Foley v Commissioner of Police, NSW Police [2005] NSWADT 12

CITATION: Foley v Commissioner of Police, NSW Police [2005] NSWADT 12 DIVISION: General Division APPLICANT PARTIES: Benedict John Foley RESPONDENT Commissioner of Police, NSW Police FILE NUMBER: 043287 HEARING DATES: 06/12/2004 SUBMISSIONS CLOSED: 12/22/2004 DATE OF DECISION: 01/24/2005

BEFORE: Hennessy N - Magistrate (Deputy President) APPLICATION: Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Firearms (General) Regulation 1997 Firearms Act 1996 Commonwealth of Australia v Esber (1991) 101 ALR 35 CASES CITED: Re Costello and Secretary, Dept of Transport (1979) 2 ALD 934 Re Smith and Defence Force Retirement and Death Benefits Authority (1978) 1 ALD 374 APPLICANT REPRESENTATION: P McLaughlin, solicitor RESPONDENT G Guest, solicitor ORDERS: The Commissioner's decision to refuse to issue the applicant with a permit is affirmed.

REASONS FOR DECISION Introduction 1 Mr Foley is a primary producer who applied for a pistol permit under s 28(g) of the Firearms Act 1996 (the Act). Section 28 is concerned with the issue of permits, and paragraph (g) of the section gives the Commissioner a broad discretion to issue a permit "to authorise the possession or use of firearms in such circumstances as the Commissioner considers appropriate." 2 Mr Foley's property is steep, hilly and rocky with some thick scrub, so he uses two and four wheel bikes and horses to run the property. He said that carrying a rifle on a bike or horse was impractical and dangerous, so that he needed a pistol to suppress feral animals and for the humane destruction of sick or injured livestock. 3 The Commissioner of Police (the Commissioner) refused his permit application. Mr Foley applied for internal review of this decision. In July 2004, the Commissioner affirmed the original decision, refusing to issue the permit under s 29(4) of the Act on the basis that it would be contrary to the public interest to do so. Mr Foley applied to the Tribunal for a review of the Commissioner's decision. The hearing occurred on 6 December 2004. New regulation since the Commissioner's decision 4 On 3 December 2004, after the Commissioner made his decision and before the Tribunal heard the matter, a new Regulation affecting this application came into force. Clause 9(3) Firearms (General) Regulation 1997 (the Regulation) states that the Commissioner must refuse to issue a pistol permit if satisfied that the pistol is to be used for the control of pests or farming or grazing activities. This clause is authorized by the regulation-making powers in s 29(5) and 88 of the Act. 5 The Tribunal is bound to apply the law as if it were the primary decision-maker (Administrative Decisions Tribunal Act 1997, s 63). At common law, a tribunal conducting a merits review must apply the law in force when it considers the matter, unless the decision involves a consideration of accrued rights and liabilities at an anterior date: Re Smith and Defence Force Retirement and Death Benefits Authority (1978) 1 ALD 374; Re Costello and Secretary, Dept of Transport (1979) 2 ALD 934; Commonwealth of Australia v Esber (1991) 101 ALR 35. This general principle is given legislative force by s 63(1) of the Administrative Decisions Tribunal Act which provides that "the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including … any applicable written or unwritten law." 6 On the date of the hearing, 6 December 2004, cl 9(3) of the Regulation was in force, and the Tribunal is therefore bound to apply it. That clause prohibits the Commissioner from issuing a permit where the Commissioner is satisfied that the pistol is to be used for the control of pests or farming or grazing activities. Since Mr Foley claimed he needed the pistol for these purposes, the Tribunal, which stands in the shoes of the Commissioner, has no choice but to affirm the decision under review. Order 7 The Commissioner's decision to refuse to issue the applicant with a permit is affirmed.