Clift v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 269

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Clift v Commissioner of Police, NSW Police Force [2023] NSWCATAD 269

Hearing dates:

20 July 2023

Date of orders:

18 October 2023

Decision date:

18 October 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

The decision under review is affirmed

Catchwords:

Administrative Law – Firearms Act - firearms licence - revocation of licence - conditional release order – safe storage requirements.

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Firearms Act 1996

Cases Cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

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

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

Constantin v Commissioner of Police [2013] NSWADTAP 16

Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50

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

Grant v Commissioner of Police [2020] NSWCATAD 158

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

Johns v Commissioner of Police, NSW Police Force [2021] NSWCATAD 283

Kalinic v Commissioner of Police, New South Wales Police Service [2006] NSWADT 227

Keane v Commissioner of Police, NSW Police [2008] NSWADT 68

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

Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206

Meacham v Commissioner of Police [2020] NSWCATAP 107

Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41

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

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

Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93

Ward v Commissioner of Police [2000] NSWADT 28

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

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Toby Clift (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Counsel:
D Birch (Respondent)

Solicitors:
Michel + White Lawyers (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2023/00065519

Publication restriction:

Nil

Reasons for Decision

Introduction

1. This is an application by Mr Toby Clift (“the Applicant”) for review of a decision by a delegate of the Commissioner of Police (“the Respondent” or “the Commissioner”). The decision was to revoke the Applicant’s licence under the Firearms Act 1996 (“the Act”).

Background

Licence history

2. In March 2016 the Applicant was granted a Category ABC firearms licence, for the genuine reasons of:

1. recreational hunting/vermin control based on permission of a landowner to shoot on rural land; and

2. primary production for the suppression of pest animals and vegetation.

3. The licence was reissued in January 2022, but it was revoked in December 2022.

The Applicant’s traffic record

4. The Applicant’s traffic record is not in dispute. His record includes a number of relatively minor offences and fines for exceeding the speed limit by more than 10 km/h but not more than 20 km/h.

5. In March 2019 he was issued a traffic infringement notice for ‘heavy vehicle driver contrary to Safe-T-Cam Zone Rules’. In August 2019, he was made subject to a conditional release order (“CRO”) for 12 months for the infringement.

6. In January 2021, he was subjected to an oral fluid test. He provided a sample of oral fluid, and a positive result to methamphetamine was returned. The sample was sent for analysis, which also produced a positive result to Delta-9-Tetrahydrocannabinol (Cannabinoid) and methamphetamine. The Applicant was issued with a court attendance notice for the offence of ‘drive with illicit drug present in Oral Fluid’. In June 2021, in the Tamworth District Court, the Applicant was made subject to a CRO for a period of 2 years, commencing 18 June 2021 and concluding 17 June 2023.

Storage of firearms

7. On 11 August 2022, Police attended the Applicant’s property to suspend his firearms licence and seize the firearms registered to him. The suspension related to the finding that he has driven with an illicit drug present in his system.

8. The Applicant advised the Police that two firearms were located in a bedroom at his residence, and he provided those firearms to the police. One of the firearms was a Henry .357 Magnum calibre lever action rifle. The other firearm was a CZ .17 HMR bolt action rifle. Both firearms were fitted with trigger locks. The Applicant admitted that as he had been shooting earlier in the morning, the rifles were not secured in an approved storage safe.

9. The Applicant also advised Police that other firearms were kept in lockable gun safes within a shipping container located within a shed on the Property.

10. The Police advised the Applicant that the shipping container storage did not comply with safe storage requirements because the shipping container was not located within view of either of the primary residences on the property; the firearms were not in a safe fitted with an alarm of an approved type that was monitored off-site, nor did the shipping container have an intruder alarm and duress facility that was monitored offsite.

11. The Applicant was served a with Notice of Suspension of his firearms licence for the period 11 August 2022 to 11 February 2023. The Applicant was also charged for the offence of ‘Not Secure Firearm’.

12. In December 2022, the Applicant was found guilty of the offence of “Not keep firearm safely - not pistol/prohibited firearm”. He was sentenced to a CRO without conviction for a period of 12 months, commencing 7 December 2022 and concluding 6 December 2023.

13. As noted, the Applicant’s firearms licence was revoked in December 2022 after he was found guilty of the offence of not keeping firearms safely.

14. The Applicant has applied to the Tribunal for external review of the Respondent’s decision to revoke his firearms licence.

Issues

15. The Tribunal is to determine whether the correct and preferable decision is to revoke the Applicant’s firearms licence.

16. This determination requires consideration of whether the Applicant is a fit and proper person to hold a firearms licence and whether it would be contrary to the public interest for him to do so.

Legislation

The role of the Tribunal

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

18. Section 75 of the Act provides for the review by the Tribunal of a decision to refuse an application for a firearms licence under the Act. This application is made under section 75 of the Act and the ADR Act.

19. Section 63 of the ADR Act provides that in determining an application, the Tribunal is to determine what is the "correct and preferable decision" having regard to the material before it. In reaching the correct and preferable decision, the Tribunal may:

1. exercise all of the functions that are conferred or imposed by the Act on the Respondent; and

2. affirm the Decision, vary the Decision, set aside the Decision and make a decision in substitution of the Decision, or set aside the Decision and remit the matter for reconsideration by the Respondent.

20. There is no formal onus of proof. In considering the Application, the Tribunal may have regard to any relevant material before it at the time of its review. Its consideration is not limited to material that was before the Respondent at the time it made the decision which is under review.

21. The Tribunal is to make its own decision and there is no presumption that the Respondent's decision is correct. The Tribunal should consider all relevant materials and ignore all irrelevant materials.

22. The requirements for proof of questions of fact in administrative review proceedings generally were summarised by an Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at paragraphs [54] and [83]:

“[54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on “logically probative material”, and not on “mere suspicion or speculation”, as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 (“Pochi”) at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 (“Sullivan”) at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it.

…

[83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on “logically probative material”: Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17].”

23. In considering the Application, the Tribunal may have regard to any relevant material before it at the time of its review.

24. The Tribunal is to make its own decision and there is no presumption that the Respondent's decision is correct. However, in determining the review, the Tribunal, must exercise its discretion in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at paragraph [23].

25. The underlying principles of the Firearms Act are, relevantly:

1. to confirm that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety; and

2. to improve public safety by imposing strict controls on the possession and use of firearms and by promoting the safe and responsible storage and use of firearms.

26. The underlying principles set out in section 3(1) of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety: Keane v Commissioner of Police, NSW Police [2008] NSWADT 68 at paragraph [44].

27. Subsection 11(5)(d)(iii) of the Act provides:

11 General restrictions on issue of licences

…

1. A licence must not be issued to a person who—

…

(d)   is subject to one of the following in relation to an offence prescribed by the regulations—

…

1. a conditional release order imposed in New South Wales, or

...

28. Subsection 19(2), which provides that each licence is subject to a condition that the licensee must comply with the relevant safe keeping and storage requirements under the Act.

29. Section 24 of the Act provides:

24 Revocation of licence

...

(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—

…

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

(iii) contravenes any condition of the licence, or

(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

…

(d) for any other reason prescribed by the regulations..

30. Section 39 of the Act provides:

39 General requirement

(1) A person who possesses a firearm must take all reasonable precautions to ensure—

(a) its safe keeping, and

(b) that it is not stolen or lost, and

(c) that it does not come into the possession of a person who is not authorised to possess the firearm.

...

31. Section 40(1)(a) of the Act provides:

40 Category A and category B licence requirements

(1) The holder of a category A or category B licence must comply with the following requirements in respect of any firearm to which the licence applies—

(a) when any such firearm is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable,

...

32. Clause 5(1) of the Firearms Regulation 2017 (“the Regulations”) prescribes offences that disqualify applicants for the purposes of subsection 11(5)(d) of the Act:

(a) Offences relating to firearms or weapons

An offence relating to the possession or use of a firearm or any other weapon, or a firearm part or ammunition, committed under—

(i) the law of any Australian jurisdiction, or

(ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction).

(b) Offences relating to prohibited drugs etc

An offence in respect of a prohibited plant or prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985 or a prescribed restricted substance within the meaning of the Poisons and Therapeutic Goods Regulation 2008, being an offence in respect of which the penalty imposed included any term of imprisonment (whether or not suspended), a community service order, a good behaviour bond or a penalty of $2,200 or more, and committed under—

(i) the law of any Australian jurisdiction, or

(ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction).

33. Clause 20 provides that 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'.

34. Subclause 28B 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.

...

(2) 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

35. As noted, the Respondent contends that the Applicant is no longer a fit and proper person to hold a firearms licence and that that it is not in the public interest for him to continue to hold the licence.

Fit and proper person

36. The Firearms 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 Firearms Act on numerous occasions.

37. The issue of the Applicant’s fitness and propriety is one 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].

38. 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 at paragraph [22].

39. 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.

40. 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.

41. 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.

42. 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."

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

The public interest

44. 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 Commission's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.

45. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at paragraph [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.”

46. In Cusumano v Commissioner of Police at paragraph [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.”

47. Section 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 paragraphs [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.”

48. Ward v Commissioner of Police dealt with the issue of 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 paragraphs [130] – [134].

49. 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 paragraphs [64] – [66].

50. In determining this issue, it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at paragraph [32].

Material before the Tribunal

51. The Respondent relies on a bundle of material filed pursuant to section 58 of the ADR Act (“the section 58 documents)”). This material includes a number of records held in the Respondent’s computer database - COPS. The Respondent relies on the evidence of Sergeant Brett Roden who attended the hearing and gave evidence

52. The Respondent also points to the Applicant’s criminal history and other issues. The Respondent's solicitors also provided written submissions.

53. The Applicant relies on his own evidence and submissions. He provided two affidavits and appeared at the hearing and gave evidence. He also relies on evidence from his partner, Ms Deshae Toma and from his father, Mr Anthony Clift.

The Respondent’s case

54. The Respondent's position is that the Applicant is no longer a fit and proper person to hold a firearms licence; and that it is not in the public interest for him to do so. This position is based on the following:

• on 18 June 2021, the Applicant was found guilty of the offence of driving a vehicle with an illicit drug present in his blood. Without conviction, for that offence he was made subject to a 2 year CRO. That CRO expired on 17 June 2023;

• on 7 December 2022, the Applicant was found guilty of the offence of not keeping a firearm safely. For that offence he was made subject to a 12 month CRO which is due to expire on 6 December 2023.

55. The Respondent's also contends that

• the Applicant contravened both the Act and the Regulations by not keeping multiple firearms safely;

• the Applicant has contravened conditions of his firearms licence by failing to comply with safe keeping requirements under the Act.

56. The Respondent contends that the Tribunal should affirm the decision to revoke the Applicant's firearms licence.

57. The Respondent relies on the evidence of Sergeant Brett Roden who attended the Applicant’s property on 11 August 2022 and observed the Applicant’s firearms storage. The police attendance and conversations with the Applicant are recorded on video and the video footage is in evidence.

58. While there is some disagreement in regard to the Applicant’s movements on that day and his reason for leaving the firearms unsecured in his residence, it is not in dispute that two firearms were located in the Applicant’s residence and that they were not safely stored.

59. In addition to the evidence of Sergeant Roden, the Respondent relies on the court outcomes and the CROs. It is not in dispute that the Applicant remains subject to a CRO until 6 December 2023.

60. The Respondent notes that subsection 11(5)(d)(iii) of the Act states that a licence ‘must not’ be issued to a person who is subject to a CRO imposed in New South Wales in relation to an offence prescribed under the Regulations. Further, subsection 24(2)(a) provides that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind.

61. Consequently, an application for a firearms licence lodged by the Applicant before the expiration of the CRO on 6 December 2023 would be required to be refused. Nevertheless, the Respondent accepts that the Tribunal has a discretion with respect to whether the licence should be revoked. The Respondent notes the views expressed by Senior Member Walker in Johns v Commissioner of Police, NSW Police Force [2021] NSWCATAD 283 where he observed at paragraphs [72] - [73]:

1. ... It is sometimes said to be “anomalous” that a person who is convicted of a prescribed offence or made subject to a CRO is disqualified from applying for a licence, but if the same person is convicted of a prescribed offence or made subject to a CRO while holding a licence, the tribunal has a discretion with respect to whether the licence should be revoked: Kalinic v Commissioner of Police, New South Wales Police Service [2006] NSWADT 227, [23].

2. The situation is not necessarily anomalous, however. In the case of a person who already holds a licence, the Commissioner can consider the person’s licensing history. If it shows a long record of conscientious compliance, it may be seen as appropriate to waive an isolated breach of the regulatory scheme. But where a person is applying for a licence for the first time, there is no prior record to consider and consequently no basis for exercising a discretion in the applicant’s favour. Lucy SM considered this and related propositions in some detail in Grant v Commissioner of Police [2020] NSWCATAD 158, [27] – [29].

   62. The Respondent contends that the Applicant's offence was not an isolated breach of the regulatory scheme, as it was apparent that the Applicant had been inappropriately storing his firearms in breach of clause 28B of the Regulation for some time. The Respondent submits that this makes it clear that the Applicant has a negligent attitude towards the use of firearms.

   63. Additionally, the Respondent contends that the Tribunal is able to take into consideration the Applicant's conduct in January 2021, which demonstrates reckless and dangerous behaviour. Driving a motor vehicle whilst having consumed the prohibited drugs of cannabinoid and methamphetamine is a matter of concern from a public safety perspective. The Respondent submits that it is clear that the Applicant was sentenced to a 2 year CRO as a means of safeguarding the public from those that are drug-affected driving motor vehicles and placing the other road users at significant risk.

   64. The Respondent further notes that the Applicant committed the safe storage offence and became subject to a CRO at a time when he was already subject to a CRO for the offence of driving a vehicle with illicit substance present. The Respondent submits that such conduct also suggests that the Applicant does not treat such penalties as serious.

   65. In regard to the question of whether the Applicant is no longer a fit and proper person to hold a firearms licence, the Respondent contends that the following conduct is relevant:

   • the Applicant having been found guilty of the offence of driving a vehicle while illicit drugs were present in his blood, for which he was made subject to a 2 year CRO;

   • whilst subject to a CRO, the Applicant was found guilty of 'not keeping a firearm safely', for which he was made subject to a 12 month CRO expiring on 6 December 2023;

   • the Applicant changed his evidence in regard to his use and storage of firearms prior to Police attending his Property in August 2022. He sought to justify his actions on the basis that he did not think it was a good idea to ride up to the shed to meet Police holding two firearms. This explanation was not offered to Police at the time. Rather, they were informed that the Applicant had been shooting earlier in the morning; and

   • the Applicant has not expressed any remorse for the offences committed, nor has he provided any evidence to support that he is a person of good character that can be trusted to use and possess firearms without danger to the public safety or the peace.

   66. Further, the Respondent contends it would be contrary to the public interest for the Applicant to retain his firearms licence given his multiple contraventions of the Act and Regulations as well as conditions of his firearms licence. The Respondent submits that the Applicant's failure to comply with safekeeping and storage provisions exhibits a lack of regard to rules in place to promote safety.

   67. In circumstances where the Applicant will be subject to a CRO until 6 December 2023, it is submitted that the Tribunal should exercise its discretion and affirm the Respondent's decision to revoke the Applicant's firearms licence.

The Applicant’s case

68. The background to this application is not in dispute to any significant extent. The Applicant is 30 years old with a partner and two children. He has been involved with firearms since 2006. He uses his firearms licence predominantly for vermin eradication and control on both the farm upon which he resides and neighbouring properties.

69. In his role as a livestock transport operator, on the rare occasions he has to destroy a beast that has been injured.

70. Applicant does not dispute his traffic record or court outcomes in relation to the charges brought against him. He does not dispute that he will be subject to a CRO until 6 December 2023. However, he submits that he has a very limited criminal history.

71. He notes that the 2 year CRO that related to the offence of driving a vehicle while illicit drugs were present in his blood has expired.

72. In relation to that incident, an Event record dated 15 July 2021 which is contained in the section 58 documents recorded that “the OIC has determined that no further action is required against the firearms licence holder to suspend, revoke or apply special conditions”. Notwithstanding that decision, the Police attended the Applicant’s property in August 2022 to suspend his firearms licence. His frustration at this changed attitude was evident in the video footage.

73. The Applicant’s Affidavit of 24 May 2023 sets out his evidence of what occurred when the police attended his property. At paragraphs [2] to [7] he stated:

1. On 11 August 2022 police attended my property in relation to the suspending my firearms licence.

2. Prior to the police attending the property I had been contacted by my father to alert me to the fact that they were about to do so.

3. I had been up the paddock shooting feral pigs which pigs were getting out of control due to the heavy rainfall we had been experiencing.

4. As I approached our house block, which comprises of two homes and large sheds, I saw that the police had driven up to the shed (where the firearms are stored).

5. I did not think it was a good idea to ride up to the shed holding two firearms, so I dropped them off at my house, which is a cottage, and put them in a bedroom and closed the door. l removed all ammunition and bolts from the guns and engaged the trigger locks. The cottage is clearly visible from where I met the police at the workshop.

6. I entered a plea of guilty at the earliest opportunity following discussions between my lawyer and the police as to the facts, on 7 December 2022.

   74. The Applicant’s evidence is supported by that of his father, Mr Anthony Clift, and his partner, Deshae Toma.

   75. The Applicant submits that he is a fit and proper person to hold a firearms licence, considering the circumstances of the offending, the leniency shown by the courts and his positive subjective factors. He accepts that the two incidents for which he has been charged are relevant matters in a case involving the revocation of a firearms licence. However, he asks the Tribunal to accept that:

   1. No action was taken in relation to his firearms licence due to the offence of driving a vehicle while illicit drugs were present in his blood as police discretion had been utilised; and

   2. The manner in which the courts dealt with the charges reflects the particular circumstances of the incident and the Applicant, such that there is not a proper basis for the Tribunal to conclude that he is not a fit and proper person to hold a firearms licence.

   76. With respect to the public interest, he submits that the factual findings made with respect to the fit and proper person test must inform the Tribunal’s consideration of whether it is contrary to the public interest for him to hold a firearms licence.

   77. He further submits that his offending does not inexorably lead to the conclusion that it would not be in the public interest for him to hold a firearms licence or that public safety would be placed at risk if he were to hold possess firearms.

   78. In the circumstances, the Applicant submits that the Tribunal should find that he is a fit and proper person to hold a firearm’s licence and can be trusted to have possession of firearms without danger to public safety or to the peace, and it would not be contrary to public interest for him to do so.

Consideration

79. This is an application in which there is clear discretion in regard to the decision to revoke the Applicant’s licence notwithstanding that he would not be eligible to be granted a licence if he were to apply. There are a number of decisions of this Tribunal and the former Administrative Decisions Tribunal which speak of that situation as an anomaly. As has been noted above, Senior Member Walker in Johns v Commissioner of Police, NSW Police Force explained that in the case of a person who already holds a licence, the person’s licensing history can be considered.

80. In the present matter, the Applicant has a long record of conscientious compliance. As Senior Member Walker also noted, it may be seen as appropriate to waive an isolated breach of the regulatory scheme.

81. The Tribunal regularly has regard to the terms of section 24(2)(a) of the Act in its statutory context. As Senior Member Lucy commented in Grant v Commissioner of Police [2020] NSWCATAD 158 that context includes the Act’s principles and objects.

82. The discretion should be exercised in a way which promotes the principles and objects of the Act: see Cusumano v Commissioner of Police at paragraph [23] which is referred to above. Those principles and objects are set out in section 3 in the following terms:

83. The underlying principles of the Act are:

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

(b) to improve public safety:

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

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

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

84. The objects of the Act are as follows:

(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(b) to establish an integrated licensing and registration scheme for all firearms,

(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,

(e) to ensure that firearms are stored and conveyed in a safe and secure manner,

(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

85. It is clear that gun ownership and use is a privilege which is conditional on the overriding need to ensure public safety. The Act places “strict controls” on the possession and use of firearms and public safety is promoted by safe storage requirements. The legislation does not leave it to the discretion of licensees as to when they will comply with the safe storage requirements. Further, it is a requirement of the legislation that licensees maintain an up-to-date knowledge of the legislation and ensure that they comply with its requirements.

86. I note the Applicant’s explanation for his failure to safely store his firearms on the day that the Police attended his property in August 2022. This explanation does not alter my view that as a licensee he had an obligation to comply with the legislation. His frustration is understandable due to the Respondent’s delay in taking action following his illicit drug driving offence and in those circumstances it is also understandable that he might fail to mention information that the Police consider relevant.

87. Nevertheless, I note that I am satisfied that the Applicant is a fit and proper person to hold a firearms licence. I have formed this view notwithstanding his offences. I am satisfied that the Applicant has learned from his mistakes and that he is likely to comply with his obligations as a licensee should he be permitted to hold a firearms licence.

88. In the circumstances of this matter, the Applicant remains subject to a CRO. He incurred that order at a time when he was already subject to a two year CRO because of the illicit drug offence. In my view the courts have assessed the Applicant’s conduct as warranting that he be subject to a CRO for the stated periods and that assessment should be acknowledged as relevant to these proceedings. The considerations to be balanced against that history are the Applicant’s record of conscientious compliance and his need for firearms to control feral animals.

89. After weighing up those considerations, it is my view that the Applicant should serve the complete term of the CRO before I could be satisfied that he should again be permitted to possess firearms. In the circumstances of this matter, it would be contrary to the public interest for him to hold a licence until the CRO expires. If he reapplies for the grant of a licence after 6 December 2023, he may well receive a different outcome.

90. On the evidence before me, it is my view the correct and preferable decision is to affirm the decision to revoke the Applicant’s firearms licence.

Order

The decision under review is affirmed

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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: 18 October 2023