FB -v- Commissioner of Police, New South Wales Police Service [2003] NSWADT 28

CITATION: FB -v- Commissioner of Police, New South Wales Police Service [2003] NSWADT 28 DIVISION: General Division APPLICANT PARTIES: FB RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 023158 HEARING DATES: 28/01/2003 SUBMISSIONS CLOSED: 01/28/2003 DATE OF DECISION: 02/13/2003

BEFORE: Montgomery S - Judicial Member APPLICATION: Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Firearms (General) Regulation 1997 Firearms Act 1996 CASES CITED: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 McDonald v Director General of Social Security (1984) 1 FCR 354 APPLICANT REPRESENTATION: In person RESPONDENT C Capper, advocate ORDERS: The Commissioner's decision to revoke Mr FB's ABG firearms licence is affirmed.

Background 1 These proceedings relate to a decision by the Commissioner of Police, New South Wales Police Service ("the Commissioner") to revoke the firearms licence held by Mr. FB. 2 Mr. FB was issued with a Category ABG firearms licence on 27 January 1998. The licence was due to expire on 17 March 2003; however, it was revoked on 17 May 2002. On 27 May 2002 Mr. FB applied for an internal review of the decision to revoke the licence. The Internal review was undertaken by a delegate of the Commissioner and was finalised on 10 July 2002. The decision was taken that the Commissioner's decision to revoke Mr. FB's category ABG firearms licence is to stand. The Commissioner's delegate gave detailed reasons for the decision and Mr. FB was notified of the outcome of the review and those reasons. Reviewable decision 3 The reviewable decision is that of the Commissioner to revoke Mr. FB's firearms licence. On 25 July 2002 Mr. FB applied to this Tribunal for review of the Commissioner's decision. The matter was listed before the Tribunal's Deputy President on 20 August 2002 at which time she made directions for the filing of documents and the matter was listed for hearing on 8 October 2002. The matter did not proceed on that day but was re-listed for hearing on 28 January 2003. Nature of proceedings 4 The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as to either confirm the original decision, vary it, or set it aside and substitute another. "The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made." (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77). 5 These are not adversarial proceedings in which Mr. FB carries an onus of proof. Mr. FB, by making the application, triggers a process of merits review by the Tribunal. Mr. FB does not take on the responsibility of having to prove a case, nor does he cause the Commissioner to have to prove a case. Mr. FB and the Commissioner are before the Tribunal as parties by virtue of section 67(2) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). 6 Section 63(1) of the ADT Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. It makes its own decision in place of the Commissioner's, and "there is no presumption that the decision of the [Commissioner] is correct" (McDonald v Director General of Social Security (1984) 1 FCR 354 at 357). 7 When there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be satisfied to the civil standard of proof, that is, on the balance of probabilities (McDonald at 357). Applicable Legislation 8 The relevant provisions of the Firearms Act 1996 are found in sections 11 and 24 of that Act. Clause 17 of the Firearms (General) Regulation 1997 is also applicable. As so far as they are relevant to these proceedings those sections and clause provide: