Fielden & Fielden -v- Commissioner of Police, NSW Police Service [2000] NSWADT 156

CITATION: Fielden & Fielden -v- Commissioner of Police, NSW Police Service [2000] NSWADT 156 DIVISION: General Division APPLICANT Jean Fielden and Eris Fielden PARTIES: RESPONDENT Commissioner of Police, NSW Police Service FILE NUMBER: 003109; 003110 HEARING DATES: 12/07/2000 SUBMISSIONS CLOSED: 07/12/2000 DATE OF DECISION: 11/08/2000

BEFORE: Fleming G - Judicial Member APPLICATION: Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit MATTER FOR DECISION: Principal matter LEGISLATION CITED : Firearms Act 1996 O'Sullivan v. Farrer (1989) 168 CLR 210 CASES CITED: Commissioner of Police v Toleafoa ([1999] NSWADTAP 9 Ward v Commissioner of Police, New South Wales Police Service [2000]NSWADT 28 REPRESENTATION: B Ennis, solicitor J Tunks, solicitor ORDERS: 1. The Tribunal affirms the decision under review to revoke the licence held by Jean Fielden under the Firearms Act 1996; 2. The Tribunal affirms the decision under review to revoke the licence held by Eris Fielden under the Firearms Act 1996

BACKGROUND TO THE APPLICATION

1 These reasons concern two matters before the Tribunal, namely the applications of Jean Fielden and Eris Fielden (the Applicants'). Eris and Jean Fielden are husband and wife and live in Batemans Bay on the NSW South Coast. Each has applied for review of a decision by the Commission of Police ('the Commissioner') to revoke the Category A/B firearms licenses held by them under the Firearms Act 1996 NSW ('the Firearms Act'). This category of licence is issued for the genuine reason of recreational hunting or vermin control. 2 The original decisions to revoke their licenses were made in November 1999. These decisions were reviewed by the Commissioner in March 2000 but were not overturned. Each made an application for review to the Administrative Decisions Tribunal ('the Tribunal') on 17 April 2000. Much of the evidence was relevant to both applications and the Tribunal heard the matters together in Batemans Bay on 12 July 2000. 3 The issue for the Tribunal to determine in both applications is whether the Commissioner made the correct and preferable decision in revoking the firearms licenses held by the Applicants. THE RELEVANT LAW 4 The Firearms Act sets up a comprehensive scheme for the licensing of persons in New South Wales to possess and use firearms. The principles and objects of the Act are set out in Section 3 which provides as follows; 3. Principles and objects of the Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (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, and (c) to facilitate a national approach to the control of firearms (2) The objects of the Act are as follows: (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances , (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 prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms. 5 Where a person has been granted a licence the Commissioner may revoke it on one or more of specified grounds set out in the Act. The grounds on which the Commissioner revoked the licence held by Eris Fielden are found in Section 24 of the Firearms Act and they provide as follows; 24 (2) A licence may be revoked: (a) for any reason for which the licensee would be refused a licence of the same kind or (b) . . . (c) . . . (d) for any other reason prescribed by the Regulations. 6 The Commissioner decided that the reason for which the licence held by Eris Fielden would be refused (24(a)) was that ". . . a licence must not be issued unless the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's way of living or domestic circumstances" (Section 11 (4)(a) of the Firearms Act). 7 The Commissioner also revoked the licence on the basis that it was not in the public interest for Eris Fielden to continue to hold it (Clause 17 of the Firearms Regulation 1997). 8 Jean Fielden's licence was also revoked on the ground that it was not in the public interest for her to hold a licence. It was revoked on the additional ground that she had contravened a provision of the Firearms Act (Section 24 (2)(b)(ii)).