Bright v Commissioner of Police, New South Wales Police Service

[2001] NSWADT 120

CITATION:	Bright v Commissioner of Police, New South Wales Police Service [2001] NSWADT 120
DIVISION:	General Division
PARTIES:	APPLICANT Justin Wayne Bright RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	013110
HEARING DATES:	18/07/01
SUBMISSIONS CLOSED:	07/18/2001
DATE OF DECISION:	07/20/2001
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms Act 1996
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT D Paterson, solicitor
ORDERS:	1. The Commissioner’s decision not to grant the applicant a Category A firearms licence is affirmed.

Introduction

1 On 4 May 2001, Mr Bright lodged an application with the Tribunal for the review of a decision of the Commissioner of Police. The decision was to refuse Mr Bright’s application for a Category A firearms licence. The reason for that refusal was that Mr Bright was subject to an apprehended violence order within 10 years before the application for the licence was made.

Relevant legislation

2 Under s 11(5) of the Firearms Act 1996
(5) A licence must not be issued to a person who:
(a) is under the age of 18, or
(b) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or
(c) is subject to an apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to such an order (other than an order that has been revoked),
or
(d) is subject to a recognisance, granted in New South Wales or elsewhere, to keep the peace, or
Note. cf 1989 Act s 25 (1) (c).
(e) is subject to a firearms prohibition order.

Evidence

3 Mr Bright applied for a Category A firearms licence on 13 December 2000. On 17 May 1995 the Sutherland Local Court issued an Apprehended Violence Order against Mr Bright for a period of 12 months. There is no evidence that the AVO was revoked.

Findings

4 There is no doubt, on the basis of this evidence, that Mr Bright was, within 10 years before the application for the licence, subject to an AVO. It is not relevant that the AVO has now expired.

Applicant’s submissions

5 Mr Bright wrote a submission to the Tribunal dated 5 June 2001. He said that no-one ever told him what the effect of the AVO would be on his ability to apply for a firearms licence. He said that if he had known that the decision would affect his application he would have defended the matter in Court.

6 Mr Bright also pointed out that since the AVO was made, the firearms legislation has changed so that he is effectively disqualified from holding a licence for 10 years instead of 5 years. He sees this as extremely harsh and inflexible.

7 Mr Bright pointed out that the Court refused to revoke the AVO because it had already expired. This means that he could not take advantage of the exception in s 11(5)(c) in relation to an AVO which has been revoked. Mr Bright added that he has a steady full time job, no criminal record and a happy home life. He has not seen the woman who obtained the AVO for six years. He does not see how he could be a risk to the community to the community if he was given a firearms licence.

Reasons and decision

8 Section 11(1)(c) of the Firearms Act is a mandatory provision which prevents the Commissioner from issuing a licence in circumstances where the applicant has, at any time within 10 years before the application for the licence was made, been subject to such an AVO. Under s 63(2) of the Administrative Decisions Tribunal Act 1997, the Tribunal can “exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.” The administrator has no discretion to grant Mr Bright a firearms licence and neither does the Tribunal.

9 Consequently, despite Mr Bright’s submissions, the Tribunal has no choice but to apply the law. I have no discretion to grant Mr Bright a licence because of the provisions of the Firearms Act as outlined above.

10 The Commissioner’s decision not to grant the applicant a Category A firearms licence is affirmed.