Macdonald v Commissioner of Police, NSW Police [2007] NSWADT 174

CITATION: Macdonald v Commissioner of Police, NSW Police [2007] NSWADT 174

DIVISION: General Division

APPLICANT PARTIES: Clyde Robert Macdonald RESPONDENT Commissioner of Police, New South Wales Police

FILE NUMBER: 073065

HEARING DATES: 1 May 2007

SUBMISSIONS CLOSED: 21 May 2007

DATE OF DECISION: 3 August 2007

BEFORE: Higgins S - Judicial Member

CATCHWORDS: Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Firearms (General) Regulation 1997 Firearms Act 1996

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 CASES CITED: Commissioner of Police, New South Wales Police v Macdonald (GD) [2007] NSWADTAP 13 Hughes & Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 Sporting Shooters Association (SSA) v Commissioner of Police, NSW Police [2006] NSWADT 300

APPLICANT S Mainstone, solicitor REPRESENTATION: RESPONDENT J McDonnell, solicitor

ORDERS: The decision of the respondent is set aside and remitted for reconsideration in accordance with this decision.

REASONS FOR DECISION Background 1 This is an application by Mr Macdonald ('the applicant') seeking review of a decision of the respondent Commissioner to refuse his application for a club armourer licence to possess and use firearms for that purpose. The applicant had sought a limited licence in that he only wished to posses and use category A and B firearms. 2 The applicant is a member of the Illawarra branch of the Sporting Shooters Association of NSW ('the SSA') and had been the holder of a permit to possess and use firearms in his capacity as club armourer since 11 June 1999. That permit was issued by the respondent pursuant to s.28(g) of the Firearms Act 1996 ('the Act'). When the applicant reapplied for such a permit on 15 April 2004, the Commissioner refused to issue a new permit and invited the applicant to lodge the application that is the subject of this application. Although this application was lodged in August 2004, it was not until 25 January 2006 that the respondent determined to refuse the issue of the licence sought. That decision was affirmed on internal review and as a result the applicant lodged an application for review with the tribunal. That application was determined on 26 October 2006: see Sporting Shooters Association (SSA) v Commissioner of Police, NSW Police [2006] NSWADT 300. 3 In that decision the tribunal set aside the decision of the respondent and in substitution thereof ordered that the applicant be issued with the licence for the limited purpose for which it had been sought. The respondent appealed that decision and on 7 March 2007, the Appeal Panel ordered that the decision of the tribunal at first instance be set aside and that the applicant's application for review be remitted for redetermination by the tribunal differently constituted: see Commissioner of Police, New South Wales Police v Macdonald (GD) [2007] NSWADTAP 13. 4 The matter was re-heard on 1 May 2007 and at the conclusion of that hearing orders were made in respect of the respondent providing the tribunal with additional material and also enabling the applicant to file and serve any material in reply. The parties did file additional submissions which have been considered together with all the other material that was previously put before the tribunal at the re-hearing. Issues 5 The grounds on which the respondent refused the applicant's application for an armourer's licence was that contained in s.11(7) of the Act; namely the respondent considered that the issue of the licence sought by the applicant would be contrary to the public interest. 6 At the re-hearing the respondent contended that the applicant's application should be refused on the grounds set out in s.11(3)(a) of the Act; namely that the respondent was not satisfied that the applicant was a fit and proper person and could be trusted to have possession of firearms without danger to public safety or to the peace. Where the respondent is not so satisfied he is required to refuse the application. That is there is no discretion. 7 The factual circumstances relied on by the respondent however has remained the same. These are the applicant's failure to comply with the level 3 safe storage requirements as set out in the respondent's published 'Recommended Safe Storage of Firearms for Dealers, Collectors & Prohibited Firearms/Prohibited Weapons'. There is no dispute that the applicant fails to meet this level of storage and the issue is whether having regard to the provisions of the Act, this failure is such that the applicant is not a fit and proper person for the purposes of s.11(3)(a) of the Act, or whether the respondent has power to issue a limited armour's licence for which the level 1 safe storage requirements are adequate. Relevant legislation – the Firearms Act 1996 8 In 1996 the NSW Government, as part of an Australia wide move to enact tough new gun laws in all jurisdictions, enacted the Act. The underlying principles of that Act are set out in s.3 and include a confirmation that firearms possession and use is a privilege which is conditional on the overriding need to ensure public safety, to improve public safety by imposing strict controls on the possession and use of firearms and by promoting the safe and responsible storage of firearms. 9 Part 2 of the Act deals with the issue of licences and permits to possess and use firearms. Part 3 deals with the registration of firearms. Part 4 deals with the safekeeping of firearms and Part 5 deals with firearms dealers' licences. The remaining parts of the Act deal with miscellaneous offences, firearms prohibition orders, applications to the tribunal and miscellaneous provisions. 10 S.8 in Part 2 of the Act sets out the various licence categories and the authorities that are conferred in respect to each of the licence categories. The relevant category to this application is the category of a firearms dealer licence. S.8 in so far as it relates to this category of licence provides as follows: '8 Licence categories and authority conferred by licence (1) The categories of licences, the firearms to which they apply, and the authority they confer, are as follows: …. Firearms Dealer Licence Firearms to which the licence applies: - The kinds of firearms specified in the licence. Authority conferred by the licence: