Alkini v Commissioner of Police

[2022] NSWCATAD 299

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Alkini v Commissioner of Police [2022] NSWCATAD 299

Hearing dates:

24 August 2022

Date of orders:

7 September 2022

Decision date:

07 September 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

Administrative Law – refusal of licence application – failure to meet firearms licence conditions – whether the Applicant is a fit and proper person to have a firearms licence - whether it is contrary to the public interest for the Applicant to hold a firearms licence.

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Firearms Act 1996

Cases Cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380

Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55

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

Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65

Elrich v Commissioner of Police [2022] NSWCATAD 78

Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89

Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127

Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31

Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.

Minister for Immigration and Citizenship v Li [2013] 297 ALR 225

Nepotu v Commissioner of Police, NSW Police Force [2020] NSWCATAD 101

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28

Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184

Sobey v Commercial and Private Agents Board (1979) 22 SASR 70

Todorovski v Commissioner of Police [2019] NSWCATAD 192

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

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Ahmad Alkini (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
Michael Bowe (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2022/00129333

Publication restriction:

Nil

Reasons for Decision

Introduction

1. This is an application for review of a decision by a delegate of the Commissioner of Police ("the Respondent" or "the Commissioner") under the Firearms Act 1996 ("the Act"). The Applicant, Mr Ahmad Alkini, held a Category AB firearms licence for about ten years from June 2010 for the genuine reasons of recreational hunting/vermin control. The licence was suspended in July 2020, and it expired in August 2020 while it was suspended.

2. The Applicant lodged a new application for a Category AB firearms licence in April 2021. A delegate of the Commissioner determined to refuse that licence application. The decision to refuse the application was affirmed on internal review.

3. The Commissioner was not satisfied that the Applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace and also considered that the issue of the licence would be contrary to the public interest.

4. The Applicant has applied to the Tribunal for external review of the Commissioner’s decision.

The issue for determination

5. The issue in the present case is whether the correct and preferable decision is to affirm, vary or set aside the Commissioner’s decision and, specifically, whether the Applicant is a fit and proper person to have a firearms licence, and whether it is contrary to the public interest for the Applicant to hold a licence under the Act.

The Tribunal’s Approach

6. The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all material first considered, together with any further relevant material to either confirm the original decision, vary it, or set it aside and substitute another. The Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law: section 63 of the Administrative Decision Review Act 1997 (“the ADR Act”).

7. The Tribunal makes its own decision in place of the Commissioner’s, and there is no presumption that the Commissioner’s decision is correct.

8. These are not adversarial proceedings in which the Applicant carries an onus of proof. By making the application, the Applicant triggers a process of merits review by the Tribunal. He does not take on the responsibility of having to prove a case, nor does he cause the Commissioner to have to prove a case. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities.

9. Under section 38(2) of the Civil and Administrative Tribunal Act 2013, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

10. The Tribunal must exercise its discretion 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 paragraph [23].

11. The discretion must be exercised keeping in mind the activities which are authorised by a licence/authority/certificate etc. under the Act. Accordingly, the objects and purposes of the Act are relevant.

Applicable legislation

12. Section 9 of the Administrative Decisions Review Act 1997 ("the ADR Act") provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred on the Tribunal by section 75 of the Act. The Tribunal’s jurisdiction includes review of decisions by the Commissioner to refuse an application for a firearms licence.

13. This application is made under section 75 of the Act and the ADR Act.

14. The Act sets up a scheme to license people to possess and use firearms. One of the underlying principles of the Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms.

15. The underlying principles of the Act provided clear guidance as to how it is to be administered generally. Section 3(1) provides:

(1) The underlying principles of this Act are:

(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b) to improve public safety:

(i) by imposing strict controls on the possession and use of firearms, and

(ii) by promoting the safe and responsible storage and use of firearms, and

(c) to facilitate a national approach to the control of firearms.

16. The Commissioner, and therefore the Tribunal, has discretion in regard to the issues to be decided in this matter and the Act provides no guidance on how that discretion should be exercised. However, in Minister for Immigration and Citizenship v Li [2013] 297 ALR 225, the majority of the High Court stated at paragraph [67]:

[W]here discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority [[1998] HCA 28] requires nothing less. ...

17. Section 24(2)(a) of the Act provides that a firearms licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind.

18. Section 7A(2)(b) of the Act provides:

7A    Offence of unauthorised possession or use of firearms generally

...

1. … a person who is the holder of a licence is guilty of an offence under this section if the person—

…

(b)   contravenes any condition of the licence.

19. The Act sets up a scheme to license people to possess and use firearms. Section 11(3)(a) of the Act prescribes that a firearms licence must not be issued unless that the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace.

20. Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if she considers that issue of the licence would be contrary to the public interest.

21. Section 12(1) of the Act provides that the Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm. Relevantly, section 12 provides:

1. Genuine reasons for having a licence

2. The Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm.

...

1. Subject to this Act, an applicant for a licence has a genuine reason for possessing or using a firearm if the applicant—

   (a)   states that he or she intends to possess or use the firearm for any one or more of the reasons set out in the Table to this section, and

   (b)   is able to produce evidence to the Commissioner that he or she satisfies the requirements specified in respect of any such reason.

Table

Reason: recreational hunting/vermin control

The applicant must—

(a)   be the owner or occupier of rural land, or

(b)   produce proof of permission given by the owner or occupier of rural land, or by an officer or employee of the National Parks and Wildlife Service, the Department of Industry or other authority prescribed by the regulations, to shoot on rural land, or

(b1)   produce proof of permission given by a land manager within the meaning of the Forestry Act 2012 to shoot on land in respect of which the land manager is authorised to exercise functions as land manager under that Act, or

(c)   be a current member of a hunting club approved by the Commissioner in accordance with the regulations.

The regulations may provide for the manner and form in which any such permission is to be given, the extent to which it operates, and how it is to be produced as evidence by the applicant. A person does not, so long as the person is authorised to give permission to shoot on land referred to in paragraph (b) or (b1), incur any liability merely because the person gives the applicant permission to shoot on the land concerned.

...

22. Section 19(1) of the Act provides:

1. Conditions of licence

2. A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.

...

23. Clause 31 of the Regulation provides that a licence that is issued for the genuine reason of recreational hunting/vermin control is subject to the condition that the licensee must comply with any applicable requirements of Part 10 (Participation requirements for club members).

24. Clause 108 of the Regulation provides:

108 Participation requirements for member of approved hunting club

1. The holder of a licence issued for the genuine reason of recreational hunting/vermin control to a member of an approved hunting club must be a member of at least one approved hunting club and must, during each compliance period for such a club of which the person is a member, participate in no less than 2 hunting club events.

2. This clause applies only where membership of an approved hunting club is the sole ground on which the licensee has established the genuine reason of recreational hunting/vermin control.

3. In this clause—

hunting club event means any event approved by any approved hunting club (whether or not a club of which the licensee is a member) involving hunting, shooting or firearms safety training.

25. Clause 111 of the Regulation concerns membership of more than one approved club. It provides:

111 Membership of more than one approved club

1. If the holder of a licence who is required under this Part to be a member of an approved club of a particular category is a member of more than one approved club of that category, the following provisions apply—

   (a)    the licensee must nominate a principal club of that category of which the licensee is a member and with which the licensee will mainly be involved,

   (b)    the licensee must notify the Commissioner of the nominated principal club in writing or in such other manner as may be approved,

   (c)    if the licensee participates in any compliance activity of a club of that category that is not the licensee’s nominated principal club of that category—the licensee must notify the nominated principal club in writing of the details of any such activity within each compliance period of the nominated principal club,

   (d) compliance activity is required only during a compliance period of the nominated principal club.

(2) In this clause, compliance activity means an activity in which a person participates for the purposes of compliance with a requirement of this Part.

Fit and proper person

26. The Act places an emphasis on the need for licensees being fit and proper for the role. The Tribunal has considered the issue of whether an Applicant is a fit and proper person to hold a licence under the Act on numerous occasions.

27. Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].

28. In the context of the Act, fitness and propriety “must be considered in the context of at all times ensuring public safety”: Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254, [22].

29. The question of a person’s fitness to hold a licence is to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake. In the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said:

The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

30. They went on to say at 388:

The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.

31. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said:

In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.

32. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court discussed the meaning of the term ‘fit and proper’ (at 156-7):

"The expression “fit and proper person” is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. “Fit” (or “idoneus”) with respect to an office is said to involve three things, honesty knowledge and ability: “honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do ; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it”— Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."

Public interest

33. Section 11(7) of the Act provides:

Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

34. As noted, the Respondent contends that it is not in the public interest for the Applicant to hold a firearms licence. 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:

"25 The "public interest“ is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal."

35. The 'public interest' allows issues going beyond the character of the Applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.

36. “Public interest' embraces standards 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 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.

37. The licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum.

35. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at paragraph [28] Hennessy DP said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Although Ward was a case on the "fit and proper person" test, the formulation has been held to also apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at paragraph [23].

36. It is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken 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.

The material before the Tribunal

40. The Respondent relies on a bundle of documents filed under section 58 of the ADR Act (“the section 58 documents”) and written submissions. Ms Tipene, the Respondent’s solicitor also made oral submissions at the hearing.

41. The Applicant relies on his own affidavit evidence, and he also appeared at the hearing and was cross-examined. He relies on a number of written character reference that speak generally to his good character and behaviour towards his family and local community. The Applicant’s solicitor, Mr Edwards, provided oral submissions.

Whether the Applicant is a fit and proper person to have a firearms licence

42. The Respondent submits the Tribunal cannot be satisfied that the Applicant does not pose a danger to public safety or to the peace based on the evidence before it. As such, the Tribunal cannot be satisfied that the Applicant is a fit and proper person to hold a firearms licence.

43. The Respondent submits that the Applicant’s conduct is relevant to the question of whether or not he is a fit and proper person to hold a firearm, notwithstanding that charges against him were withdrawn or that no charges were brought against him in relation to other incidences in which he was involved: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31 at paragraph [63].

44. Further, the Tribunal is entitled, and duty bound, to consider any relevant material going to the question of the correct and preferable decision in connection with the particular administrative discretion: Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55 at paragraph [20].

45. The Respondent submits that the Applicant is not a fit and proper person to hold a firearms licence on the basis that his history of aggressive behaviour and lack of compliance with relevant firearms requirements is inconsistent with the statutory principles and objects surrounding the issuing of a firearms application.

Incidents involving the Applicant

46. The Respondent relies on a number of event records from its Computerised Operations Policing System (“COPS”) - a centralised database containing all day-to-day operating information for police investigations. These records, which are contained in the section 58 documents, show various incidents involving the Applicant that have come to the attention of the Respondent.

47. In particular the Respondent points to four reports that were made to police in 2011 and 2017 and an incident in June 2020.

48. Event Ref Number E45515359 relates to an incident on 22 August 2011. The COPS entry records that there was an altercation between four workers at a worksite where the Applicant was engaged. Police were informed that an argument erupted due to a previous incident. One of the workers was alleged to have grabbed a spirit level and threatened to hit another one of the workers.

49. The Applicant said that the spirit level was grabbed in self defence from another worker who had grabbed a crowbar. All that happened was just an exchange of words. None of the workers wanted to provide statements to police about the incident and no action was taken.

50. Event Ref Number E62996384 relates to an incident on 11 March 2016. The COPS entry records that there was a disagreement between two adjacent businesses over the use of water. It was alleged that the Applicant assaulted the operator of the other business. The Applicant does not dispute that he verbally abused the complainant, but he denied that any assault took place. Police did not proceed with any charges.

51. Event Ref Number E62996384 relates to an incident on 31 May 2017. The COPS entry records that a dental practice that the Applicant’s father attends, received a number of phone calls on a private number in relation to completed dental work. The dentist complained to police that the Applicant had made threats of violence towards them. The Applicant stated that he makes dental appointments for his father, but he denied making any threatening phone calls. The Applicant stated that at no stage in 2017 or ever has he contacted the dental practice on a private number making threats of violence. Police made a report of the allegation but did not take any further action.

52. Event Ref Number E117886201 relates to an incident on 30 April 2016. The COPS entry records that a verbal argument occurred between the Applicant and another individual at a community centre with which the two were concerned. It was alleged that the Applicant had assaulted the other individual. It was alleged that the Applicant had pushed the left side of the other individual's face with a lot of force causing him to feel pain and lose balance. He complained to police and gave a formal signed statement. The incident was captured on Closed Circuit Television.

53. The Applicant stated that the argument was in relation to missing funds. He said that it was his view that the other individual was responsible for some sort of fraud and that he didn’t want to hand over receipts or explain where the community centre’s monies were going. The Applicant agreed that he had grabbed the individual by the arm to prevent him leaving but denied that he had assaulted him. He said that the individual has not come back to the community centre since, because he was ousted for stealing the community centre’s money.

54. Event Ref Number E74940918 relates to an incident that occurred in June 2020. Police attended the Applicant’s address to investigate a domestic violence related incident involving some of the Applicant’s family members. Police records indicate that the Applicant was verbally abusive and aggressive towards police, gave false details and refused to comply with police directions. This incident resulted in the Applicant’s arrest, which he also resisted. The Applicant was charged with:

1. Resist officer in execution of duty T2; and

2. Resist or hinder police officer in the execution of duty.

55. These charges were later withdrawn. A copy of the Fact Sheet relating to this incident is contained in the section 58 documents.

56. It is not in dispute that the Applicant was not party to the domestic violence incident that led to the police attending his residence. He stated that when the police arrived at the property he was extremely concerned and perplexed. He swore at the police and told them that they could not be there.

57. He said that when police asked, he told them his name. After the Police stated that they were investigating a domestic violence matter, he decided to remove himself from the situation. When the Police decided to arrest him and tried to restrain him, he continued to swear at the police. He said that he was under shock as to why he was being questioned and why he was under arrest.

58. In hindsight, he agrees that he should not have used the language that he used towards the police and that he shouldn’t have acted in the way that he did. He explained that during the incident he was under severe shock and confusion. The charges were subsequently withdrawn.

The prescribed participation requirements

59. The Respondent relies on the ground that the Applicant failed to satisfy the participation requirements for the licence.

60. As noted above, section 12 of the Act, sets out a number of requirements that an applicant must meet. The Regulation imposes participation requirements on the holder of a licence issued for the genuine reason of recreational hunting/vermin control. The Respondent submits that these conditions are fundamental and relevant to the Applicant’s genuine reasons for holding a licence and an essential part of maintaining that genuine reason.

61. The Respondent submits that one of the underlying principles of the Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms. Consequently, the Respondent submits that significant weight should be placed on the Applicant’s contravention of clause 108 of the Regulations over a substantial period of time.

62. In his affidavit the Applicant stated that he held membership with the Sporting Shooters Association of Australia (“SSAA”) for the periods of November 2010 to November 2014, and April 2015 to April 2021. He conceded that he did not meet the prescribed participation requirement. He stated that it was never his intention not to meet his prescribed participation requirement. However, he explained that he was extremely busy running a business and experienced multiple ongoing personal related matters that affected his ability to find the time to participate.

63. As a member of the SSAA in the periods 2010 to 2014 and 2015 to 2021, he only met the prescribed participation requirements once. However, he stated that he also joined the Cecil Park Clay Target Club and participated in club activities. He was a member during 2011 - 2012 and he then became a guest. He had assumed that the Club would report his attendance at Cecil Park to the Firearms Registry. He subsequently learned that this was not done.

64. In Todorovski v Commissioner of Police [2019] NSWCATAD 192 the Tribunal noted at paragraphs [129] - [130:

1. The applicant has been in breach of the participation requirements in the Regulation since the 2011/2012 reporting period. No explanation for this lapse has been forthcoming. The tribunal has held that the legislation requires strict compliance: Oliver v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 95, [23].

2. Presumably some latitude may be extended where, as here, the regulatory requirement is not directly related to safety. But the admitted total disregard of the requirement over a period of five years in this case is a substantial dereliction that cannot be overlooked. In those circumstances it cannot be in the public interest for the licensee to continue to hold the licence.

Discussion

65. The issue of whether an applicant is a fit and proper person to have a firearms licence has been discussed in numerous decisions of this Tribunal. In this matter, the Respondent submits that the Applicant is not a fit and proper person to hold a firearms licence on the basis that his history of aggressive behaviour and lack of compliance with relevant firearms requirements is inconsistent with the statutory principles and objects surrounding the issuing of a firearms application.

66. In my view, the Applicant has provided a plausible explanation for his behaviour in regard to each of the incidents that the Respondent has identified. I agree that the incidents indicate a tendency towards aggressive behaviour. However, there is no evidence to indicate that he has ever resorted to the misuse of a firearm. In the circumstances, I do not agree that the Applicant is not a fit and proper person to have a firearms licence because of his conduct in those incidents.

67. However, I have formed a different view in regard to Applicant’s failure to satisfy the participation requirements for his licence.

68. I recently considered this issue of failure to satisfy the participation requirements for the licence in my decision in Elrich v Commissioner of Police [2022] NSWCATAD 78. In that decision I noted that Todorovski v Commissioner of Police has been followed in a number of other matters in the Tribunal. See for example Kassem v Commissioner of Police [2021] NSWCATAD 213 from paragraph [53]; Nepotu v Commissioner of Police, NSW Police Force [2020] NSWCATAD 101 at paragraphs [40] - [42] where the Tribunal stated:

1. When applying for a firearms licence an applicant must demonstrate a 'genuine reason' in support of their application. The Applicant signed a declaration confirming that she understood her obligations under the firearms legislation, undertaking she would participate in target shooting and recreational shooting at her nominated club. The Applicant was granted her firearms licence on the basis of this undertaking.

2. It is trite to say that holders of firearms licences must understand and comprehend the requirements of the Act and the Regulation, and must also act in accordance with them.

3. The Applicant however has failed to maintain her genuine reason for her firearms licence as she has failed to meet her annual obligations under the Regulation, as set out in clauses 107-108. Furthermore, she had not done so for a number of years. The Applicant has shown an ongoing disregard for the legislative requirements and the strict controls around firearms licence, which is a substantial dereliction which cannot be overlooked: Todororovski v The Commissioner of Police [2019] NSWCATAD 192 at [130].

   69. I agree with the Respondent that it is not relevant that the Applicant did not intend to breach the requirements. As a licence holder he was obligated to meet the conditions on his licence. If he was aware that he was unable to meet those conditions he should have notified the Firearms Registry.

   70. In Elrich v Commissioner of Police I stated at paragraphs [87] – [91]:

4. I do not hold the same view in regard to the Applicant’s failure to satisfy the conditions on his licence. On the evidence before me I am satisfied that he did not meet the obligations imposed on him as the holder of a firearms licence. ... In my view, his failure to meet these requirements indicates a lack of understanding of his obligations.

5. As noted above, in considering the public interest, the interest of the Applicant must give way to the interest of the public and in particular, the safety of the public. It is necessary to identify the possible risks to the public, and then make decisions that are consistent with the need to reduce any risks to a minimum.

6. One of the underlying principles of the Act is to improve public safety by imposing strict controls on the possession and use of firearms. In order to achieve that objective, it is essential that the holder of a firearms licence has a clear understanding of their obligations.

7. In order to be eligible to obtain a firearms licence the Applicant must prove a genuine reason for possessing or using the firearms. In order to continue as a licence holder, the Applicant was required to maintain that genuine reason. ... He has been in breach of the participation requirements since 2005.

8. The Applicant has indicated that he misunderstood his obligations in regard to hunting. He has failed to meet his obligations and he had not done so for a number of years. As was noted in Nepotu v Commissioner of Police holders of firearms licences must understand and comprehend the requirements of the Act and the Regulation. They must also act in accordance with them. I cannot be satisfied that there is virtually no risk to the public if the Applicant does not understand his obligations as a licence holder. In my view this is not a minimal, fanciful or theoretical risk. However, it is an issue that can be addressed. If he takes steps to address these concerns, the Commissioner may well form a different view should he reapply for a firearms licence.

   71. I have formed a similar view in this matter. In the circumstances it is my view that it is not in the public interest for the Applicant to hold a licence until such time as he can satisfy the commissioner that he understands the requirements of the Act and the Regulation. It follows that the decision under review should be affirmed.

Order

The decision under review is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 07 September 2022