Nixon v Commissioner of Police, New South Wales Police Service [2000] NSWADT 76

CITATION: Nixon v Commissioner of Police, New South Wales Police Service [2000] NSWADT 76 DIVISION: General Division APPLICANT Frederick Oral Nixon PARTIES: RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 003027 HEARING DATES: 04/04/00 SUBMISSIONS CLOSED: 04/04/2000 DATE OF DECISION: 06/16/2000

BEFORE: APPLICATION: Firearms licence - issue of licence or permit - Firearms Act - firearms licence - issue of licence or permit MATTER FOR DECISION: Principal matter LEGISLATION CITED : Firearms Act 1996 CASES CITED: Christianos v Commissioner of Police [1999] NSW ADT 66 Ward v Commissioner of Police [2000] NSWADT 28 APPLICANT REPRESENTATION: T Morgan RESPONDENT J Tunks ORDERS: 1. The reviewable decision is set aside; 2. The applicant be granted a permit to possess and use a 22 calibre hand gun on the property known as Eskett, situated at RMB 704, Holbrook, New South Wales, for the purpose of the humane destruction of sick , injured and bogged stock and wildlife (which he is otherwise permitted to destroy) on the said property for a period of five years from today.

REASONS FOR DECISION 1 This is an application for review by the Tribunal of a reviewable decision of the respondent to refuse to issue a pistol permit to the applicant for purposes connected with the applicant's primary production business in New South Wales. 2 The application is made to the Tribunal pursuant to section 75(1)(a) of the Firearms Act 1996. 3 On about 20 July 1999 the applicant made an application for a "primary producer pistol permit" under Part 2 of the Firearms Act. The application was refused by the delegate of the Commissioner of Police in about early December 1999 and an application for internal review of the refusal was made. On 1 March 2000 another delegate of the respondent refused the application setting out a detailed statement of reasons. 4 The Tribunal heard the matter on 4 April 2000. The applicant was represented by a solicitor, Mr Morgan, and the respondent was represented by an in-house solicitor, Mr Tunks. Documents were tendered and exhibited without objection which I have read and the applicant gave oral evidence at the hearing and was cross-examined by Mr Tunks. 5 It is common ground that the application is to be decided by reference to sections 28(g) and 29(4) of the Firearms Act 1996 ("the Act") and that there is no other issue between the parties which would otherwise impede the possible grant of a permit under Division 3, Part 2 of the Act, and in particular, sections 28 to 30 inclusive. In other words, generally speaking, the respondent is satisfied that the applicant is otherwise a fit and proper person and can be trusted to possess firearms and that he will be otherwise responsible in dealing with firearms if granted a permit. It is also common ground that there is no relevant regulation that would affect the grant of a permit to the applicant in the present case. 6 The applicant says that he wishes to have the permit in order that he may humanely destroy sick, injured and bogged stock on his property. The primary contention of the respondent is simply that the applicant does not need the permit. 7 As at the time of the hearing the applicant held the following licences under the Act in relation to firearms: - Category A - 'Target shooting', 'Recreational Hunting/ Vermin control; 'Primary Production' - Category B- 'Target shooting'; 'Recreational Hunting/ vermin control; 'Primary production' - Category C- 'Primary Production' - Category H- 'Target shooting'; 'security guard'. 8 The Act provides for the regulation, control and registration of firearms in NSW. The underlying principles of the Act and its objects are set out in section 3 of the Act. 9 Part 2 of the Act provides for licensing and permits for possession and/or use of firearms and provides for certain categories of licences. Section 7 of the Act provides for criminal offences for, inter alia, possession or use of a firearm unless authorised by a licence or a permit under the Act. There appears to be a difference in the Act between the concept of a "licence" and a "permit". However, the significance of the difference is not readily apparent on the face of the legislation (see, Christianos -v- Commissioner of Police [1999] NSWADT 66 esp at [17] to [20]). In any event, the present application is only concerned with the issue of a permit under the Act and not a licence. 10 Section 28(g) of the Act provides: "28 General power to issue permits