Makin v Commissioner of Police, NSW Police Force [2014] NSWCATAD 50

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Makin v Commissioner of Police, NSW Police Force [2014] NSWCATAD 50 Hearing dates: 25 March 2014 Decision date: 24 April 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: Naida Isenberg- Senior Member Decision: The decision under review is affirmed Catchwords: Firearms licence revocation - false declaration - psychiatric treatment -public interest - psychiatric evidence equivocal Legislation Cited: Firearms Act 1996 Administrative Decisions Review Act 1997 Cases Cited: Shi v Migration Agents Registration Authority [2008] HCA 31 Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 Ward v Commissioner of Police, New South Wales Police Service[2000] NSWADT 28 Commissioner of Police v Toleafoa [1999] NSWADTAP AMJ v Commissioner of Police NSW Police Force [2012] NSWADT 228 Category: Principal judgment Parties: Michael Makin (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: M Makin (in person Applicant) Sparke Helmore (Respondent) File Number(s): 133291

reasons for decision 1The Respondent has decided to revoke the firearms licence of the Applicant, Michael Makin, on the basis that he did not disclose his psychiatric condition in an application for a firearms licence and that it is not in the public interest for him to continue to hold a firearms licence. 2The Applicant sought internal review of the decision to revoke his firearm's licence, but the decision was affirmed. He has applied for review of the Respondent's decision. The Law 3The general principles of the Firearms Act 1996 ('the Act') are set out in s.3 of the Act: 3 Principles and objects of Act (1)The underlying principles of this Act are: (a)to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b)to improve public safety: (i)by imposing strict controls on the possession and use of firearms, and (ii)by promoting the safe and responsible storage and use of firearms, and (c)to facilitate a national approach to the control of firearms. (2)The objects of this Act are as follows: (a)to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (b)to establish an integrated licensing and registration scheme for all firearms, (c)to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d)to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms, (e)to ensure that firearms are stored and conveyed in a safe and secure manner, (f)to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms. 4Section 24(2)(b)(ii) of the Act prescribes that the Commissioner of Police may revoke a firearms licence if the licensee contravenes any provision of the Act or the Firearms Regulation 2006 ('the Regulation'), whether or not the licensee has been convicted of an offence for the contravention. 5Section 70 of the Act prescribes that a person must not, in or in connection with an application under the same Act or the Regulation, make a statement or provide information that the person knows is false or misleading in a material particular. 6Section 24(2)(d) of the Act prescribes that a licence may be revoked for any other reason prescribed by the Regulation. 7Clause 19 of the Regulation prescribes that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence. 8Section 63 of the Administrative Decisions Review Act 1997 provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.