLS Regulation) in making that decision and contended that the discretion vested in the respondent ought to have been applied such that rates were not imposed on her land, or at least parts thereof. The respondent submitted that the application was ‘misconceived’ and lacked substance, and that it had complied with the relevant procedure provided for under cl. 17 of the LLS Regulation in amending the notional carrying capacity of the applicant’s land.

The Tribunal dismissed the appeal. It found that the applicant’s arguments in respect of the levy rates ‘demonstrate[d] a misunderstanding of the law’ sufficient to be deemed ‘misconceived and lacking in substance’ and that there was no error in the respondent’s decision regarding the notional carrying capacity for her land. However, the Tribunal declined to dismiss the matter under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (as sought by the respondent), having regard to the fact that the applicant was self-represented.

Full Federal Court considers the meaning of ‘would have entitled the employee to long service leave’

Conroy’s Smallgoods v Australasian Meat Industry Employees Union [2023] FCAFC 59

This matter in the Full Court of the Federal Court of Australia (Full FC) concerned one of the meanings of ‘applicable award-derived long service leave terms’ in s. 113(1) and (3) of the Fair Work Act 2009 (Cth) (FW Act), which is defined, inter alia, as the terms of a pre-modern award (ie. an award in force after the commencement of the FW Act) that ‘would have entitled the employee to long service leave’. Section 113(1) of the FW Act determines when State and Territory long service legislation will apply to an employee covered by a pre-modern award.

The State of New South Wales intervened to make submissions on the words ‘would have entitled the employee to long service leave’. The State submitted that the word ‘entitled’ should be given its ordinary or natural meaning, as referring to a right or benefit to long service leave conferred by the terms of an award. The National Australia Bank (also intervening) and the appellant submitted that a ‘legal interpretation’ should be adopted. This interpretation referred to the terms of a pre-modern award that merely ‘dealt with’ long service leave and could, in some circumstances, refer to a nil entitlement (i.e.. a loading in lieu of long service leave).

A majority of the Full FC (O’Sullivan and Raper JJ) preferred a legal interpretation of the words ‘would have entitled [an] employee to long service leave’, which were capable of referring to a nil entitlement to long service leave. This interpretation avoided the ‘improbable or inconvenient consequences’ (such as criminal liability and liability for civil penalties) associated with a literal construction of the words. In dissent, Bromberg J upheld the State’s approach to the ordinary and natural meaning of ‘entitled’. His Honour held that this meaning better served the purpose behind s. 113(1) of the FW Act, which was to preserve ‘applicable award-derived long service leave terms’ on the commencement of the FW Act. His Honour otherwise resisted the extent and gravity of the ‘improbable or inconvenient consequences’ asserted in the majority judgments. 

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