Stiller v Commissioner of Police, New South Wales Police Service [2003] NSWADT 7 (15 January 2003)

Last Updated: 3 March 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Stiller -v- Commissioner of Police, New South Wales Police Service [2003] NSWADT 7

PARTIES: APPLICANT

Michael James Stiller

RESPONDENT

Commissioner of Police, New South Wales Police Service

FILE NUMBERS: 023206

HEARING DATES: 12/12/2002

SUBMISSIONS CLOSED: 12-12-2002

DECISION DATE: 15-01-2003

BEFORE: Hennessy N - Magistrate (Deputy President)

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Firearms Act 1996

CASES CITED:

APPLICATION: Firearms Act - firearms licence - revocation of licence or permit

Firearms licence - revocation of licence or permit

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

D Paterson, solicitor

ORDERS: 1. The decision of the Commissioner to revoke the applicant's Category H firearms licence is affirmed.

Reasons for Decision:

1 On 24 May 2002 the Commissioner of Police (the Commissioner) revoked Mr Stiller's Category H firearms licences. This licence enabled Mr Stiller to engage in target shooting. The reason for the revocation was that the Commissioner discovered that Mr Stiller had been subject to an Apprehended Violence Order (AVO) in the previous 10 years. Mr Stiller did not disclose on his application for a Category H licence that he had been subject to an AVO for two years between 4 April 1997 and 4 April 1999. The Commissioner granted him a licence in error on 9 March 2001.

2 Mr Stiller applied to the Tribunal for a review of the Commissioner's decision to revoke his licence.

Jurisdiction

3 The Tribunal has jurisdiction to determine this matter pursuant to s 75(1)(c) of the Firearms Act 1996 (Firearms Act) and s 38 of the Administrative Decisions Tribunal Act 1997 (ADT Act).

Statutory scheme

4 Section 24 of the Firearms Act states that:

(1) A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order.

5 Although the Commissioner relied on this provision for the decision to revoke the licence, it does not apply to the circumstances of this case. Mr Stiller has not become subject to an AVO after the issuing of the licence. He was subject to the AVO before the licence was issued.

6 Under section 24(2) of the Firearms Act a licence may be revoked for several reasons. In particular, s 24(2)(a) provides that:

(2) A licence may be revoked:

(a) for any reason for which the licensee would be required to be refused a licence of the same kind,

7 Section 11(5)(c) of the Firearms Act states that:

A licence must not be issued to a person who:

(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)

8 There is no doubt that if the Commissioner knew that Mr Stiller had been subject to an AVO in the previous 10 years, he would not have issued the licence.

Issue

9 The issue to be determined in this case is whether, given the discretion to revoke a licence in s 24(2)(a) of the Firearms Act, the Commissioner made the correct and preferable decision in revoking Mr Stiller's licence.

Evidence

10 The circumstances of the AVO were that Mr Stiller's mother and 14 year old sister had ongoing unwelcome attention from a neighbour. Eventually, the police applied for an AVO on behalf of Mr Stiller's sister. Mr Stiller was never part of the ongoing dispute with the neighbour. However, after a request from the neighbour and eighteen months of legal proceedings, his sister's solicitor suggested that all parties, including Mr Stiller, sign consenting AVOs. Mr Stiller agreed to that course and was not advised either by the solicitor or the Magistrate that there would be any adverse consequences as a result of such an agreement.

11 When Mr Stiller applied for a Category H firearms licence on 10 January 2001, he did not disclose that he had been subject to an AVO. He says that he understood the question to apply only to current AVOs, and not to an AVO that had expired. In addition he said that because he had consented to the AVO he was not the subject of an AVO.

Decision and Reasons

12 In determining whether the Commissioner has made the correct and preferable decision, the Tribunal must take into account all the relevant considerations. In my view, the relevant considerations are as follows:

Mr Stiller inadvertently failed to disclose the fact that he had been subject to an AVO when applying for a licence;

the Commissioner granted the licence in error, not being aware of the existence of the AVO;

the Firearms Act prevents a person from obtaining a licence if they have been subject to an AVO within the previous 10 years and automatically disqualifies a person from holding a licence if they become subject to an AVO;

when Mr Stiller's current licence expires, he will not be entitled to be issued with a new licence until 2009; and

there is no evidence that Mr Stiller is not a fit and proper person to hold a firearms licence.

13 These conflicting considerations must be weighed carefully in coming to a decision. On the one hand it could be argued that Mr Stiller is a fit and proper person to hold a firearms licence and there is no reason why he should not continue to do so, at least until the expiry of his existing licence. On the other hand, Mr Stiller failed to disclose relevant information in his application which, if it had been disclosed, would have resulted in his application being refused.

14 In my view, despite Mr Stiller's fitness to retain a licence, it is against public policy that a person should be able to retain a licence in circumstances where, through his or her own action or inaction, a licence has been issued in error. If Mr Stiller is able to retain his licence, that sends a message to every other applicant that if they either deliberately or inadvertently fail to disclose a material fact in their application, they may obtain the privilege of holding a licence in circumstances where other people in the same situation cannot hold a licence.

15 I understand that Mr Stiller may perceive this decision as unfair, because it appears that he is a fit and proper person to hold a licence. However, the law must not be open to manipulation, either intentionally or unintentionally, to obtain a privilege to which a person would not otherwise be entitled.

Order

The decision of the Commissioner to revoke the applicant's Category H firearms licence is affirmed.