Bilal Malas v Commissioner of Police, New South Wales Police Force

[2024] NSWCATAD 281

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Bilal Malas v Commissioner of Police, New South Wales Police Force [2024] NSWCATAD 281

Hearing dates:

12 June 2024

Date of orders:

23 September 2024

Decision date:

23 September 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member

Decision:

(1) The decision to revoke the Applicant’s Category AB Firearms Licence is set aside.

(2) The Category AB Licence which issued on 30 March 2020 is to be reinstated

Catchwords:

ADMINISTRATIVE LAW - Firearms –– objects of legislation – public interest – public safety

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Firearms Regulation 2017

Cases Cited:

Artridge v Commissioner of Police NSW Police Force [2021] NSWCATAD 188

Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11

Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16

Cusumano v Commissioner of Police [2001] NSWADT 50

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409

Livadaru v Commissioner of Police [2008] NSWADT 160

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

Masterson v Commissioner of Police New South Wales Police Force [2017] NSWCATAP 205

Rose v Commissioner of Police (No 2) [2022] NSWCATAD 26

Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28

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

Wiltshire v Commissioner of Police [2005] NSWADT 75

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Bilal Gordon Malas (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Hartmann & Associates Solicitors (Applicant)
Crown Solicitors Office (Respondent)

File Number(s):

2024/00014492

Publication restriction:

Pursuant to s 64 (1) (b), 64 (1) (c ) and 64 (1) (d) of the Civil and Administrative Tribunal Act 2013, the publication and release of the material in those paragraphs marked ‘[Not for publication]’ – paragraphs [32]-[ 34] inclusive are not to be published or released to any person other than the respondent or their representative.

Reasons for decision

What these proceedings are about

1. These proceedings concern the Commissioner of Police’s decision to revoke the applicant’s Category AB Firearms licence on 17 November 2023 and the upholding of that decision by way of Internal Review determined on 9 January 2024.

Introduction

2. The applicant in these proceedings is Mr Bilal Malas (Mr Malas). The respondent is the Commissioner of Police NSW Police Force (the Commissioner). The Commissioner’s delegate in dealing with the existing licence formed the view that it was not in the public interest for Mr Malas to continue to hold a Category AB Firearms Licence.

Background

3. Mr Malas was first issued with a Category AB Firearms Licence on 30 March 2020. That licence was due to expire on 21 May 2025 however on 17 November 2023 the Commissioner’s delegate determined to revoke that licence.

4. The revocation arose in circumstances whereby Police had initially suspended Mr Malas’s licence on 10 January 2023 and his firearms were seized. Subsequent to that action NSW Police appear to have undertaken an audit of Mr Malas’s compliance with the licence requirements including membership of an approved shooting club / association and compliance with attendance requirements at activities organised in that context.

5. In the Notice of Revocation NSW Police also noted that Mr Malas’s NSW drivers licence was suspended for traffic infringements. The audit identified that for various periods of time since the licence issued Mr Malas was not a member of a shooting club and that at various times (noted as ‘attendance years’) Mr Malas had failed to meet attendance requirements at those Clubs. On that basis he was determined to not have a genuine reason for having a firearms Licence (at the times when he was non compliant with membership and or attendance matters). Further this lack of genuine reason was considered by NSW Police as leading to a further ‘breach’ identified as a failure to notify the Firearms Registry that he no longer had genuine reasons for holding the licence, contrary to firearms licencing statutory requirements.

6. The initial decision maker relied upon s 12 (1) and s 24 (2) (a) of the Firearms Act 1996 in revoking the licence. Those provisions provide:

2 Genuine reasons for having a licence

(1) 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.

(2) An applicant does not have a genuine reason for possessing or using a firearm if the applicant intends to possess or use the firearm for any of the following reasons—

(a) personal protection or the protection of any other person,

(b) the protection of property (other than in circumstances constituting a genuine reason as set out in the Table to this section).

(3) Subsection (2) does not limit the reasons which the Commissioner may be satisfied are not genuine reasons for the purposes of justifying the possession or use of a firearm.

(4) 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: sport/target shooting

The applicant must be a current member of a shooting club approved by the Commissioner in accordance with the regulations, and which conducts competitions or activities requiring the use of the firearm for which the licence is sought.

…

24 Revocation of licence

(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.

(1A) The Commissioner must revoke a licence that is held for the purpose of employment as an armed security guard (within the meaning of the Security Industry Act 1997) if—

(a) the licensee has failed to undertake any firearm safety training required under this Act or the regulations, or

(b) in the case of a licensee who holds a class 1F licence or a visitor permit authorising the licensee to carry out security activities of a kind authorised by a 1F licence under the Security Industry Act 1997—the 1F licence or visitor permit is revoked under that Act or the licensee contravenes any condition of the firearms licence under this Act.

(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. As noted above at [5] reliance was also placed on a failure of Mr Malas to notify the Registry of the absence of maintaining a genuine reason for the licence in accordance with cl 15 (1) of the Firearms Regulation 2017 (the Regulation). That clause provides:

15 Requirement to notify Commissioner if reason for possessing firearm ceases

(1) If a licensee’s genuine reason for possessing or using a firearm under the authority of a licence can no longer be established by the licensee, the licensee must, within 14 days after becoming aware that the licensee has ceased to have that genuine reason, notify the Commissioner of that fact in writing or in such other manner as may be approved.

Maximum penalty—50 penalty units.

8. Clause 29 (a) and 107 of the Regulation deals with requirements around compliance with the sport / target shooting genuine reason (29 (a)) and membership of at least one approved shooting club (107). These matters were referred to in the revocation decision as well as the failure to comply with the other nominated genuine reasons (recreational hunting). It appears that the delegate determined that a breach of these matters constituted a finding that holding the licence would be contrary to the public interest and on that basis (whilst not specifically stated in the reasons), the delegate revoked the licence under s 24 (2) (d) of the Firearms Act and cl 20 of the Regulation.

9. Mr Malas then sought Internal Review of that revocation decision. In support of his Internal Review request Mr Malas provided submissions and evidence to address the Commissioner’s concerns on 13 December 2023 through his solicitor Mr Kable.

10. Those submissions included evidence of permission to shoot on private land ostensibly satisfying the recreational hunting genuine reason requirement. Upon Internal Review the delegate affirmed the decision to revoke made in the first instance. It appears that the delegate found that Mr Malas was associated with a shooting group at a property at Rock Forest in the Central West of NSW having leant his firearms to a Mr Skaf and a Mr Dadoun. Whilst both of these persons were registered firearms licence holders, the shooting group had engaged in a number of breaches of the firearms provisions including allowing unlicensed persons to have access to unsecured firearms. The delegate asserted that Mr Malas had knowledge of these matters when he lent his firearms, including that his father and brother would be in attendance as part of the shooting group.

11. The delegate found that on the balance of probabilities in light of his father and brother attending the shooting group, that Mr Malas was aware of the activities that were to be undertaken at Rock Forest including access to firearms by unlicensed persons. Further that Mr Malas would have known that members of his family were attending and unlicensed, and in such circumstances a reasonable licence holder would have made further inquiries prior to allowing his firearms to be used in such a manner. Reliance was also placed on the traffic history.

12. In conducting the Internal, Review the delegate set out the history of Mr Malas’s firearms licencing and made findings about certain administrative events.

13. In concluding the Internal Review, the delegate considered the evidence supplied by Mr Malas, but having taken that into account concluded that they were :

..not satisfied that it is in the public interest for you to continue to hold a firearms licence because I believe that your behaviour demonstrates that you do not have the proper regard to laws and regulatory schemes which seek to ensure public safety. Accordingly, I believe that the revocation of your licence is the correct and preferable decision at this time.

14. On this basis like the initial decision maker the delegate on review had revoked the licence in the basis of cl 20 of the Regulation. That provision provides:

20 Revocation of licence—licence not in the public interest

The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

15. On 12 January 2023 Mr Malas lodged his administrative review application with the Tribunal. The Internal Review decision of 9 January 2023 being the matter currently before the Tribunal.

Jurisdiction

16. The Commissioner had revoked Mr Malas’s Firearms Licence application on the basis of cl 20 of the Regulation, which is set out at [14] above.

17. Section 75 of the Firearms Act provides that a person aggrieved by any of the seven listed actions of the Commissioner can apply to the Tribunal for administrative review of that decision. The third matter listed at s 75 concerns the revocation of a licence. Relevantly the section provides:

Part 8 Applications to Civil and Administrative Tribunal

75 Administrative reviews by Civil and Administrative Tribunal of certain decisions

(1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions—

(a) the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person,

(b) a condition imposed by the Commissioner on a licence or permit issued to the person,

(c) the revocation of a licence or permit issued to the person (other than a revocation on the basis that the holder of the licence or permit is subject to a firearms prohibition order or an apprehended violence order),

(d)..

(e)…

(f)…

(g)…

(Emphasis added)

18. The Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides:

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

19. The Tribunal has jurisdiction under the Firearms Act as noted at [17] above.

20. As noted from the section above, an application under s 75 of the Firearms Act is an administrative review. The Tribunal’s function on review under section 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

Administrative Review by the Tribunal

21. The parties agree that Mr Malas filed his application for Administrative Review on 12 January 2023 being the third day after receipt of notice of the Internal Review Decision. The application to the Tribunal was clearly within the 28 day period provided to lodge an application for Administrative review. Therefore the Tribunal has jurisdiction to hear the matter having regard to s 75 of the Firearms Act 1996.

Applicant’s written evidence

• Exhibit ‘A-1’. Applicant’s evidence bundle filed 17 April 2024 including signed letter to Tribunal (undated) copy of material submitted on internal review and character references and Sydney Road Safe report giving outcome of driving behaviour rehabilitation courses.

• Exhibit ‘A-2’: signed statement of B Malas dated 7June 2024.

• The applicant also filed and served written submissions and his Solicitor made submissions in reply at hearing.

Respondent’s written evidence

• Exhibit ‘R-1’ Documents filed under s 58 ADR Act (128 pages) filed 12 March 2024.

• Exhibit ‘R-2’ Affidavit of S Cooke affirmed 7 May 2024 and open exhibit.

• Exhibit ‘R-3’ Respondent‘s Evidence Bundle (83 pages) including USB data file of Police body worn video filed 31 May 2024.

• The commissioner also filed detailed written submissions and closing submissions.

22. Mr Malas was represented by Solicitors and the Commissioner was legally represented. Both sides also made oral submissions at hearing at the conclusion of the evidence.

23. Mr Malas was subject to brief cross-examination at hearing. His matter was heard with the related administrative review of Mr Mussa Dadoun who was a licensed firearms user who was present at the Rock Forest shooting group. Mr Dadoun and Mr Malas were represented by the same Solicitor and the parties agreed that in effect the matters be heard concurrently. However there was separate evidence as well as an overlap of evidence which applied to both applications.

24. In addition the Commissioner relied on confidential evidence in both proceedings which was dealt with at the conclusion of the open sessions by way of a brief confidential session. The existence of confidential evidence was not itself confidential to the applicant and his Solicitor, only the nature and detail of that evidence. We address this in further detail below and also in confidential reasons.

Mr Malas’s evidence at hearing

25. In contrast to Mr Dadoun, Mr Malas’s time in the witness box was brief. In evidence in chief Mr Malas adopted his statements in Exhibit ‘A-1’ and Exhibit ‘A-2’ as true and correct.

26. In cross examination he was asked about when he leant his firearms to Mr Dadoun and Mr Skaf on 7 November 2022 whether he knew that they would be used by others who were unlicensed individuals. Mr Malas said he did not know this was the case.

27. When asked whether he had thought that the might have been used by such individuals at any time when he agreed to lend the firearms Mr Malas answered ‘no’.

28. The Tribunal questioned Mr Malas in accordance with its powers under s 38 of the Civil and Administrative Tribunal Act 2013. The witness was asked about the lending of his firearms to Mr Skaf and Mr Dadoun. Mr Malas said that they had asked him for them to use as they ‘wanted to try them out’. He observed that there were ‘both shooters’ which the Tribunal took to mean that he knew that they were both licenced for those types of firearms.

29. Mr Malas said that he had not asked them too many questions beyond that as he did not wish to interfere in their business and that it was ‘none of his business’ in the context that they had asked and he had agreed. Mr Malas said that Mr Skaf and Mr Dadoun had said that they would try them out at some property somewhere, which he took to mean a rural property.

30. Mr Malas told the Tribunal that he did not ask any other questions such as who else was attending. He said that the firearms were initially returned after two days from being seized.

Confidential Evidence of the Respondent

31. As noted at [21] above the Commissioner relied upon confidential evidence the existence of which was not confidential. The contents of that evidence were explored during a confidential session whereby the Commissioner’s representative took the Tribunal through the confidential evidence.

not for publication

32. (confidential evidence)

33. (confidential evidence)

34. (confidential evidence)

End of Confidential paragraphs

Applicant’s submissions

35. Mr Kable who appeared for Mr Malas submitted that the case against Mr Malas was all about rumour and innuendo. He submitted that there was no sound evidence to support the finding of the Commissioner that it was not in the public interest for Mr Malas to hold a firearms licence.

36. It was submitted that there was no direct evidence of wrongdoing. Other licenced firearms users (Ibrahim and Dadoun) who provided references in the proceedings, had also leant firearms which were ultimately located during the Rock Forest incidents and search. Both of these licenced users had their licences initially suspended and revoked but it was submitted were successful on Internal Review at having the licences re-instated.

37. It was also submitted that Mr Malas was not present at the Rock Forest event and as such has no responsibility for any matters that transpired there. It was submitted that as a licenced firearms user with a Category AB licence Mr Malas was entitled to lend his firearms to any person similarly authorised (i.e. the holder of a Category AB licence).

35. It was further submitted at [16] of the post hearing submissions filed on behalf of Mr Malas and the other proceedings (Mr Dadoun) ‘that neither applicant has previously been requested to supply any information in relation to allegations of association with individuals with a criminal history. It is certainly not a question in a firearms licence application’.

36. Mr Malas acknowledged his driving record and had voluntarily completed an additional traffic offender program and has since that time not infringed. It was submitted that he cannot be held accountable for the actions of others when he has validly lent his firearms to authorised persons. His evidence supported a maturing position whereby he lives with his spouse and child and is furthering his life and community through his trade.

37. In the above context it was submitted that Mr Malas did not pose a real or substantial risk if his licence was restored. It was submitted that the extensive time that has elapsed since the licence was revoked and the process of trying to obtain restoration of the licence has taught Mr Malas many valuable lessons about the significance of firearms ownership and possession.

Respondent’s submissions

41. The respondent submitted that the Tribunal should dismiss Mr Malas’s application as he is no longer a fit and proper person to hold a firearms licence and that it was not in the public interest for him to hold a licence due to multiple contravention of firearms provisions. In addition to contraventions of the firearms provisions the commissioner submitted that Mr Malas’s association with individuals including his father Belal Malas, who was involved directly in the incident at the Rock Forest property, individuals with significant criminal antecedents.

42. Submissions prior to hearing focused on non compliance with the genuine reasons provisions such as membership and attendances at club events. Three breaches of this nature were identified. The first breach concerned a failure to participate in the required number of shooting activities in 2018/2019, 2019/202, 2021/2022, 2022/2023 and 2023/2024.

43. The second breach concerned a failure to attended hunting club events 2018-2024 inclusive as hunting / vermin control was nominated as the sole ground for the genuine reason for having a licence.

44. The third breach concerned the failure to notify the Commissioner within 14 days of not having or being able to establish a genuine reasons for holding a licence.

45. In respect of traffic history the Commissioner submitted that the repeated breaches were a relevant consideration concerning public interest grounds and sufficient themselves to refuse the application. Risks to public safety and Mr Malas’s own safety by breaches of the road rules illustrated that he had a disregard for public safety, especially the two infringements of exceed speed limit by more than 30 kmph.

46. It was submitted that in lending the firearms to Mr Dadoun, Mr Malas failed to take all reasonable precautions to ensure that his firearms would be kept safe and that unauthorised persons would not possess the firearms during that period. In this regard the Commissioner submitted that breaches by Mr Dadoun extended to breaches by Mr Malas as the Dadoun failures were sourced back by Mr Malas’s failure to ensure that Mr Dadoun could ensure that the firearms were only used lawfully and did not come into the possession of unauthorised persons.

47. In this regard the Commissioner asserted various breaches including breaches of s 19 (2) (b) of the Firearms Act:

19 Conditions of licence(cf 1989 Act ss 21, 28, APMC 4 (b), 9 (c))

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

(2) Without limiting subsection (1), each licence is subject to the following conditions—

(a),

(b) the licensee must not permit any other person to possess or use any firearm in the licensee’s possession if that other person is not authorised to possess or use the firearm,

48. Further breaches of s 7A were submitted in addition to a submission that s 24 (2) (b) (i) provided a ‘further basis for a revoking of the licence due to a breach of the regulations’. Those provisions provide:

7A Offence of unauthorised possession or use of firearms generally

(1) A person must not possess or use a firearm unless the person is authorised to do so by a licence or permit.

Maximum penalty—imprisonment for 5 years.

(2) Without limiting the operation of subsection (1), a person who is the holder of a licence is guilty of an offence under this section if the person—

(a) uses a firearm for any purpose otherwise than in connection with the purpose established by the person as being the genuine reason for possessing or using the firearm, or

(b) contravenes any condition of the licence.

24 Revocation of licence(cf APMC 6, 1989 Act s 36, 1990 Reg cl 27)

(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.

(1A)…

.

(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, or

(b) if the licensee—

(i) supplied information which was (to the licensee’s knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or

(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention,

(Emphasis added)

49. It was also submitted that it would not be in the public interest for Mr Malas to hold a licence because of his association with various persons with significant criminal histories. Reference was made to Mr Malas’s father and other family members having significant criminal histories including for some the presence of firearms offences on their record, and that with these ‘associations’ the Tribunal would not be able to be satisfied that there was virtually ‘no risk’. It was also submitted that it was clear that unlawful activity was being carried out at the Rock Forest property.

50. In post evidence submissions the Commissioner referred to the evidence sought by the Tribunal of Mr Malas at hearing as set out at [28]-[30] above.

51. They submitted that it was ‘highly concerning and not reflective of a person fit and proper to hold a firearms licence that Mr Malas considered it “none of his business” to ask the person to whom he had lent or proposed to lend a number of his own firearms whether anyone else would be attending the locations at which the firearms were to be used’.

52. The Commissioner submitted that this evidence showed a significant lack of insight into the responsibilities of being a responsible firearms owner and as a result he was now considered as not being fit and proper to hold the licence.

53. It was also submitted that the import or benefit of a recent (February 2024) Firearms Safety Course was lost on Mr Malas as his answers under questioning did not show an appropriate undertraining of the firearms regime.

54. Further submissions were made in respect of Mr Malas’s evidence in Exhibit ‘A-2’ that the criminal histories of others were either not known to him or if known then they were of no concern to him. The Commissioner submitted that such a position raised concerns and that the lending of his firearms to Mr Dadoun and Mr Skaf would cause significant concern to the public.

Consideration

55. The decision under review is based upon the notion that Mr Malas having access to firearms would be contrary to the public interest.

56. I note that Deputy President Hennessy observed in the case of Livadaru v Commissioner of Police [2008] NSWADT 160 that in reference to the public interest at [54]:

In considering the public interest, regard must be had to the underlying principle of the Act. ….

57. As has been previously observed, the underlying principle of the Act concerns public safety.

58. In respect of the public interest I note that such matters include public protection, public safety and public confidence in the administration of a licensing system. The Firearms Act 1996 identifies a purpose to deal with public safety at s-3 (1) (a) of the Act.

59. Section 3 of the Firearms Act 1996 provides:

3 Principles and objects of Act

(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

60. The Appeal Panel of the ADT in the case of Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16 discussed how the Tribunal should approach matters of public interest in licensing regime reviews.

28. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 [at 33] the 'public interest' is:

. . .

33. The 'public interest' allows, we consider, for 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. In this case the public interest case was a very strong one. The public would, we believe, be quite concerned that a man with a serious history of violence, including violence using weapons, for which he served several years' imprisonment might now be entrusted with a pistol.

61. In the case of Rose v Commissioner of Police (No 2) [2022] NSWCATAD 26 the Tribunal observed that the ‘burden’ that an applicant is required to overcome on this issue is not taken to be insurmountable. At [56] when referring to the case of Martin, the Tribunal observed:

1. It is not the case, as indicated in Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] to [66], that an Applicant is required to discharge an almost impossible burden of proving a near-absolute negative.

2. Rather, as stated in Webb at [32] when considering the question of public safety:

"In determining this issue it is my view that 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".

62. The crucial issue in these proceedings concerning whether Mr Malas should continue to hold a firearms licence relates to the public interest. In that regard significant concern is raised around Mr Malas’s actions in lending his firearms to Mr Dadoun and Mr Skaf.

63. The Commissioner submitted that the circumstances of Mr Malas’s decision to lend the firearms enlivened a valid concern that he showed a significant lack of insight into the responsibilities of being a responsible firearms owner. Further the Commissioner’s case also rested on a submission that Mr Malas had failed to take all necessary and reasonable precautions to ensure that his firearms would neither be used inappropriately or come into the possession of persons not authorised to access them.

64. The Tribunal at the joint hearing viewed the Police Body Worn footage of their attendance at the Rock Forest property on 8 January 2023. As Mr Malas was not present at that incident and on his own evidence had very limited knowledge about the matter the footage concerns him indirectly rather than directly.

65. The evidence adduced from that footage mainly related to the other application of Dadoun. However the evidence did identify potential breaches of the firearms licencing regime in respect of various firearms (including firearms owned by Mr Malas). The Commissioner submitted that this was significant. Mr Malas submitted that it was not significant as (a) no breaches had formally arisen and (b) the relevant firearms were not seized that day but in the day or days following 8 January 2023.

66. In respect of the submission that Mr Malas should have asked more questions or better satisfied himself as to the circumstances of the intended use, I note that as a registered firearms user he would have been aware of the safe handling, storage and use provisions. Further, with that knowledge and the knowledge that both Mr Skaf and Mr Dadoun were registered firearms licence holders, he would have reasonably believed that they were also aware of the safe storage, measures when transporting firearms, safe handling and use and the need to ensure that they did not come into the possession of persons not authorised to use them.

67. Even if Mr Malas had pressed Mr Skaf and Dadoun further as to such matters it seems unlikely that they would have made any suggestion that they were being borrowed to use illegally in some manner.

68. Whilst I accept the Commissioner’s submission that as a firearms user Mr Malas could have inquired further, I also accept that as Mr Skaf and Dadoun were authorised to use firearms lawfully, there was no requirement to inquire further. Whilst there is no evidence on this point it could be accepted that unless Mr Skaf and Dadoun admitted that they were going to breach firearms provisions when shooting on a rural property (which seems unlikely) what other practical matters could Mr Malas taken to ensure that public safety could not be compromised.

69. It seems unlikely that he would have obtained information that would cause him to reconsider his consent to lend the firearms. Such information would not have been in the interests of Mr Skaf and Mr Dadoun so would have been unlikely to be forthcoming. No evidence was adduced on this aspect. Whereas if Mr Malas did hold concerns then he should have ensured that those concerns were adequately addressed prior to lending the firearms or withdrawing his offer. There was however no evidence that he held any concerns.

70. Mr Malas’s oral evidence was that in response to my question: ‘at the time of the conversation you had with Mr Dadoun, were you aware anyone else would be attending?’. Mr Malas answered that: ‘Dadoun and Skaf would be using them’ (which was agreed by both parties to mean the firearms).

71. In cross examination on this point it was put to Mr Malas that: ‘You knew when you gave the firearms (date) they would be used by other unlicensed individuals’. Answer ‘No’. Q ‘You knew that they might be used’ Answer: ‘No’.

72. In my view the evidence of Mr Malas is quite clear on this issue. There appears to be no evidence that he believed that there was anything untoward about the request noting that both men were licenced at that time.

73. In respect of the evidence concerning his associations as referred to at [54] above, Mr Malas provided a signed statement in Exhibit ‘A-1’ and direct evidence in response to the Commissioner’s submissions on the issue – Exhibit ‘A-2’. I accept that evidence that he lives his own life, as a married man with a family and his own small business as a tradesperson.

74. The fact that Mr Malas is related by blood to his father and others is in my view adequately addressed in the two signed statements which were tendered without objection. It would be obvious in such circumstances that he would have some knowledge of family member’s criminal antecedents, but that does not in and of itself make Mr Malas not fit and proper to hold a licence, or that holding a licence would be contrary to the public interest.

75. I note that the Commissioner issued Mr Malas with a licence based on the relevant criteria. These ‘association matters’ do not form specific application criteria nor are they matters that were unknown to the Commissioner at the time that the licence first issued to Mr Malas. I also note that Mr Malas was not cross examined on these matters.

76. Whilst I appreciate the concerns that the Commissioner holds I believe that such concerns are sufficiently addressed by Mr Malas’s unchallenged evidence, being that he is his own man, not directed by others and lives a life largely separate from his birth family other than religious and cultural gatherings.

77. His evidence about seeing his uncle at the celebration of Eid was in my view both credible and relevant evidence to illustrate that there is some association but that it is minor and benign. Whilst others may have significant criminal histories such evidence was not on my assessment sufficient to displace matters in Mr Malas’s favour.

78. In respect of the genuine reason counts raised by the Commissioner, I believe that these matters are significantly cured by the permission to shoot authorities tendered in the Internal Review process and also in evidence before the Tribunal. I note that there were a number of regulatory failings associated with the genuine reason grounds. I accept the Solicitor’s submission that Ms Malas has now been without a licence for a lengthy period (now some 20 months) and has learnt a significant lesson during that time and through the extensive steps that he has taken to have his licence restored.

79. Whilst not determinative on the matter I note that Mr Malas was not breached for any offences arising from or related to firearms possession, storage or use. Mr Malas has no criminal history whatsoever. Whilst his traffic record is not good, neither is it so poor as to demonstrate a flagrant disregard for the law sufficient to make me conclude that he could not be entrusted to maintain safe and continuous control over firearms in his possession at all times by reference to the licencing regime.

80. I note that whilst he was required by the Courts to undertake a traffic offenders course, he has subsequently undertaken a further course of his own volition.

81. I note that whilst not the main basis for the decision for review before the Tribunal, the notion of ‘fit and proper’ is often referred to in the lead case of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and the various ADT and Tribunal cases that have relied on Bond. The case of Bond provides the general principle that fitness and propriety are not to be narrowly construed or confined and can extend to any aspect of fitness and propriety that is relevant to the public interest.

82. This position is consistent with the idea of applying the concepts in a broad manner to the available evidence and having regard to the objects and purpose of the regime. In this instance the regime is designed to protect the public as a primary consideration and for this reason under the Firearm Act access to and use of firearms is not a right but a privilege.

83. In Artridge v Commissioner of Police NSW Police Force [2021] NSWCATAD 188, as Senior Member Ransome observed at [21] – [27] the public interest question is the main task facing the Tribunal in this type of review.

The public interest

21. What is meant by the term “the public interest” has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court stated at 681:

“The purpose of the reference to '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 Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation.”

22. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] the Appeal Panel said that:

“The ‘public interest’ allows, we consider, for 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.”

23. In Cusumano v Commissioner of Police [2001] NSWADT 50 at [23] Deputy President Hennessy stated:

“There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.”

24. Importantly, s 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community’s interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at [27-28] Deputy President Hennessy said that in terms of public safety:

27 ...The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.

28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.”

25. That case dealt with whether the applicant was a “fit and proper person” to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at [130] – [134].

26. The question of risk is not, however, to be approached in an absolute or mechanistic way, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [64] – [66]; Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315 at [62]- [64]. The question is whether there is in all the circumstances a real and appreciable risk to the public: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 at [74]; Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124 at [58].

27. It has also been stated that the public interest requires that all licensees be aware of, and comply with, the legislative requirements: Cook v Commissioner of Police [2003] NSWADT 30 at [34]. Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police [2005] NSWADT 75 at [25].

84. It has been well established that the legislation and precedents indicate that the discretion is to be applied consistent with the purpose of the Firearms Act, one of which is to ensure public safety in accordance with s 3 (1) (a) of that Act. However it is conceded that the purpose of the licencing regime is protective not punitive and all endeavours are directed towards maintaining and enhancing public safety.

85. In balancing those risk matters with the objects and the overall protective purpose of public safety from s 3 of the Firearms Act I am satisfied that on the evidence and material before the Tribunal, it would be in the public interest to set aside the revocation of the licence.

86. In my view the totality of the evidence establishes that the major concerns of the Commissioner and the necessary basis for revoking the licence have fallen away on assessment of the available evidence during the administrative review. Whilst with hindsight lending the firearms to Mr Skaf and Dadoun potentially allowed for a more significant event at Rock Forest in January 2023, Mr Malas’s evidence satisfies me that he was not aware of any potential for unauthorised use of those (or other) firearms, nor was he aware that any illegal activity was to occur or likely to occur in such a setting.

87. However whist Mr Malas had no knowledge of this matter nor was it likely on my assessment that he would ever have obtained prior knowledge or warning of such matters. Having made that finding I note that the unauthorised use of firearms by licenced persons and use by unlicensed persons if occurring, is a very serious and significant matter. On the face of it if established such an event has a significant potential to impact on public safety.

88. The appropriate approach would be that the Tribunal sets aside the decision.

Conclusion

89. Because of the findings that I have made, it is appropriate to set aside the decision of the Commissioner and that the Category AB Licence which issued on 30 March 2020 be reinstated. As this is an administrative review matter, it therefore follows that the correct and preferable decision is to set aside the decision of the respondent.

90. I therefore make the following order:

Orders

1. The decision to revoke the Applicant’s Category AB Firearms Licence is set aside.

2. The Category AB Licence which issued on 30 March 2020 is to be reinstated

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: 23 September 2024