Power v Commissioner of Police

Case [2023] NSWCATAD 44

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Power v Commissioner of Police [2023] NSWCATAD 44
Hearing dates: 12 December 2022
Date of orders: 01 March 2023
Decision date: 01 March 2023
Jurisdiction:Administrative and Equal Opportunity Division
Before: J D Little, Senior Member
Decision:

The decision to refuse the Applicant's firearms licence is affirmed.

Catchwords:

Firearms Act - firearms licence - refusal of licence - contrary to the public interest

Legislation Cited:

Administrative Decisions Tribunal Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Cases Cited:

AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5

Aubrey v Commissioner of Police [2005] NSWADT 266

Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240
Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police [2013] NSWADTAP 16

Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218

Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97

Saxby v Commissioner of Police [2021] NSWCATAD 275
Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28

Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110

Category:Principal judgment
Parties: John Edward Power (Applicant)
Commissioner of Police, NSW Police Force
(Respondent)
Representation: Lambton Law (Applicant)
Lindsay Taylor Lawyers (Respondent)
File Number(s): 2022/00272035

REASONS FOR DECISION

  1. This is an application by the Applicant seeking administrative review of a decision by the Commissioner of Police, NSW Police Force (the Commissioner) under the Firearms Act 1996 (the Act) to refuse his application for a Category AB firearms licence (the Application).

  2. For the reasons that follow, the correct and preferable decision in this matter is for the Application to be refused because it is contrary to the public interest for the Applicant to hold a firearms licence.

Background

  1. The Applicant was authorised for firearm possession from at least 23 December 1993.

  2. On 18 March 1999, the Applicant was issued with a Category AB Firearms Licence which was then suspended on 13 October 2008. The suspension was lifted on 11 November 2008.

  3. On 18 June 2009, the Applicant’s Category AB Firearms Licence was issued again. On 26 July 2010, it was then suspended and later revoked on 28 September 2010.

  4. The Applicant’s current application for a Category AB Firearms Licence was received on 9 September 2021. The Applicant’s stated genuine reason for the licence is for the “humane destruction of vermin/ appropriate actuation, calibre, and target animal (vermin)” on his partner’s rural property at which he resides. That property is 1275 acres and contains 30 sheep, a ram, 3 cows and one horse. The Applicant’s adult daughter also resides on the property.

  5. The Applicant’s partner holds a firearms licence as does his daughter. However, the Applicant’s partner and daughter are employed and are often not home. In respect of the Applicant’s partner, she is employed as a registered nurse at a hospital that is a considerable distance from the property.…

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Details
AGLC
Power v Commissioner of Police [2023] NSWCATAD 44
Case
[2023] NSWCATAD 44
Decision Date

CaseChat Overview and Summary

The case of Power v Commissioner of Police involved the Applicant, Mr. Power, who sought a firearms licence under the Firearms Act. The Commissioner of Police refused the application, stating that issuing a licence would be contrary to the public interest. Mr. Power appealed the decision to the court. The primary legal issues before the court were whether the Commissioner's refusal was lawful and if the decision was based on appropriate considerations under the Act. The court had to examine if the Commissioner had acted within the scope of his statutory powers and whether the decision was reasonable and justified under the circumstances.

The court considered the statutory provisions of the Firearms Act and the scope of the Commissioner's discretion in deciding whether to grant a firearms licence. It examined the evidence and submissions from both parties, focusing on whether the refusal was based on valid reasons and if it was proportionate to the potential risk to public safety. The court also assessed whether the Commissioner had considered all relevant factors and exercised his discretion in a manner consistent with the legislative intent. Ultimately, the court found that the Commissioner's decision was lawful and appropriately grounded in the public interest considerations outlined in the Act.

In reaching its decision, the court emphasised the importance of the Commissioner's role in ensuring public safety and the need for a cautious approach in granting firearms licences. The court held that the Commissioner had exercised his discretion in a manner that was both reasonable and consistent with the statutory framework. The court was satisfied that the Commissioner had appropriately weighed the relevant factors and determined that issuing a licence to the Applicant would indeed be contrary to the public interest. Consequently, the court affirmed the decision to refuse the Applicant's firearms licence.

Orders

Orders of the court

The decision to refuse the Applicant's firearms licence is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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