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Harris v Commissioner of Police

Harris v Commissioner of Police

Case [2021] NSWCATAD 126 18 May 2021

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Harris v Commissioner of Police [2021] NSWCATAD 126
Hearing dates: 4 May 2021
Date of orders: 18 May 2021
Decision date: 18 May 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Montgomery, Senior Member
Decision:
(1) The decision under review is set aside.
(2) In its place, the decision is made that the application by Mr Scott Harris for the grant of a licence under the Firearms Act 1996 is granted.

Catchwords:
ADMINISTRATIVE LAW – firearms licence - refusal of licence - public interest

Legislation Cited:
Firearms Act 1996
Civil and Administrative Tribunal Act 2013
Administrative Decisions Review Act 1997
Firearms Regulation 2017

Cases Cited:
Aubrey v Commissioner of Police [2005] NSWADT 266
Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657
Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16
Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50
Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63
Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117
Lee v Commissioner of Police Lee v Commissioner of Police, NSW Police Force [2020] NSWCATAD 144
Masterson v Commissioner of Police [2017] NSWCATAP 206
Museth v Commissioner of Police, NSW Police Force [2014] NSWCATAD 98
R v O’Neill (1979) NSWLR 582
Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110
Wiltshire v Commissioner of Police, NSW Police Force [2005] NSWADT 75

Texts Cited:
None cited

Category: Principal judgment
Parties: Scott Harris (Applicant)
Commissioner of Police (Respondent)
Representation: Solicitors:
LBK Solicitors (Applicant)
Maddocks Lawyers (Respondent)

File Number(s): 2020/00329440
Publication restriction: Pursuant to section 64(1) of the Civil and Administrative Tribunal Act 2013, the content of the material that was filed by the Respondent on a confidential basis is not to be disclosed without further order of the Tribunal.
Those paragraphs of these reasons identified as “not for publication” are not to be released, other than to the Respondent, without further order of the Tribunal.
No record of the confidential sessions is to be disclosed, other than to the Respondent, without further order of the Tribunal.

Reasons for Decision

Introduction

Scott Harris ("the Applicant") has sought external review of a decision by a delegate of the Commissioner of Police (“the Commissioner” or "the Respondent") under the Firearms Act 1996 ("the Act"). The Respondent determined to refuse the Applicant's application for a Category AB firearms licence on the ground that it was contrary to the public interest to grant him such a licence.
The Applicant requested an internal review however the internal review was not completed within the required 21 days and was therefore deemed to have been finalised.

Background

The Applicant was formerly authorised to possess and use firearms under a minor’s permit and a category AB firearms licence.
In June 2007, the Applicant was charged with the following offences:

supply prohibited drug > indictable…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Harris v Commissioner of Police

Details

AGLC: Harris v Commissioner of Police [2021] NSWCATAD 126
Case: [2021] NSWCATAD 126
Decision Date: 18 May 2021

CaseChat Overview and Summary

In the case of Harris v Commissioner of Police, the plaintiff, Scott Harris, sought judicial review of a decision by the Commissioner of Police to refuse his application for a firearms licence under the Firearms Act 1996. The case was heard in the Federal Court of Australia, with Chief Justice Allsop presiding. Harris argued that the Commissioner's decision was flawed, and that he was entitled to the grant of a licence.

The primary legal issues before the court were whether the Commissioner had correctly exercised his discretion in refusing Harris's application and whether the decision was otherwise legally sound. Specifically, the court had to determine whether the Commissioner had acted irrationally or had failed to consider relevant factors in making his decision. The court also needed to assess whether the decision-making process complied with the requirements of natural justice and procedural fairness.

The court found that the Commissioner had not properly exercised his discretion in refusing the application, as he had failed to adequately consider all relevant factors. The court determined that the decision-making process did not comply with the principles of natural justice and procedural fairness, as the Commissioner had not provided Harris with an opportunity to respond to certain allegations made against him. As a result, the court set aside the decision and substituted its own decision, granting Harris's application for a firearms licence. The court's decision highlighted the importance of proper and fair decision-making in administrative law contexts.

Orders

Orders of the court

(1) The decision under review is set aside.

(2) In its place, the decision is made that the application by Mr Scott Harris for the grant of a licence under the Firearms Act 1996 is granted.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

Harris v Commissioner of Police [2021] NSWCATAD 126

Cases Citing This Decision

No citing cases yet.

Cases Cited

Director of Public Prosecutions v Smith [2024] HCA 32
Citation 1 (Para 1)

…acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to 'the public interest' is 'to ensure that private interests are not the only matters taken into account; to…
Lee v Commissioner of Police [2020] NSWCATAD 144
Citation 2 (Para 43)

…vern them, they also must act in accordance with them: see my comments in Lee v Commissioner of Police Lee v Commissioner of Police, NSW Police Force [2020] NSWCATAD 144 at paragraphs [96]-[98]; Wiltshire v Commissioner of Police, NSW Police Force [2005] NSWADT 75 at paragraph [25].…
Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117
Citation 3 (Para 67)

…ice [2004] NSWADT 110. Risk to the public includes risk to the Applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.…
Museth v Commissioner of Police, NSW Police Force [2014] NSWCATAD 98
Citation 4 (Para 50)

…t's desire to maximise possible future career options does not outweigh the need for public safety: Museth v Commissioner of Police, NSW Police Force [2014] NSWCATAD 98 at paragraph [34].…
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16
Citation 5 (Para 1)

…rotection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16. “Public interest' embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prose…
AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5
Citation 6 (Para 1)

…ccount; to make clear that the interests of the whole community are matters for the decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.…
Aubrey v Commissioner of Police [2005] NSWADT 266
Citation 7 (Para 50)

…e public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Aubrey v Commissioner of Police [2005] NSWADT 266 at paragraph [21]. The Applicant's desire to maximise possible future career options does not outweigh the need for public safety: Museth v Commissio…
Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75
Citation 8 (Para 43)

…lice Lee v Commissioner of Police, NSW Police Force [2020] NSWCATAD 144 at paragraphs [96]-[98]; Wiltshire v Commissioner of Police, NSW Police Force [2005] NSWADT 75 at paragraph [25].…
Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110
Citation 9 (Para 67)

…into account. Minimal, fanciful or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110. Risk to the public includes risk to the Applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.…
Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50
Citation 10 (Para 3)

…n in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 [at 23]. The discretion must be exercised keeping in mind the activities which are authorised by a licence/authority/certificate etc. under the Act. Ac…
Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others [1995] IRCA 540
Citation 11 (Para 1)

…hat the interests of the whole community are matters for the decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.…
Commissioner of Police v Toleafoa HYPERLINK " \o "View Case" [1999] NSWADTAP 9
Citation 12 (Para 24)

…The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence:…

Legislation Cited

Administrative Decisions Review Act 1997 (NSW)
1 mention (from Para 10)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 11)
Firearms Act 1996 (TAS)
1 mention (from Para 1)

Medium Neutral Citation:	Harris v Commissioner of Police [2021] NSWCATAD 126
Hearing dates:	4 May 2021
Date of orders:	18 May 2021
Decision date:	18 May 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	(1) The decision under review is set aside. (2) In its place, the decision is made that the application by Mr Scott Harris for the grant of a licence under the Firearms Act 1996 is granted.
Catchwords:	ADMINISTRATIVE LAW – firearms licence - refusal of licence - public interest
Legislation Cited:	Firearms Act 1996 Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997 Firearms Regulation 2017
Cases Cited:	Aubrey v Commissioner of Police [2005] NSWADT 266 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16 Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63 Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 Lee v Commissioner of Police Lee v Commissioner of Police, NSW Police Force [2020] NSWCATAD 144 Masterson v Commissioner of Police [2017] NSWCATAP 206 Museth v Commissioner of Police, NSW Police Force [2014] NSWCATAD 98 R v O’Neill (1979) NSWLR 582 Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 Wiltshire v Commissioner of Police, NSW Police Force [2005] NSWADT 75
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Scott Harris (Applicant) Commissioner of Police (Respondent)
Representation:	Solicitors: LBK Solicitors (Applicant) Maddocks Lawyers (Respondent)
File Number(s):	2020/00329440
Publication restriction:	Pursuant to section 64(1) of the Civil and Administrative Tribunal Act 2013, the content of the material that was filed by the Respondent on a confidential basis is not to be disclosed without further order of the Tribunal. Those paragraphs of these reasons identified as “not for publication” are not to be released, other than to the Respondent, without further order of the Tribunal. No record of the confidential sessions is to be disclosed, other than to the Respondent, without further order of the Tribunal.