Beddow v Commissioner of Police, New South Wales Police Service [2000] NSWADT 119 (31 August 2000)

Last Updated: 12 December 2000

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Beddow -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 119

PARTIES: APPLICANT

David Ian Beddow

RESPONDENT

Commissioner of Police, New South Wales Police Service

FILE NUMBERS: 003080

HEARING DATES: 30/05/2000, 31/05/2000

SUBMISSIONS CLOSED: 31/05/2000

DECISION DATE: 31/08/2000

BEFORE: Lees M - Judicial Member

LEGISLATION CITED: Firearms Act 1966

CASES CITED: Puglisi -v- Director, NSW Fisheries [1999] NSWADT 110

Brandusoiu -v- Commissioner of Police[1999] NSWADTAP 8

Bourke -v- Commissioner of Police [1999] NSWADT 1

APPLICATION: Review of decision to refuse firearms licence

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

J Tunks, solicitor

ORDERS: The administrator's decision to refuse Mr Beddow's application for a firearms licence is affirmed.

Reasons for Decision:

REASONS FOR DECISION

Application Background

1 On 22 March 2000 Mr Beddow, the applicant, lodged with this Tribunal an application for review of the decision of the Commissioner of Police to refuse to issue the applicant with an individual firearms licence.

2 The application for the licence was originally made on 20 May 1998. The original decision of the Commissioner of Police, the administrator, to refuse the licence was made on 30 June 1999. The administrator's original decision was served on the applicant on 31 January 2000. The notice of decision is undated. It refers to attached `Statement of Reasons' (but these were not provided to the Tribunal by either party). The decision refused the applicant's application for a licence.

3 The applicant requested, pursuant to s 53 of the Administrative Decisions Tribunal Act 1997, that the decision be internally reviewed. The administrator's internal review decision was made on 21 February 2000. It refused the licence as well.

4 The applicant applied to this Tribunal for review of that internal review decision pursuant to s 75 of the Firearms Act 1996. The applicant attended the Tribunal's hearing by telephone.

Applicable Legislation

5 Section 11 (5) (c) of the Firearms Act 1996 reads

A licence must not be issued to a person who:

.......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)...

6 Section 53(7) of the Administrative Decisions Tribunal Act 1997 reads:

For the purposes of subsection (6), an applicant is notified of the reasons for a decision in an internal review only if the applicant is given a statement of reasons setting out the following:

(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b) the understanding of the internal reviewer of the applicable law,

(c) the reasoning processes that led the internal reviewer to the conclusions the reviewer made.

Findings of Fact

7 At the hearing, after clarification of the applicant's licence history and the basis for the administrator's decision, none of the essentially relevant facts in the application proved to be in issue. These facts are that: a firearms licence held by the applicant numbered 404774264 had been cancelled in 1997; the licence application, the subject of the Commissioner's decision, was for a new licence, not for the renewal of an existing licence; the Commissioner's decision was a licence refusal not a licence revocation; and the applicant had been subject to an Apprehended Violence Order (AVO) as prescribed by the legislation.

8 Attached to the applicant's application for review of the Commissioner's decision by this Tribunal was a photocopy of the front of a firearms licence issued to the applicant and numbered 404774264 stating its expiry date as 23/02/2001. At the hearing the applicant stated that he still possessed that licence. A copy of the licence application lodged with the administrator was also provided to the Tribunal as part of the application for review. It had been completed in such a way that suggested that the application was for a renewal of an existing licence. In the early stages of the hearing, a brief adjournment took place during which time the status of the applicant as a firearms licence holder was checked by the administrator with its Firearms Registry. In a document subsequently provided to the Tribunal entitled `Licence History - David Ian Beddow', facsimile dated 30 May 2000, the fourth entry listed that the applicant's licence, numbered 404774264, had been cancelled on 25 October 1997. Accordingly, the administrator submitted that the licence the applicant had in his possession was not valid as it had in fact been cancelled years ago. The applicant did not challenge the administrator's document or its contents in this regard.

9 Accordingly, I find that at the time of making his application for a firearms licence, the applicant did not hold a current firearms licence and the application for a licence was for a new licence and that the Commissioner's decision under review by this Tribunal was the refusal of that application.

10 The administrator provided the Tribunal with a copy of the New South Wales Police Service Computerised Operational Policing System (known as `COPS') report relating to the applicant. This report recorded brief details relating to several incidents of a domestic nature involving the applicant and an AVO made against him, all occurring in 1996.

11 The applicant was concerned about what he regarded as a certain incompleteness of the COPS report and some inaccuracies in some of its detail. He took the opportunity to inform the Tribunal of several of these details, which although acknowledged to concern the applicant are not material for present purposes. The applicant also provided the Tribunal with some background information behind the circumstances of the form of the AVO issued against him. The applicant's main contention was that there was a reason why the AVO did not include any prohibition or restriction relating to any firearms licence he held at the time and that was specifically because at the time his employment was as a policeman; this was significant because he only agreed to the AVO because it was in that form and accordingly would not affect his employment. The Tribunal accepts what the applicant says in this regard. However, there is nothing in that background information which casts into doubt the fundamental fact that the AVO was indeed issued against him on 25 March 1996.

12 The applicant wrote to the administrator at the time he sought internal review of the original decision to refuse his licence. It is clear from that letter (of 6 February 2000) that the applicant had believed two things: that the relevant basis for the decision relating to the refusal concerned his being a fit and proper person; and that the administrator had a discretion whether or not to grant the licence.

13 It was clear to the Tribunal at hearing that these beliefs also informed the applicant's motivation in seeking its review of the administrator's internal review decision. The applicant wanted particularly to challenge any suggestion that he was not a fit and proper person to obtain a firearms licence. After some explication by the administrator as to the actual bases for the decision and confirmation that his character had not formed any part of the administrator's reasoning, the applicant pursued that concern no further.

14 At the hearing the applicant also raised his concern that the licence refusal was aimed at discrediting and victimising him. He did not introduce any evidence in support of that concern. The administrator's representative sought to assure the applicant and the Tribunal that there was no intention of that kind and that the administrator's decision was based solely on the operation of the mandatory provision, section 11(5)(c)

15 As noted above, the Tribunal was not provided with the `Statement of Reasons' stated to be attached to the administrator's original Notice of Refusal. Whether these reasons were consistent with the reasons subsequently given for the decision made on internal review is not known. The basis for the applicant's mistaken belief as to the reason his licence was refused is also not known. It raises a question as to the efficacy of the administrator's `Internal Review - Statement of Reasons' provided to the applicant.

16 It was a very brief statement consisting essentially of three sentences, each one directed at the three elements required by s 53(7) of the Administrative Decisions Tribunal Act 1997, noted above. They read as follows.

I am satisfied that you are subject to an Apprehended Violence Order.....

My understanding of the applicable law is that:

"Section 11(5)(c) of the Firearms Act, 1996, requires that the Commissioner of Police must not issue a licence to a person if satisfied that the person is subject to an Apprehended Violence Order, or who has, at any time within ten years before the application for the licence was made, been subject to such an order (other than an order that has been revoked)."

The decision to refuse your application for a firearms licence was made as a result of the legislative requirements as described above.

17 Obviously, there is no mention whatsoever of the applicant's character, so the applicant's mistaken belief cannot be sourced to these reasons. The adequacy of these reasons was not under express challenge. However, their economical or minimal fashion might raise a question as to their sufficiency in enabling the applicant `to understand why the negative decision was made. The disappointed applicant needs to be given enough information to enable him or her to understand the reasoning process...', see Puglisi v Director of Fisheries, NSW Fisheries [1999] NSWADT 110 at para 10. Perhaps it might help in circumstances such as these for the administrator to explain in a little more detail the mandatory nature of the relevant provision and that, given the fact of the offence and the intention of the provision, the Commissioner has no discretion to exercise in making the decision and accordingly he is bound by the legislation to make that decision.

Submissions

18 The administrator submitted that the facts relating to this application clearly placed it within a mandatory refusal category as provided for by the legislation and that accordingly the application was correctly refused by the administrator.

19 During the proceedings, in order to assist the applicant, the administrator and the Tribunal had explained and discussed briefly the mandatory nature and effect of s 11(5)(c) of the Firearms Act. No submission as to the administrator exercising a discretion was pressed by the applicant.

20 On gaining an understanding of the legislative context and the relatively new mandatory provision and the fact it allowed the administrator, in the circumstances, no discretion whatsoever as to whether or not to issue a licence, the applicant appeared to acknowledge and submit that with the legislative changes `the goal posts had shifted' and all he could do was `abide' by such.

Decision

21 The Tribunal President, His Honour Judge K O'Connor, stated in Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8 at para 9:

The only role to be played by the Tribunal in dealing with an application for review, where its jurisdiction is in the same terms as that exercised by the administrator and where the administrator has a duty to refuse an application on the basis of objective facts, is to satisfy itself that the objective facts are established: see Bourke v Commissioner of Police [1998] NSWADT 1.

22 Although the additional background details provided by the applicant concerning the AVO have been accepted by the Tribunal, they do not change the essential relevant fact that an AVO was made in 1996 and therefore falls within the legislatively prescribed ten year period and therefore must be considered for present purposes.

23 There was no information introduced or submission made by the applicant which altered or put into doubt any of the relevant facts relating to the circumstances concerning this application and its refusal. The Tribunal is satisfied that the relevant facts have been established and fall squarely within the circumstances provided for by s 11(5)(c) of the Firearms Act.

24 In accordance with s 63 (3)(a) of the Administrative Decisions Tribunal Act 1997, my decision is that the administrator's decision to refuse Mr Beddow's application for a firearms licence is affirmed.