Chudleigh v Commissioner of Police

[2022] NSWCATAD 267

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Chudleigh v Commissioner of Police [2022] NSWCATAD 267

Hearing dates:

23 June 2022

Date of orders:

16 August 2022

Decision date:

16 August 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

(1) The decision under review is set aside.

(2) The decision is made that the Applicant’s application for a category AB firearm licence is granted.

Catchwords:

ADMINISTRATIVE LAW – firearms licensing – residency – genuine reason – public interest – fit and proper person.

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Firearms Act 1996

Firearms Regulations 2017

Cases Cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254

Burditt v Joslin [1981] 3 All ER 203

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, NSW Police Force v Lee [2016] NSWCATAP 234

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

Cooper v Commissioner of Police [2022] NSWCATAD 195

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

Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70

Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218

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

Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368

Nelson v Commissioner of Police [2012] NSWADT 84.

Pang v Commissioner of Police [2009] NSWADT 11

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

Smoker v Pharmacy Restructuring Authority (1994) 125 ALR 157.

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

Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156

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

Category:

Principal judgment

Parties:

Andrew Chudleigh (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
Hartmann & Associates (Applicant)
Makinson d’Apice Lawyers (Respondent)

File Number(s):

2021/00347458

Publication restriction:

Nil

Reasons for Decision

Introduction

1. This is an application by Mr Andrew Chudleigh ("the Applicant") for review of a determination by a delegate of the Commissioner of Police ("the Respondent" or “the Commissioner”) to refuse his application for a category AB firearms licence under the Firearms Act 1996 (NSW) ("the Act"). The refusal was on two grounds:

1. that the Commissioner was not satisfied that the Applicant was a resident of New South Wales or was about to become a resident of the State; and

2. that it is not in the public interest for the Applicant to hold a firearms licence.

Background

2. The Respondent is responsible for assessing applications for licences to possess and use firearms, and approving, refusing, suspending, revoking, and renewing firearms licences.

3. The Applicant was first issued a Category AB licence in June 2002. He held the licence continuously until 30 June 2021. In May 2021, he submitted a renewal application for the licence. In August 2021, a delegate of the Commissioner refused the renewal application. That refusal was based on the Applicant’s disclosure that:

• he had been living in the Northern Territory for the previous 3 years;

• he intended to return to NSW soon, but that he was waiting to sell his house in the Northern Territory;

• his firearms were stored at an address that did not have a permanent resident, but his family members would visit sometimes.

4. The Applicant sought an internal review of the refusal decision and provided submissions in support of that application. The Respondent requested that he confirm his new NSW residential address as well as the address where his firearms are stored. He advised the Respondent:

The reason stated is that I am no longer a NSW resident.

I am currently in the process of moving back to NSW which has been delayed due to impacts relating to Covid-19.

I am scheduled to leave Darwin this Thursday 23/9/2021 and should arrive at our new house in NSW by Friday 1/10/2021. I will then be a NSW resident again.

This should satisfy the reason stated above for the refusal, so am hoping to be able to renew my NSW Firearms Licence as planned.

5. The Applicant subsequently advised the Respondent of his new residential address as well as a separate address where his firearms were to be stored.

6. The Respondent’s decision was affirmed on internal review. The delegate found that the Applicant had stored his firearms in an uninhabited dwelling, contrary to clause 28B of the Firearms Regulations 2017 (“the Regulations”), and failed to notify the Firearms Registry of his change in place of residence, contrary to section 69 of the Act.

7. The Applicant has applied to the Tribunal for external review of the decision.

The issue for determination

8. 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

9. 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”).

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

11. 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.

12. 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.

Applicable legislation

13. Section 9 of the ADR Act provides that the Tribunal has jurisdiction regarding 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.

14. The Tribunal has jurisdiction regarding a number of firearms licensing issues under section 75 of the Act, including review of a decision by the Commissioner to refuse an application for a firearms licence. This application is made under section 75 of the Act and the ADR Act.

15. 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.

16. 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.

17. 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.

18. Clause 28B of the Regulations provides:

28B Requirements relating to safety and storage

1. The holder of a licence or permit must not store a firearm in a dwelling unless it is an inhabited dwelling.

Maximum penalty—50 penalty units if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or pistol, or 20 penalty units in any other case.

1. The holder of a licence or permit must not store a firearm on premises other than a dwelling unless—

   (a)   the premises are in a proximity to an inhabited dwelling that allows the premises to be easily observed by the holder of the licence or permit, or by a person on behalf of the holder of the licence or permit, from the inhabited dwelling, or

   (b)   the holder is a licensed firearms dealer and the premises are commercial premises from which the holder carries on the business of, or at which the holder carries on activities as, a firearms dealer, or

   (c)   the requirements of subclause (3) are complied with.

Maximum penalty—50 penalty units if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or pistol, or 20 penalty units in any other case.

1. For the purposes of subclause (2)(c), the requirements are as follows—

   (a)   the firearm must be—

   (i)   stored in a safe of an approved type, and

   (ii)   fitted with a trigger or barrel lock that prevents the firearm from being discharged, and

   (iii)    secured individually on, or in, a locked device within the safe,

   (b)   the safe must be fitted with an alarm of an approved type that is monitored off-site,

   (c)   the premises on which the firearm is stored must have an intruder alarm and duress facilities that are monitored off-site and are of an approved type.

2. In this clause—

inhabited dwelling, in relation to the storage of a firearm by the holder of a licence or permit, means—

(a)   a dwelling that is the principal place of residence of a person, whether or not the person is the holder of the licence or permit, or

(b)   a dwelling at which a person resides while the firearm is stored there, whether or not the person is the holder of the licence or permit.

permit means a permit that authorises the possession of a firearm.

19. 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. In determining this Application, the objects and intentions of the Act must be readily kept in mind. Section 3(1) of the Act provides:

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

...

20. The underlying principles of the Act emphasise that that possession and use of firearms is a privilege that is conditional on public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety.

21. As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368 at paragraph [1], the power to grant an application for a firearms licence is tightly constrained. In particular, significant emphasis is placed upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Public safety is to be given paramount consideration.

Fit and proper person

22. 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.

23. 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].

24. 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].

25. 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.

26. 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.

27. 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.

28. 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

29. 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.

30. 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:

1. 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."

   31. The “public interest” allows issues going beyond the character of the Applicant to be considered. 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.

   32. “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 “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.

   33. In considering the public interest, regard must be had to the underlying principle of the Act. 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. The Tribunal must give proper, genuine, and realistic consideration to each of the relevant matters. A decision maker should not shy away from an exercise of that discretion merely on the grounds that the licensee may suffer hardship and or inconvenience: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at paragraph [22].

   34. The public needs to be confident that those who are afforded the privilege of a firearms licence will comply with the legislative requirements.

   35. As the Appeal Panel said in Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 at paragraphs [24] to [25]:

2. The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the “overriding need to ensure public safety”: Firearms Act s 3(1)(a). Public safety is improved by “imposing strict controls on the possession and use of firearms” and by “promoting the safe and responsible storage and use of firearms”: Firearms Act s 3(1)(b). The objects of the Act include “to establish an integrated licensing and registration scheme for all firearms;” “to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;” and “to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms”: Firearms Act, s 3(2)(b), (c) and (d).

1. In that statutory context it is uncontentious that a relevant consideration is the applicant’s previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant. ...

   36. 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: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at paragraph [23].

   37. 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 considered. 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.

A resident of the State

38. The Commissioner’s delegate refused the Applicant’s licence application on the basis that the Applicant was not a resident of NSW.

39. Section 11(3)(d) of the Act prescribes that the Commissioner must not issue a licence unless satisfied that the Applicant is a resident of New South Wales or is about to become a resident of the State.

40. In Pang v Commissioner of Police [2009] NSWADT 11 Judicial Member Molony stated at paragraphs [23] to [28]:

1. There is no definition of the word ‘resident’ in the Firearms Act 1996. That being the case the words ‘resident of the State’ are to be interpreted in accordance with their ordinary and current meaning, unless there is something in the context which indicates an intention to depart from that meaning: Smoker v Pharmacy Restructuring Authority (1994) 125 ALR 157.

2. The Macquarie Dictionary defines resident as:

   noun 1. someone who resides in a place

3. ‘Reside’ is defined thus:

   1.   to dwell permanently or for a considerable time; have one's abode for a time: he resided in Box Hill.

4. On an ordinary understanding the meaning of the word resident, it is my view that Mr Pang, living as he does in Hong Kong, is not a resident of NSW. The fact that he may have the immigration status of permanent resident of Australia and holds a subclass 155 visa does not make him a resident of NSW. He does not live here and has not done so for a considerable time.

5. That he owns a property in NSW in which he intends to reside in the future does not make him resident in the State. That property is presently let to tenants. His ownership of the property demonstrates no more than that he owns property in NSW. It does not demonstrate that he has his home here, or lives here. Indeed, all the evidence points to him having a home in Hong Kong and living there for some time. This conclusion, I note, is consistent with the decision in Burditt v Joslin [1981] 3 All ER 203, to which I referred the parties. There Donaldson LJ and Bingham J held the ownership of property, which did not carry with it a right of occupation because it was let to tenants, was not sufficient to show that an applicant for a firearms certificate, under section 26 of the Firearms Act 1968 (UK), resided within the area in which he had applied for a certificate.

6. I consider this interpretation to be consistent with and in accordance with object of the Firearms Act 1996.

   41. At paragraph [30] of Pang v Commissioner of Police he stated:

7. Central to the Commissioner’s submission was the use of the words ‘reside on permanent basis in the State’ in subsection (1), which the Commissioner argued was inconsistent with the residence requirement in section 11(3)(d). I disagree. In my view when examined the context in which the words ‘reside on permanent basis in the State’ are used in section 27, it rapidly becomes apparent that they are being used to achieve a different object to that sought to be achieved in s 11.

   42. Having determined that Mr Pang was not a resident of NSW Judicial Member Molony then considered whether was Mr Pang about to become a resident of NSW. He stated from paragraph [40]:

8. … the assessment of whether Mr Pang was about to become a resident had to be determined in the light of all the circumstances, including the nature and length of a firearms licence. ...

9. On the basis of the information before the internal review officer at the time the decision was made I am, however, inclined to agree with the result he reached. I do not think that it can be reasonably said that a person who is planning to move to the state in seven or more months time is about to become a resident.

10. That, however, is not the end of the matter. In making my determination I am required to have regard to all the material now before me. Now, I have evidence that Mr Pang has booked a flight to Sydney …, less than three months from now. I have no reason to doubt that he is about to become a resident of NSW.

    43. I agree with the approach that Judicial Member Molony adopted in Pang v Commissioner of Police in relation to the issue of whether an applicant satisfies the requirements of section 11(3)(d) of the Act. He adopted a similar approach but with a different outcome in Nelson v Commissioner of Police [2012] NSWADT 84.

The Respondent’s case

44. The Respondent submits that the decision to refuse the Applicant’s licence application pursuant to section 11(3)(d) of the Act was correct as the Applicant was not a resident of the State and that he was not about to become a resident of the State.

45. The Respondent also points to a number of other issues which she contends are relevant to the issue before the Tribunal. The Respondent contends that the Applicant has contravened the following provisions of the Act and Regulations:

1. Section 69 of the Act, which prescribes that the holder of a licence must notify the Commissioner with particulars of their new place of residence within 7 days after a change occurs.

2. Clause 16 of the Regulations, which prescribes that the holder of a licence must notify the Commissioner of any change in a particular stated in the licence, including a change in genuine reason for which the person was issued with a licence.

3. Clause 28B of the Regulations, which prescribes that the holder of a licence or permit must not store a firearm in a dwelling unless it is an inhabited dwelling.

4. Section 70 of the Act, which prescribes that a person must not, in or in connection with an application under the same Act or the Regulations, make a statement or provide information that the person knows is false or misleading in a material particular.

46. In support of this contention the Respondent points to the following:

• In July 2021, the Applicant informed the Firearms registry that he had been living in the Northern Territory for three years and that he was intending to return to NSW soon but was waiting to sell a house.

• the Applicant's NSW drivers licence was cancelled in March 2015, because the Applicant had ‘moved interstate’.

• In September 2021, in support of his internal review application, the Applicant advised the Firearms Registry that he had been living in the Northern Territory and that he anticipated that he would arrive at back in NSW by 1 October 2021.

• In November 2021, the Applicant advised the Firearms Registry of his NSW residential address. However, he did not provide evidence of this residential address.

47. The Respondent also submits that the Applicant does not satisfy the criteria for the genuine reasons which support his licence. The Applicant relied on two purported genuine reason, namely Recreational Hunting/Vermin Control – Permission to shoot and Animal Welfare – Animal Handler.

48. In support of his genuine reason of Recreational Hunting/Vermin Control – Permission to shoot, the Applicant relied on a declaration of the owner or occupier of a property that they had given permission for the Applicant to shoot on that property. However, the respondent submits that the Applicant does not meet the criteria for holding a licence for the genuine reason of Animal Welfare – Animal Handler, as it is not evident that he is actually employed as a farm hand as he had previously advised.

49. The Respondent does not dispute the fact that the Applicant has permission to shoot, which can appropriately support his genuine reason of Recreational Hunting/Vermin Control. However, the Respondent submits that this legitimate reason is put in doubt given that the Applicant appeared to be residing in the Northern Territory from about March 2015 to about October 2021. The Respondent also submits that it is apparent that vermin control on the identified property is not reliant on the Applicant holding a firearms licence.

50. The Respondent submits that the Tribunal cannot be satisfied that the Applicant has a genuine reason for possessing or using a firearm. The Act makes it clear that firearm possession and use is a privilege and therefore the Applicant’s desire to hold a firearms licence is not a sufficient reason to grant the Applicant this privilege.

51. The Respondent also submits that the Applicant has contravened the Act and the Regulations and that, given that the Applicant has previously held a firearms licence, this conduct can be considered. The Respondent submits that the Tribunal can consider circumstances that would amount to a breach of the firearms legislation, regardless of whether or not the applicant has been convicted of an offence relating to any such breach. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70 at paragraph [30].

52. As noted by the Appeal Panel in Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55 at paragraph [20], the Tribunal is entitled, and duty bound, to take into account any relevant material going to the question of the correct and preferable decision in connection with the particular administrative discretion.

53. The Court of Appeal in Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31 noted at paragraph [63] that:

There is no reason in principle why an administrative decision maker should not take into account evidence of matters that were the subject of criminal charges that did not lead to convictions. The point correctly made by the Appeal Panel in Mercer is that any available material disclosing the reasons why there was no convictions may shed light on the weight to be given to the evidence.

54. In regard to the alleged contravention of section 69 of the Act the Respondent submits that the Applicant failed to notify the Commissioner of his change in address following his move to the Northern Territory.

55. In regard to the alleged contravention of clause 16 of the Regulations the Respondent submits that the Applicant failed to notify the Commissioner of his change in genuine reason. As noted, the Applicant relied on the purported genuine reason of Animal Welfare – Animal Handler when he was employed as a farm hand. He failed to notify the Commissioner when he ceased to be employed in that capacity and that the genuine reason was no longer applicable.

56. In regard to the alleged contravention of clause 28B of the Regulations the Respondent submits that the Applicant stored his firearms at an uninhabited dwelling. This does not meet the definition for safe storage under clause 28B of the Regulations. The Applicant accepts that he has contravened the Regulations in this regard and that this contravention occurred from 2017, when the Regulations were introduced, up until his firearms licence was refused in August 2021. 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 also be placed on the contravention of clause 28B of the Regulations.

57. In regard to the alleged contravention of section 70 of the Act the Respondent submits that the Applicant provided false declarations in applications to renew his firearms licence lodged on 28 June 2016 and 11 May 2021. In those applications the Applicant declared that his current residential address and safe storage address was in NSW. However, as noted, the Applicant’s NSW drivers licence was cancelled in March 2015 for the reason that he had moved Interstate. The Respondent submits that this suggests that by July 2021, the Applicant had actually been living in outside of NSW for 6 years.

58. The Respondent submits that the Applicant deliberately neglected to update his residential address to mislead the Firearms Registry and retain his NSW firearms licence. The Respondent further submits that the Applicant’s failure to provide accurate information as to his residential address shows that he cannot be trusted to honestly uphold the legislative scheme within which he is required to operate. The efficient operation of the firearms legislative scheme depends on applicants providing true and correct information in a comprehensible manner and the Firearms Registry being able to rely on the accuracy of information supplied by licensees and applicants.

59. The Respondent submits that significant weight must be given to this contravention.

60. It is submitted that the Applicant’s contraventions cannot be considered as merely ‘technical’ or innocent oversights. Rather, the Applicant’s actions display a careless disregard for and a lack of commitment to understanding the strict requirements of the firearms legislation. In the circumstances the Tribunal should find that these contraventions warrant the refusal of the Applicant’s firearms licence application. It would be contrary to the public interest for the Applicant to hold a firearms licence.

61. The Respondent further submits that the Applicant is not, a fit and proper person to have access to firearms and that he cannot be trusted to have possession of firearms without danger to public safety or to the peace for several reasons. In this regard the Respondent refers to the following alleged conduct:

• the Applicant provided inaccurate information as to his residential address on two firearms applications.

• in July 2021, the Applicant informed the Firearms Registry that he had been living in the Northern Territory for three years, suggesting that the Applicant had moved interstate at some time in or around 2018. However, the Applicant’s NSW drivers licence was cancelled in March 2015 and this implies that by July 2021, the Applicant had actually been living in outside of NSW for 6 years.

62. The Respondent submits that false statements directly reflect on a person’s honesty in regard to determining their fitness and propriety. It is submitted that the Applicant has a history of dishonest engagement with the firearms legislation and regulatory scheme and as such, the Tribunal cannot be satisfied that the Applicant is a fit and proper person to hold a firearms licence. The Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. In that regard, the Applicant’s past conduct is a significant guide in assessing likely future conduct: Cooper v Commissioner of Police [2022] NSWCATAD 195 at paragraph [60]; Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at paragraph [141].

63. It is further submitted that the Tribunal should place weight on the Applicant’s repeated contraventions of firearms legislation. It cannot be said that the Applicant’s contraventions of the firearms legislations are isolated incidents, nor can they be considered innocent mistakes. Rather, these contraventions show a pattern of concerning behaviour in which the Applicant has exhibited careless disregard for and a lack of commitment to understanding and upholding the strict requirements of the firearms legislation. At its highest, these contraventions demonstrate the Applicant’s willingness to deceive a public authority in order to retain his firearms licence. The Respondent submits that the history of non-compliance with the firearms legislation raises a significant doubt that the Applicant would improve his compliance should his licence be renewed.

64. The Respondent submits that given the totality of the evidence, the Tribunal cannot be satisfied that the Applicant poses virtually no risk to public safety and should find that he is not a fit and proper person to hold or continue to hold a firearms licence. Therefore, the correct and preferable decision is to affirm the decision to refuse the Applicant’s category AB firearms licence application.

The Applicant’s case

65. The Applicant relies on his own evidence. He provided a written statement, attended the hearing, gave evidence and was cross-examined.

66. His evidence is that:

• He has held a firearms licence continuously since 2002.

• Prior to March 2015, his principal place of residence was on a property near Frogmore NSW (“the property”).

• the property is his family's farm, and it is where he mostly used the firearms. He needed the firearms for feral animal control and animal welfare needs (i.e. to humanely dispose of injured livestock).

• the firearms were safely stored at the property. In 2013, the storage was inspected and passed the safe storage requirements. The keys to the safe were stored safely, and only his father, who is also a firearms licence holder, had access to the safe. His father holds a category ABC firearms licence.

• In March 2015 he relocated to Darwin. He always intended that the move was to be temporary and at some point, he would move back to NSW.

• He had no need to have or use firearms in Darwin and he did not change his firearms licence over to the NT. He intended to keep his firearms safely stored at the property.

• While he was located in Darwin, he moved between there and NSW.

• He visited the property frequently and he was under the impression that he met the residency requirements to maintain a NSW firearms licence because he had a family residence in NSW.

• He believed that he was doing the right thing by storing his firearms in NSW. He believed that it was unnecessary to have them in Darwin and have to fly back and forth with them every time he went to the property.

• His firearms licence came up for renewal in June 2016. He renewed the licence, and it was approved without any concerns.

• He continued to hold the firearms licence and stored his firearms at the property. He genuinely believed that he was being fully compliant.

• His firearms licence came up for renewal again in May 2021. His application for a renewal was refused on the grounds he was no longer a NSW resident as he was living in Darwin. The refusal did not mention anything about not meeting the safe storage requirements.

• He requested an internal review on the grounds that he was in the process of relocating back to NSW. The move was delayed due to Covid 19. He estimated that he would be a NSW resident again by October 2021 and therefore satisfy the reason for refusal.

• The internal review application was refused on the ground that he did not meet the safe keeping and storage requirements of clause 28B of the Regulations because the property was no longer someone's principal place of residence.

• He is now aware that in 2017 the law changed and that the new requirements meant a licence holder could only store firearms at a dwelling that was an inhabited dwelling which is further defined as someone's principal place of residence.

• He was aware of the changes to the law in 2017, and he therefore believed he was still doing the right thing.

• He accepts full responsibility for not staying up to date with the legislative requirements.

• In regard to his failure to notify the firearms registry of his change of address when he moved to Darwin, he genuinely believed that he still had a NSW residence, and therefore was entitled to maintain his NSW firearms licence. In that regard, he fully accepts that his interpretation was incorrect. He accepts that his primary place of residence was no longer in NSW and that he should have notified the Firearms Registry.

• The property is his parents' farm. They spend a great deal of time between their house in Canberra and the farm on a monthly basis. His understanding is that the property would certainly be considered an inhabited dwelling. However, he accepts that as it is not listed as his parents' principal place of residence and, therefore, does not meet the requirements of clause 28B of the Regulations.

• He believes that he has always shown good intention to be compliant with the law. He genuinely believes that he had misinterpreted the residency requirements around maintaining a NSW firearms licence when he moved to Darwin and that this was an innocent mistake.

• He believes that he was fully compliant with safe storage requirements up until 2017 when the law changed. He accepts that it is his responsibility to stay up to date with his legislative requirements. He has learnt a lesson and will endeavour to be as proactive as possible to ensure he is fully compliant in every aspect relating to having a firearms licence in the future.

• His family has two farms. In addition to the property, which is about 600 acres in size, they now hold a second farm at Bowning NSW. The Bowning farm is 360 acres and stocks around 750 sheep. The Bowning farm is now his principal place of residence.

• He has come back to NSW to help run the family farm. He is now a primary producer and has a genuine need for firearms for animal welfare reasons. He is a NSW resident, and if granted a NSW firearms licence he intends to store the firearms at his principle place of residence at Bowning.

67. In addition to his own evidence, the Applicant has filed a certificate which shows that he has successfully completed a course in firearms legislation through the Firearm Safety and Training Council Ltd. The certificate states:

The attached certificate certifies that you have successfully completed a course in firearms legislation relating to NSW which is designed to improve the general knowledge of the firearms laws in this State and covers a firearm licence holders’ responsibility as to matters including safe storage, transportation, use/carriage/possession of firearms.

The course includes an examination of the issues that gave rise to the cancellation of your firearms licence and the knowledge and measures necessary to prevent any recurrence.

68. The Applicant has acknowledged his mistakes and understands his obligations to stay abreast of the applicable legislation. He contends that there is virtually no risk to the public if the licence is granted.

69. He submits that he has a genuine reason for holding a firearms licence. He now has an additional genuine reason in that he is now a primary producer.

70. In the circumstances he submits that the correct and preferable decision is to set aside the Respondent’s decision and to grant the category AB firearms licence application.

Discussion

71. In my view, the Respondent’s decision was the correct and preferable one at the time it was made. There is no doubt that at the time of the May 2021 application, the Applicant was residing in Darwin. He had the intention of returning to NSW but the timing of his return was uncertain. That is no longer the case.

72. On the evidence before me, I am satisfied that the Applicant is now a resident of NSW. He therefore satisfies the requirement of section 11(3)(d) of the Act.

73. The issue for the Tribunal concerns whether the alleged contravention of sections 69 and 70 of the Act and clauses 16 and 28B of the Regulations require a finding that the Applicant is not a fit and proper person to have a firearms licence or that it is contrary to the public interest him to do so.

74. As noted, section 69 of the Act provides that the holder of a licence must notify the Commissioner with particulars of their new place of residence within 7 days after a change occurs. On the material before me, I am satisfied that from March 2015 the Applicant relocated to Darwin. From that time he was no longer a resident of NSW and therefore he was required to notify the Commissioner with particulars of his new place of residence. He did not do so.

75. Similarly, the Applicant was required to notify the Commissioner of any change in a particular stated in the licence. As he was residing in Darwin, he no longer had a genuine reason for the licence. This is clearly a change in particulars and because of clause 16 of the Regulations he was required to notify the Commissioner of this change. He did not do so.

76. Clause 28B of the Regulations provides that the holder of a licence must not store a firearm in a dwelling unless it is an inhabited dwelling. On the evidence before me, I am satisfied that from the time that the legislation changed in 2017, the Applicant was unable to comply with this obligation. The property was not an inhabited dwelling.

77. Section 70 of the Act provides that a person must not, in or in connection with an application, make a statement or provide information that the person knows is false or misleading in a material particular. The Applicant’s evidence is that when he applied to renew his firearms licence, he did not know that the information that he was providing was false or misleading in a material particular. This was because of his incorrect interpretation of the legislation. I accept that evidence.

78. The Respondent’s submission that the Applicant is not a fit and proper person to have a firearms licence is based on the contention that the Applicant contravened section 70 of the Act by providing information that he knew to be false or misleading in a material particular.

79. I am not satisfied that the Applicant wilfully provided misleading information when applying for renewal of his firearms licence. In the circumstances, I do not agree that the Applicant is not a fit and proper person to have a firearms licence.

80. The Applicant has acknowledged that his understanding of the legislation was wrong. He has also given evidence that he did not intend to mislead the Firearms Registry. I accept that evidence.

81. I note that the Applicant has undertaken a course in firearms legislation. He has given evidence that he has learnt a significant amount from the course and that he intends to ensure that his knowledge remains current. I accept that evidence.

82. I am satisfied that the Applicant is now acutely aware of the obligations placed on him as the holder of a firearms licence.

83. Notwithstanding that the Applicant’s firearms were stored in an uninhabited dwelling, contrary to clause 28B of the Regulations, the evidence suggests that they were secured in an approved safe. They were not left totally unsecured. I accept the Applicant’s evidence that he has learnt from his mistakes and I consider that it is probable that he will take appropriate steps to secure his firearms in the future.

84. As was noted in Ward v Commissioner of Police, New South Wales Police Service, the Tribunal must be satisfied that there is virtually no risk to public safety if an applicant were given access to a firearm.

85. When all the circumstances are considered, I do not agree that there is a real and appreciable risk to the public if the Applicant is granted a firearms licence. In the circumstances of this matter, I am satisfied that there is virtually no risk if the firearms licence is granted.

86. In any event, the Applicant has been without his licence for a year and in my view that is an appropriate consequence for his conduct.

87. I accept the Applicant’s evidence that he now resides on and works on a farm at Bowning NSW and that he requires a firearms licence to control vermin and, on occasion, to euthanise stock on the property.

88. In all the circumstances, I am not satisfied that it would be contrary to the public interest for the Applicant to hold a firearms licence. In am not satisfied that there is any other reason to refuse the Applicant’s application for a firearms licence.

89. Accordingly, the decision by the Commissioner for Police to refuse the Applicant’s firearm licence should be set aside.

Order

1. The decision under review is set aside.

2. The decision is made that the Applicant’s application for a category AB firearm licence is granted.

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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: 16 August 2022