French v Commissioner of Police, New South Wales Police Force [2013] NSWADT 221

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: French v Commissioner of Police, New South Wales Police Force [2013] NSWADT 221 Hearing dates: 1 October 2013 Decision date: 10 October 2013 Jurisdiction: General Division Before: GD Walker, Judicial Member Decision: The decision under review is affirmed Catchwords: Firearms licence -discretion to revoke-prohibited articles -silencers-public safety Legislation Cited: Firearms Act 1996; Firearms Regulation 2006; Weapons Prohibition Act 1998 Cases Cited: Lynch v Commissioner of Police [2006] NSWADTAP 43 Vella v Commissioner of Police [2003] NSWADT 91; WN v Commissioner of Police [2007] NSWADT 71. Category: Principal judgment Parties: Brian Robert French (applicant) Commissioner of Police, New South Wales (Respondent) Representation: Applicant in person File Number(s): 133156

reasons for decision

Background 1The applicant has held a firearms licence for most of the time since 1988. He was issued with a class AB firearms licence, No. 406553975, on 27 July 1998. The licence has been suspended on three occasions since 1998 as the applicant was the subject of interim apprehended violence orders (AVOs). The suspensions were lifted when the interim AVOs expired or were revoked. 2In 2001, the applicant was the subject of a full AVO during one period of suspension. The AVO was revoked and the suspension lifted. At that time the applicant was employed as a teacher, but it does not appear that he is still active in that profession. 3On 29 May 2011, police officers attended at the applicant's residential address to conduct a safe storage inspection and assess the applicant's mental health. This followed an anonymous communication received in relation to the applicant. The officers found nothing untoward. 4On 1 August 2012, police again attended at the applicant's residence after receiving further anonymous information that he was in possession of a silencer or silencers. The attending police located two silencers at the premises. The applicant did not hold the required permit authorizing him to possess or use such items. 5The applicant's firearms licence was suspended and he was charged with two counts of possessing or using a prohibited weapon without a permit. The charges were heard at Taree Local Court on 16 October 2012 and the applicant pleaded guilty. The offences were found to have been proved and were dismissed conditionally on the applicant entering into a good behaviour bond for 12 months. The applicant's firearms licence was revoked on 7 January 2013. 6The Firearms Act 1996 s 24 (2) provides as follows: 2) A licence may be revoked: (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or (b) if the licensee: (i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or (d) for any other reason prescribed by the regulations. (2A) If the Commissioner revokes a licence because the licence holder would be refused a licence on the grounds referred to in section 11 (5A), the Commissioner is not, under this or any other Act or law, required to give any reasons for revoking the licence on those grounds. (3) The Commissioner of Police may revoke a licence by serving personally or by post on the licensee a notice stating that the licence is revoked and the reason for revoking it. (4) The revocation of a licence by such a notice takes effect when the notice is served or on a later date specified in the notice. (5) The Commissioner may, by serving a further notice on the holder of a licence, cancel a notice revoking a licence before the notice takes effect. 7In his letter dated 22 March 2013 requesting an internal review of the revocation decision, the applicant stated that he uses his firearms to shoot in the bush as a form of stress relief as he suffers from a diagnosed general anxiety disorder. He produced no evidence to the review supporting that diagnosis or condition or demonstrating that using a rifle is a treatment for the symptoms of that disorder. In the internal review, the delegate noted that a person with a high level of interest in, and experience of, shooting and weapons should keep pace with the relevant legislation. The applicant had been found in possession of two prohibited devices that were not stored in accordance with legal requirements, and should have known that those acts were unlawful. The respondent's delegate therefore determined on 15 April 2013 that the applicant's licence should be revoked in the public interest. 8On 17 May 2013 the applicant applied to this tribunal for a review of the internal review decision of 15 April 2013 (although on the application form he inadvertently gave the decision date as "15/3/13". Until the hearing the matter proceeded on that basis, which was incorrect, as the tribunal reviews the original decision, not the result of an internal review. The application was accordingly amended by consent in the appropriate manner at the hearing. 9The issue in this matter is therefore whether the correct or preferable decision is that the applicant's licence be revoked under s 23 (2) of the Firearms Act.