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Adminstrative Law — AUSTRALIAN WRITERS ONLY PLEASE Essay Example

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9Administrative Law

Letter of Advice for proceeding

29 September 2013

Dear Mr Anderson,

The safe keeping of firearms by licensed persons in Australia is governed by part 4 of the Firearms Act 1996 (NSW). Under section 39(1) of the Act, a licensed person is required to safely keep the firearm ensuring that the same is not lost or stolen or is not under possession by someone authorized under the Act1. To further ensure compliance in relation to safe keeping of the firearms by licensed persons under category A or B, section 40 (1) states that when the fire arm is not in use, the licensee must always ensure that it is stored in a secure container that is approved by the commissioner2.

The fact that your wife Mrs. Anderson gained access to the firearm shows that there was a failure on your part to safely store the firearm in a secure place. However, to confirm compliance with this Act, the commissioner had prior to this incidence carried out six inspections in your premises where the officers had found compliance through safe storage of the fire arms. The commissioner’s report to that effect justifies why you have continued to be a licensed holder of the fire arms for the last 20 years. Mrs. Anderson also has stated in her later report that you have always been a responsible person and has always stored the firearm in a secure place. She has also added that she called the police because of her aversion to guns. It is also curious that the police officers together with your wife Mrs. Anderson had planned to collect the gun at the time you were not at home hence denying you a chance to explain or defend yourself.

The commissioner has relied on the evidence given by Mrs. Anderson as well as Section 39(1) of the firearms Act which is ambiguous and can be open to statutory interpretation. One of the ambiguities in the section is the term reasonable precaution. What would constitute reasonable precautions and what falls out of that definition? What is the measure under this particular section that would be used to show that one complied with this section or did not? What evidence did the commissioner or the delegates bring forth to show that there was lack on your part to exercise reasonable precaution to prevent any unauthorised person to be in possession with the firearm, in this case your wife?

The appropriate section that would have shown whether you have complied with the Act as far as the safe storage of the firearms is section 403. This section was however overlooked by the commissioner’s delegate in making a decision to revoke your license. The commissioner already has recorded reports to confirm your compliance through the previous inspections that had been conducted in your premises which is evidenced by the fact that you have continued to hold the licence for the last 20 years.

Safe firearm keeping requirements are set well in cf 1997 cl 7. The commissioner has a right of establishing whether the user of the weapon follows the requirements in relation to safe keeping of a firearm4. Commissioner has the power to refuse issuance or cancel the certification where applicant or a user does not apply the license requirements of safe keeping of firearm. Where the user does not comply, the commissioner may acquire the firearm as in this case5. The delegates have established that, on 11 June, the delegates sent confirmed that the gun was easily retrieved by your wife unlike the previous time when it was continuously confirmed that you kept the gun safely and in a locked place. The requirement to store the ammunition in restricted area which the public cannot easily access is thus breached. Consequently, it will be rigorous to follow the decision reached by the Commissioner as the case has to be reviewed by a Committee that deals with firearm permit cancellation.

Your have been using the firearm for the purpose of hunting, farming and grazing activities as was provided in your permit. The cancellation is however questionable considering the ground established by cf 1997 cl 9. Sub clause (3) can only apply where the Commissioner authorize recovery of firearm based on satisfying evidence6. The Commissioner should ensure that information is produced and particularly in line with a person’s medical condition or any other form of disability which might prevent the person from using the firearm for the purpose that were refereed above7. You however do have a good report of responsible and safe usage of the firearm in previous years. It is possible for you to claim that, the delegate relied on precautious information from the wife and a suggestion by the home doctor that you might have depression. However, it has not been confirmed by a psychiatrist as you were advised after the incidence8.

The breach in careless storage of the firearm cannot conclusively lead to cancellation of license. There is a provision for a minimum penalty which you can argue on or raise a defence9. The defence can be considered as you have used the gun responsibly for more than 20 years and it is indicated that in the farm, only you and your wife lives, which reduces the possibility that the firearm would be tampered with. It can actually be established that the wife would have retrieved the gun having known where you lock it. The statement that you handled the gun carelessly can be defended as the day that your wife claimed that you wanted to kill yourself can be argued against as you were under the influence of alcohol but did not cause any personal damage or danger10.

As per Act No. 92 following the amendment made in 2005 to Criminal Code Act, the law in Australia is no longer valid about the illegality of committing suicide11. The law used to vary from state to state in Australia but nowadays, it is not illegal to attempt or commit suicide with exception of Northern Territory. If the reason put forward by the commissioner is primarily based on the probability of you to commit suicide, then you can, through the help of an Ombudsman take complaints against the functionaries or the government. There are quite strong reasons that can help turn the cancellation by use of an Ombudsman. The State Ombudsman would offer investigation to the case of cancellation as well as conciliation. An Ombudsman has a strong propensity to argue that your action on that day was just a bad practice that can be remedied if you are given another time to establish your conduct. Since the commissioner will be independent from the government, report can be derived in a systematic way concerning the issue.

The delegates are entitled to follow the legislation requirement to avoid misuse of the firearms. There are powers given to the commissioner or the delegate to; refuse or prohibit a person from holding a firearm permit or license. The person’s license can still be suspended, revoked or cancelled as it was the case between the delegates sent you. They can also give a prohibition order and on establishment that someone is convinced of convicting an offense that involved firearm12. There are however no such claims that can be established that you were ever involved in domestic violence so revocation of the permit is not grounded. There is therefore some strong point for you to prove to the Committee that the cancelation ought to be considered afresh and the case is determined otherwise.

Sec 42 and 43 of firearm Act provides the Chief Commissioner with general direction that can ascertain the reason behind refusal of renewal of cancellation of license conditions13. Further, the Commissioner can impose further conditions on a license. The section strongly gives you a chance to raise a claim against the revocation. Well, it is established that, where the user cannot demonstrate that he/she has a reason for which the license was previously issued, the conditions can be altered. However, this is not the case with you and it is a strong ground for cancelation and immediate recovery14. The person must be proved that they are responsible person as per the application and the person is fit and proper. There are no actions you carried against public interest and it is not expected that the firearm permit will be cancelled based on minor reasons of an attempted suicide as s 46 provides the commissioner with grounds to immediate cancel a license and s49 provides for Commissioner Power15.

The Act provides for the review of the decision for the period of disqualification according to s 49B. Any person whose license is cancelled following the provision of s 49 can apply to a Committee requiring them review the decision of Chief Commissioner following the rights of s 49 A (2)16. The Committee would then specify the period within which you are not entitled to apply for a license. S 50 provides for the Committee to establish whether the holder of a firearm is included as a non-prohibited person as it reviews its decision. The right of appeal against such cancellation of license is given to the holder under s 82. The Committee then reviews the decision after the person has applied17. The Committee after its considerations will require the Commissioner to provide the license back to you.

Much like any other judicial review of cases that pertain to decisions reached by other entities, your case has a strong complaint against him according to the requirement of handling and storage of firearms18. The allegation of attempted suicide and handling the weapon careless and storage made against you would lead to judicial balance on the case19. One, the review must take consideration of future cases that will involve mishandled firearms and without an emphasis on the contexts; the law is standard and uniformly applied to all members. If the decision by the Commissioner is overruled by the Committee, it means that future case or other pending cases will be attracted or resurface. Inquiries about how the circumstances have been recently will not ultimately mean that you will get a right to get the firearm back. There is an adequate proof that was established by the police who arrived and retrieved the gun easily while you were away and that alone is considered reckless storage20.

Judicial review will provide you with a right to claim penalization other that cancellation. It provides you with a platform to explain your mental condition and prove its state against what your wife and the doctor would have suggested21. The wife and the doctor assertions are not wholly adequate to offer a grounded case for cancelation of the permit. In fact, to a certain extent, you will need to claim the right for minimum penalty as required by the Act22. You can still through the Ombudsman claim the right to further checks to ascertain that the firearm will be rightly used as per the requirements. The circumstances that are provided about your mishandling of the firearm are actually tricky for the Committee as it will have to establish and justify their decision as to why they overruled the cancellation. However, on authorizing the responsible authority to enforce your compliance, the case can be assessed on merits and you would likely receive the firearm.

However, there are potential damages that might be required on minimum penalty which means that financial cost will be needed. There is also expressed concern that the matter might take longer to establish the undisputed nature of the conclusion over the case. The situation might be continued for long which would mean a lot of time waiting for the ruling. Tough measures might be applied requiring you to submit a newer application and require the Commissioner to tighten the time to ascertain that complying terms are met. Since there are difficulties that will be established, advice can be sought through the Committee from various firearms department or appropriate police force to be stern on your usage of firearm.

References

Australia, South. «Firearms (Miscellaneous) Amendment Act 1996.»

Bastin, Lucas, Naomi Hart, Justin Hogan-Doran, Meredith Simons, Hannah Stewart-Weeks, Tim Stephens, and Houda Younan. «Cases before Australian Courts and Tribunals Involving Questions of Public International Law 2007.» The Australian year book of international law 28 (2009): 221.

Cramer, Clayton, and Joseph Olson. «Gun Control: Political Fears Trump Crime Control.» Available at SSRN 1083528 (2008).

Kirsten, Adèle. «Simpler, Better, Faster Review of the 2005 Firearms Amnesty.» (2011); 34.

MacCarthy, Martin. «Australian Gun Owners: An Endangered Species?» Australia New Zealand Marketing Academy Conference (ANZMAC). Melbourne, Australia, 2009.

McPhedran, Samara, and Jeanine Baker. «Mass shootings in Australia and New Zealand: A descriptive study of incidence.» Justice Policy Journal 8, no. 1 (2011).

Mouzos, Jenny. Firearm-related Morbidity in Australia, 1994-95 to 1998-99. Australian Institute of Criminology, 2001.

Parker, Sarah. «Small arms survey 2011.»

Warner, Kate, and Simon Sherwood. Firearms legislation in Australia a Decade after the Nationwide Agreement. Faculty of Law, University of Tasmania, 2006.

1
Section 39 of the Firearms Act 1996 (NWS) provides the conditions for breach of Category A/B firearms.

2
Section 40 of the Firearms Act 1996 (NSW) outlines the obligations to safe keeping of Category A/B firearms.

3
S 40, Obligations to safe keeping of Category A/B firearms.

4
Australia, South. «Firearms (Miscellaneous) Amendment Act 1996.»

5
Mouzos, Jenny. Firearm-related Morbidity in Australia, 1994-95 to 1998-99. Australian Institute of Criminology, 2001; 14.

6
Sub-clause provides the ground under which the permit holder can offer defenses against cancellation based on subjective assertions.

7
McPhedran, Samara, and Jeanine Baker. «Mass shootings in Australia and New Zealand: A descriptive study of incidence.» Justice Policy Journal 8, no. 1 (2011); 23.

8
Rollinger, Harris. «Mental Health and Gun Control Briefing Report.» (2013); 6.

9
Mouzos, 2001; 16.

10
McCarthy, Martin. «Australian Gun Owners: An Endangered Species?» Australia New Zealand Marketing Academy Conference (ANZMAC). Melbourne, Australia, 2009; 13.

11
That is, an affirmatively suicide. Recklessness defined in Criminal Code by awareness of substantial risk circumstance exists and it is unjustifiable to take that risk.

12
Cramer, Clayton, and Joseph Olson. «Gun Control: Political Fears Trump Crime Control.» Available at SSRN 1083528 (2008); 32.

13
S 42 & 43. The direction for withholding and cancelling firearm permit by a Commissioner.

14
Bastin, Lucas, Naomi Hart, Justin Hogan-Doran, Meredith Simons, Hannah Stewart-Weeks, Tim Stephens, and Houda Younan. «Cases before Australian Courts and Tribunals Involving Questions of Public International Law 2007.» The Australian year book of international law 28 (2009): 221.

15
Rollinger, Harris. «Mental Health and Gun Control Briefing Report.» (2013).

16
Parker, Sarah. «Small arms survey 2011; 7.»

17
Warner, Kate, and Simon Sherwood. Firearms legislation in Australia a Decade after the Nationwide Agreement. Faculty of Law, University of Tasmania, 2006; 8.

18
Bastin, Lucas, Cases before Australian Courts (2009): 221.

19
This paragraph is in line with Chapter 8 of the Law book Company, Laws of Australia, Related Offences, Suicide, and ‘Assisting Suicide Attempt’ [192].

20
McCarthy, Martin. 2009; 17.

21
Rollinger, Harris. «Mental Health and Gun Control Briefing Report.» (2013); 9.

22
Kirsten, Adele. «Simpler, Better, Faster Review of the 2005 Firearms Amnesty.» (2011); 34.