Allen v Commissioner of Police, NSW Police Force [2015] NSWCATAD 224

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Allen v Commissioner of Police, NSW Police Force [2015] NSWCATAD 224 Hearing dates: 7 October 2015 Decision date: 27 October 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: G Walker Senior Member Decision: Decision under review set aside. Catchwords: FIREARMS LICENSING - silencer - whether necessary for business of a sheep grazier - meaning of "necessary". Legislation Cited: Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Firearms Act 1996; Weapons Prohibition Act 1998. Cases Cited: CIC Insurance Ltd v Bankstown Football Club (1997) 187 CLR 381;Fairfax Digital Australia Pty Ltd v Ibrahim [2012] NSWCCA 125; Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; McDonald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 57;Osborne v Commissioner of Police, New South Wales Police Force [2000] NSWADTAP 10; Petty v Commissioner of Police, New South Wales Police Service [2003] NSWADT 20; Thomas v Mowbray [2007] HCA 33. Texts Cited: M MacCarthy, M O'Neill, H Cripps, An Investigation into the Use of Sound Moderation for Hunting and Game Control, Edith Cowan University c 2014. Category: Principal judgment Parties: James Craig Allen (Applicant) Commissioner of Police, New South Wales Police Force (Respondent). Representation: Solicitors: MCW Lawyers (Applicant) Bartier Perry (Respondent) File Number(s): 1510377

REASONS FOR DECISION 1. On 3 July 2015, the applicant James Craig Allen applied to this tribunal for review of a decision by the respondent on 10 June 2015, following an internal review, to refuse his application for a prohibited weapons permit. 2. The applicant, aged 66, has held a New South Wales firearms licence for at least 26 years and currently holds a category ABC licence. He had previously held a licence in the Australian Capital Territory, and before that had used firearms when performing military service in the army. On about 14 September 2014, he applied to the respondent for a permit under the Weapons Prohibition Act 1998 (WP Act) authorizing the possession and use of a silencer, an item defined by cl 4(3) of schedule 1 of that act as a "prohibited weapon". He also applied at the same time for a permit under the Firearms Act 1996 for a permit to attach a silencer to one of his rifles which would otherwise, pursuant to cl 10 of schedule 1 of that Act, reclassify the firearm as a "prohibited firearm". 3. He submitted that he had a genuine requirement to muffle the noise of a gunshot for his occupational or business purposes as a primary producer at Ingebirah, near Jindabyne in far southern New South Wales. He said that in addition to requiring the use of a firearm for the purpose of destroying sick or injured livestock, he also needed it for the purposes of controlling the influx of feral animal pests that enter his land. His applications for both permits were separately refused by a delegate of the respondent on successive days, 24 and 25 March 2015, virtually the same reasons being given for each refusal.