Cooper v Commissioner of Police

[2022] NSWCATAD 195

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Cooper v Commissioner of Police [2022] NSWCATAD 195

Hearing dates:

25 May 2022

Date of orders:

15 June 2022

Decision date:

15 June 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Naida Isenberg, Senior Member

Decision:

The decision under review in relation to:

(1) the revocation of the Applicant’s AB licence is affirmed.

(2) the Applicant’s application for a category ABD licence is affirmed.

(3) the Permit to Acquire a B2 Centrefire rifle is affirmed.

Catchwords:

LICENSING – firearms false statements in applications – use of firearms contrary to licence – failure to notify change of use –– fit and proper person – public interest

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Firearms Regulation 2006

Cases Cited:

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254
Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657
Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50

DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219

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
In Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127

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

Kammoun v Commissioner of Police, NSW Police Force [2021] NSWCATAD 273

Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97
McDonald v Director General of Social Security (1984) 1FCR 353 at 357
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
Shi v Migration Agents Registration Authority [2008] HCA 31

Sobey v Commercial Agents Board (1979) 22 SASR 70

Stamatelatos v Commissioner of Police, NSW Police Force 

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

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Michael John Cooper (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
Mainstone Lawyers (Applicant)
Makinson d’Apice Lawyers (Respondent)

File Number(s):

2022/00020448

Publication restriction:

Nil

REASONS FOR DECISION

1. On 29 June 2020 (and also on 8 July 2020), the Applicant, Michael Cooper applied for a Category ABD firearms licence for the genuine reason of Vertebrate Pest Animal Control - professional contract shooter. On the same dates, he applied for a Permit to Acquire (PTA) for a B2 Centrefire rifle. He also applied for a Category H firearms licence for the genuine reason of Business or Employment, but his application was subsequently withdrawn.

2. On 25 August 2021, the Applicant was issued with a PTA. Then, on 27 October 2021, the Respondent refused the Applicant’s category ABD firearms licence application, revoked the Applicant’s category AB firearms licence and revoked his PTA. Those decisions were affirmed on internal review. The Applicant now seeks review by this Tribunal.

Relevant legislation

3. The general principles of the Firearms Act 1996 (the Act) are set out in s 3 of the Act:

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

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

(2) The objects of this 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.

4. The Act, in setting out restrictions on the granting of licences, provides, relevantly, at s 11 of the Act:

...

(3) A licence must not be issued unless:

(a) 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, and

…

(7) 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.

...

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

6. Section 7A(2)(a) of the Act prescribes that a person who is the holder of a licence is guilty of an offence under this section if the person 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.

7. Clause 16(1)(a) of the Regulation prescribes that the holder of a licence must, if there is any change in a particular stated in the licence notify the Commissioner, in writing or in such other manner as may be approved, of the change within 14 days after the change occurs. Further, cl 16(2) extends the change in particular, to a change in genuine reason for which the person was issued with a licence (including the removal of a genuine reason or the inclusion of an additional genuine reason).

8. As to revocation, s 24(2)(a) of the Act 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. Section 24(2)(b)(ii) prescribes that the Commissioner may revoke a firearms licence if the licensee contravenes any provision of the Act or the Firearms Regulation 2006 (the Regulation), whether or not the licensee has been convicted of an offence for the contravention.

9. Section 24(2)(d) of the Act prescribes that a licence may be revoked for any other reason prescribed by the Regulation. Clause 20 of the Regulation prescribes 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.

Evidence

10. The Applicant provided a statement dated 2 May 2022. He gave evidence and was cross examined.

11. The Respondent provided material in accordance with s 58 of the Administrative Decisions Review Act 1997 (ADR Act). Material later filed by the Respondent included an extract from the Applicant’s traffic record in relation to offences in 2004 and 2005, an Information Report dated 2003 in relation to an allegation concerning the theft of motorcycles and an Information Report in relation to an interaction with Police on 7 August 2004. Four pages from the Applicant’s Facebook page were also provided. An extract from the Firearms Registry website in relation to mandatory participation requirements was also produced.

12. Both parties provided written submissions.

Tribunal’s approach

13. Section 63 of the ADR Act provides that in determining an application for review the Tribunal 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 a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shiv Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) 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: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34].

14. To be eligible for a PTA, an applicant must hold a current NSW firearms licence or permit and the applicant may only apply for the type of firearm that the category of licence they hold authorises them to possess. Hence, I have addressed below the Applicant’s application in respect of his firearms licence. If I find against him in relation to his licence, his application for a PTA must also fail.

CONSIDERATION

Applicant’s firearms history

15. On 29 January 2004 and again on 14 August 2012 the Applicant lodged applications for a Category AB firearms licence. Both applications were refused. The Applicant’s 2004 application was refused because, at that time, the Applicant was the subject of a Good Behaviour Bond, hence the Commissioner was required to refuse the application: s 11(5)(d) of the Act.

16. The Applicant applied again in 2012. His application was refused, as the Applicant had been convicted in 2008 of a prescribed offence, namely Steal Vessel, Accessory after the fact for which he was sentenced to 6 months detention, and the Commissioner was therefore required to refuse the application: s 11(5)(b) of the Act and Reg 5(1)(f).

17. When the Applicant sought a Category AB firearms licence in December 2018, he was issued with a licence for the genuine reason of Recreational Hunting/Vermin Control and a PTA for a B2 Centrefire rifle. The Applicant relied on his membership of the Sporters Shooters Association of Australia (SSAA) NSW Sydney Branch as evidence of his genuine reason.

On what basis was the Applicant’s licence revoked/refused?

18. The Applicant’s licences were revoked/refused on the basis that he was not considered to be a fit and proper person to hold a firearms licence and that it was not in the public interest that he hold a licence. In addition, it was submitted that the Applicant could not demonstrate a genuine reason to hold a category D firearms licence.

Is the Applicant a fit and proper person to hold a firearms licence?

The Applicant’s criminal history

19. The Respondent relied, to some extent, on the Applicant’s criminal history:

1. In 2003 he was convicted of steal motor vehicle and was sentenced to 50 hours community service.

2. Also in 2003, he was given a good behaviour bond under s 9 of the Crimes (Sentencing and Procedure) Act 1999 for goods in custody.

3. In 2005 he was apprehended driving without a “P” plate and was issued with a traffic infringement.

4. In 2006 he was apprehended for driving an unlicensed, uninsured vehicle without a licence and was issued with a traffic infringement.

5. In 2008 he was fined for possession of cannabis.

6. Also in 2008, he was fined and sentenced to 6 months periodic detention for steal vessel (accessory after the fact).

7. In 2013 there was a mid-range PCA charge for which he was fined and disqualified from driving for 6 months.

20. I accept that the only time the Applicant has come to the adverse attention of Police in the last 10 years has been in relation to the mid-range PCA in 2013, and his last substantive offence was in 2008. Also, as the Applicant pointed out, when his licence was issued in 2018, he was deemed as a fit and proper person to hold a firearms licence, notwithstanding his previous history. Because of the lack of recent adverse history in that his last substantive offence was now, 14 years ago, and because, and because, as recently as 2018 he was found by the Respondent to be a fit and proper person to hold a firearms licence, I attach little weight to the Applicant’s criminal history.

False statements

21. Section 24(2)(b)(i) of the Act provides that a licence may be revoked if the licensee 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. Further, s 70 of the Act imposes severe penalties on a person who, in connection with an application for a firearms licence, makes a statement or provides information that the person knows is false or misleading in a material particular.

22. The Respondent relied, in particular, on the Applicant having made false statements in the Personal History sections of his applications lodged on 14 August 2012, 29 June 2020 and 8 July 2020 in which, on each occasion, he answered ‘no’ to the question:

Have you in NSW or elsewhere:

a) Been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked?

23. In his statement the Applicant wrote that in his application of 29 June 2020, he answered the question on the form regarding being previously refused a licence “No” because he had been issued a licence on 15 August 2018 and therefore did not think this was applicable to him.

24. He said in relation to his application of 8 July 2020 he answered “No” because this application was for two “business licences”. He said that, as he had never applied for a business licence before he interpreted that question to mean “had he been refused this type of licence before” (Tribunal italics).

25. He wrote that there was no intent to mislead or falsify his application in relation to the question about being previously declined a firearms licence. In something of a non sequitur he said he was the one contacting the Registry and Police to ensure he was complying with the law.

26. He said he spoke to the local licensing officer, Constable Thornton about the licence showing on the Registry website as valid and claimed the constable said no action would have been taken against him; he therefore understood that no action taken against him because it was an honest mistake.

27. The Applicant acknowledged that the statements made in the 2020 applications were false, but said, in his statement that it was not his intention to knowingly deceive the Firearms Registry and it was an “honest misinterpretation of the questions asked”. He was interviewed by Police regarding the applications and no action was taken against him. Police reported: '‘After discussing the incident with prosecutors it is believe (sic) that while there is no dispute that Michael Cooper acknowledges completing both applications himself and selecting incorrect answers there is insufficient evidence to prove all elements of the offence, specifically with respect to the Mens Rea, of the offence.” It was submitted by the Applicant that the Police accepted his explanations in determining not to prosecute him. I do not accept the submission. The only available conclusion, because of the reference to mens rea, is that the prosecutor could not be confident of obtaining a prima facie case in the absence of admissions by the Applicant about his intention to deceive. As discussed, the standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. Notwithstanding the charges against the Applicant did not proceed, the Tribunal is to take into account matters indicating criminal conduct even though the particular offences were dismissed: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31 (Joseph) at [62] - [64]. 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.

28. Even if I were to accept the Applicant’s purported explanations in relation to his two 2020 applications, he provided no reason for his false statement in his application of 14 August 2012. In his internal review application the Applicant wrote that he did not recall making an application for a firearms licence in 2004, although there was no dispute in relation to a copy of an application provided in the s 58 documents. It is clear from the refusal letter that his 2004 application was refused because, at that time, the Applicant was the subject of a Good Behaviour Bond. Hence, that refusal should have been noted in his 2012 application, but he did not do so. While he declared that he had been convicted within the preceding 10 years of a (specified) offence, he did not declare that he had previously been refused a licence. That he now says he cannot recall making an application in 2004 is no excuse for the false statement in 2012.

29. The Respondent submitted that the Applicant’s answers were clear attempts to circumvent what is a reasonably clear question that seeks to ascertain whether a potential applicant has in the past been refused a firearms licence.

30. As I said in Saxby v Commissioner of Police [2021] NSWCATAD 275 at [74]:

If the Applicant had knowingly provided false or misleading information in the application he would be liable to severe penalty: s 70 of the Act. Furthermore, on that basis alone, it would be unlikely that it would be in the public interest that a person who knowingly provided false or misleading information, should hold a firearms licence: see Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240.

31. Here, as in Saxby, it is difficult to conclude that the Applicant did not knowingly intend to provide false information. Also, as I said in Leatham v Commissioner of Police [2021] NSWCATAD 121 at [18], one of the objectives of the Act is the functioning of a proper system of firearms licensing, which necessarily depends on applicants providing true and correct information in a comprehensible manner. In Kogias v Commissioner of Police [2020] NSWCATAD 297 the applicant, who had failed to disclose that he had previously had his licence revoked, said that his incorrect statements in the application were errors and were not intentional. Nonetheless the Tribunal in that matter took the view that the applicant knew the form he had completed was incorrect. See also Lukas v Commissioner of Police, NSWPF [2021] NSWCATAD 268. Similarly, in Hunt v Commissioner of Police [2021] NCATAD 58 the Tribunal found the applicant was aware that he had incorrectly completed the form in relation to a suicide attempt within the preceding 10 years.

32. In Hook v Commissioner of Police [2020] NSWCATAD 250 (Hook) the applicant had responded “no” to a question whether in the past 10 years he had been the subject of an AVO and had explained that he had thought the question was asking about current AVOs and that he must have misread the question. Professor Walker SM considered, at [96], that the applicant’s explanations were less than impressive and at best suggested a degree of carelessness in completing an official document and that the meaning of the question was clear enough if he had taken the trouble to read it properly. The Senior Member found the applicant in that matter to be, essentially, unsophisticated and probably had not been involved in much legal form-filling; the applicant’s incorrect answers were found to be the result of a combination of carelessness, inexperience and the absence of assistance from a person with such experience.

33. In this matter, according to a referee, Wolf Moeckel of Wolfman Pest Control, the Applicant has undertaken studies at TAFE - Certificate III in Asset Maintenance (Pest Management-Technical Pest Control) and Certificate IV in Training and Assessment, and the Applicant provided copies of his certificates. His studies involved, no doubt, not only practical experience, but necessarily, book-learning in the course of his studies. In addition, the process by which the Applicant obtained a CASA clearance and his pilot’s licence, would, in my view, in addition to academic rigour, be highly likely to entail an awareness and understanding of the necessity of compliance with each of those regulatory regimes; he was not therefore unsophisticated in regulatory matters. Further, I observe that in his 2018 application he answered “yes” to the question about prior refusal of a firearms licence application. That confirms my view that he was aware of his obligations in this aspect of the firearms regulatory regime also.

31. I find that, on balance, the Applicant knew his answers on the application forms were false or misleading within the meaning of s 70 of the Act: per Joseph.

Use firearms contrary to genuine reason

35. As discussed above, the Applicant has previously held a Category AB firearms licence.

36. Firearms may only be used in connection with the purpose established by the person as being the genuine reason for possessing or using the firearm. The Applicant has only ever held a Category AB firearms licence, which was granted for the genuine reason of Target Shooting and Recreational Hunting/Vermin Control. The Applicant asserted in his submissions that he “did not engage in contract shooting until such time as [his] licence status for Business - Contract Shooting was listed as valid on the Respondent's online registry”. He said he did not advertise until he had a “valid licence”. In fact, the Applicant has never held a licence for the genuine reason of vertebrate pest animal control; it was only in June 2020 that he first applied for a firearms licence for the genuine reason of Vertebrate Pest Animal Control - professional contract shooter.

37. In support of his internal review application, however, the Applicant indicated that he has been utilising firearms as a professional contract shooter. He wrote:

1. “On [25 October 2021] I was carrying out vertebrate contract shooting at Megalong Valley starting at approximately 6am.”

2. “I actively held an A & B target shooting/vermin control licence when I applied to add categories to me licence, someone in the registry must have read the application over 12 months ago when they approved the upgrade to my A & B, to add contract shooter.”

3. “I have exercised the privileges of that licence up until the revocation was given to me. In that time I carried out contracts to the highest amount of safety with no issues within this time".

4. “I derive approx. 30% of my total income from vertebrate contract shooting, and have been actively increasing the number of contracts since been (sic) approved as a contract shooter.”

38. He provided:

1. A letter dated 25 June 2020, in which Brian Daniel wrote that “Mr Cooper has been known to me for over ten (10) years and has been operating a business in Pest Control - known as “Coopers Pest Control” [ABN provided] for this period. Part of his task in conducting his business is as a “Contract Shooter” used for the suppression of vertebrate pests/animals.”

2. An authority on Coopers Pest Control letterhead dated 22 August 2019 from Anthony Brown authorising the Applicant to engage in the shooting of goats, pigs, deer, dogs, foxes and rabbits on his property. There was no reference to any payment.

3. An authority on Coopers Pest Control letterhead dated 4 June 2020 from Penelope Trevor-Jones authorising the Applicant to engage in the shooting of pigs, foxes and non-native birds ie pigeons on her property for which he was to be paid $220. An invoice/receipt was also provided.

4. An authority on Coopers Pest Control letterhead dated 27 June 2020 from Linda Grant authorising the Applicant to engage in the shooting of feral pigs and dogs on her property for a bounty of $10 per animal would be paid.

5. An authority on Coopers Pest Control letterhead dated 25 August 2020 from Clinton Baxter authorising the Applicant to engage in the shooting of dogs, foxes and rabbits on his property for which he was to be paid $330 per visit.

6. A (somewhat illegible) authority on Coopers Pest Control letterhead dated 26 August 2020 from Glen Wadham authorising the Applicant to engage in the shooting of goats, pigs, dogs and rabbits on his property.

7. An insurance policy issued on 13 January 2020 in which his business activities were listed as including “feral animal control including the use of firearms”.

39. As can be seen from the above “contracts” the Applicant was engaging in professional shooting activities for reward from at least August 2019.

40. In his application for a Category ABD licence the Applicant said that a Category A or B firearm was insufficient for the eradication of feral pests. I do not accept this submission, as many farmers have only an AB licence which they use to manage the vermin on their properties. The Respondent submitted that the Applicant could only know that the management of vermin remains problematic if he in fact was having difficulty with the eradication of feral pests. I do not accept this submission, as the difficulties faced by farmers is well-known, and the Applicant is likely to have understood this to be the case even without personal experience.

41. In his internal review application the Applicant wrote that on about 15 October 2021 he had been contacted by an officer of the firearms registry in relation to his category D licence and understood his application would be dealt with shortly. About a week later when he checked on the Registry website the category D licence was not recorded. He thought it was a computer error. Nonetheless, he continued on with his planned shooting contract in the Megalong Valley for several days. He then had conversations with Police and understood “everything would be fine”. Then, in early November 2021, when his position was still unresolved, he nonetheless again undertook a shooting contract for a few days. It is clear that, notwithstanding he did not have the appropriate licence he nonetheless engaged in contract shooting for reward.

42. Further, the Applicant used his social media account to post on the Facebook group “NSW Pest Manager’s” a cropped photo of “Firearms Licence Details”. The photograph appears to include a Category D licence under the heading “Licence Type”. The Applicant has posted on his business Facebook page “Cooper’s Pest Control” photos of himself undertaking “feral pest management”, which included photographs of shot pests and rifles. The Respondent submitted that the Applicant has been publicly posting and advertising for contract shooting while not holding a firearm’s licence which would permit such work.

43. In his evidence the Applicant said the posts were on a private group and the first entry was on 31 July 2020, that is, after he had applied for a contract shooters licence; his licence, however, had not been issued at that time but he was clearly representing himself, even if only to other professional shooters, that he was in fact licensed. As to photographs on a page headed “Coopers Pest Control” dated only “20 March”, in which he is depicted with feral animals and firearms, he said he was shooting with 2 mates over the Easter weekend. That he appears to be kitted out in protective clothing was, he said, because it was raining. No conclusions can be drawn in relation to the photographs but I observe that it is curious that he would choose to post pictures of a private shooting weekend on a professional shooters page. His evidence in that regard is inconsistent with the clear evidence that he was, at that time, undertaking contract shooting, contrary to his issued licence.

44. The Applicant wrote in his statement that he did not advertise for contract shooting until his licence showed up on the Registry website. At best, this is a fine point, but the Applicant chose to undertake a professional shooting role from which he derived, on his evidence, 30% of his income, without being licensed to do so.

45. As the only valid firearms licence ever held by the Applicant was a Category AB firearms licence, issued for the genuine reason of Target Shooting and Recreational Hunting/Vermin Control, it is clear that he has contravened s 7A(2)(a) of the Act by using his firearm for contract shooting, a purpose not in connection with the genuine reason for which his firearms licence was granted. Further, he failed to notify the Commissioner of any change of his purported genuine reason for which he was issued with a licence: cl 16 of the Regulation.

Conclusion in relation to breaches

46. In Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226 Hennessey DP said that if the breaches of the Act or Regulation are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety, which is a fundamental objective of the Act. In Bevan v Commissioner of Police [2004] NSWADT 1, the Tribunal stated at [26]:

... Parliament has given a clear indication that the Commissioner is to revoke or refuse a licence, unless the Commissioner is satisfied that the contravention was merely a technical breach, the conduct posed no risk to public safety and there was no evidence that the licence holder or applicant for a licence would in future engage in conduct that posed a risk to public safety(see s3(1)(a) of the Act). (Tribunal’s emphasis)

47. The Applicant's contraventions are not merely “technical”. Firstly, the Act sets out a clear obligation that questions are to be answered truthfully and the Applicant has failed to comply with that obligation. His failure to comply in relation to the false statements – on 3 separate occasions - cannot be disregarded as an oversight.

48. Moreover, the use of his licence for a purpose other than his approved genuine reason cannot be discounted as a technicality.

Is the Applicant a fit and proper person to hold a firearms licence?

49. Section 11(3) of the Act requires that the Tribunal be 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.

50. The question whether a person is “fit and proper” is one of value judgment: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, per Mason CJ. The expression "fit and proper person", on its own, carries no precise meaning and 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: per Toohey and Gaudron JJ at 380. See also Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28 (1955), Re Percival and Australian Securities Commission [1993] AATA 196, Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALP 794 at [41].

51. In Sobey v Commercial Agents Board (1979) 22 SASR 70 at 76, Walters J said in relation to the licensing of commercial and private agents, that the expression means that an applicant must show that he or she “is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails.” In the context of firearms licensing, in Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 at [22], JM Higgins stated that in determining the fitness and propriety of an applicant for a licence s 11(3)(a) of the Act requires the decision-maker to have regard to an applicant's conduct and whether that conduct is such that the decision-maker can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace. The test is directed towards maintaining and encouraging appropriate standards in the use of firearms.

52. The Applicant submitted that he is a fit and proper person and provided evidence of his commercial pilot’s licence (2021) and CASA security clearance. I accept his evidence that to gain security clearance a vetting process is required which is likely to have included criminal record checks. It was submitted he would not have received such clearance if that Authority found him not a fit and proper person.

53. While that may be the case, the test to be applied, as discussed above, focuses on the context, so while the Applicant may be a fit and proper person for the purposes of one regime, it does not necessarily follow that he is a fit and proper person for the purposes of the Act.

54. I was referred to Kammoun v Commissioner of Police, NSW Police Force [2021] NSWCATAD 273 where SM Montgomery, in referring to DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at paragraph [57] said at [100]:

The level of co-operation and frankness demonstrated by a licensee in dealings with the regulator is indicative of the licensee’s character.

55. The Applicant appears to have adopted a cavalier approach to the licensing regime – I have found he either deliberately or negligently completed his licence applications on 3 occasions. I have found he used his firearms contrary to his licence in that he engaged in activities as a professional shooter when he was not authorised to do so. He failed to notify the regulator until he had been undertaking that role for at least 18 months. I am therefore not satisfied that the Applicant is, in the terms used in Sobey, a person possessed of sufficient integrity and character to be safely accredited to the public as a person who should be entrusted with the privilege of firearm possession: s 11(3)(a) of the Act.

Public interest

56. The Respondent also contended that it is not in “the public interest” for the Applicant to hold a firearms licence: s 11(7) of the Act. The term is not expressly defined in the Act. It is well-settled though that “the public interest” is considered relative to the objects of the Act and the firearms licensing system, with public safety being give paramount consideration: see, for example, Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].

57. The Tribunal exercises the discretion in s 11(7) of the Act in accordance with the Act’s objects and underlying principles as set out in s 3 of the Act. The Tribunal’s decision is to reflect the risk that an applicant will misuse a firearm in a way that impacts the public interest. The Tribunal has repeatedly said that an applicant is not required to discharge an almost impossible burden of proving a near absolute negative, but, rather, the Tribunal must take into account 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]. Further, when assessing the public interest, 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 [32]. It is clear though that the overriding concern of the public interest in this context is the maintenance of public safety. Any real and appreciable risk to public safety cannot be outweighed by the Applicant’s interest in holding a firearms licence.

58. Having found that the Applicant is not a fit and proper person to hold a firearms licence, it is difficult to envisage circumstances where, nonetheless, it can be in the public interest for an applicant to hold such a licence. The Applicant said that he wishes to retain his firearms licence (and add a Category D professional shooters licence) to continue his part time work as a professional shooter to ensure that he makes enough income to support his family.

59. Private interests, however, are not the only matters taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657 at 681. In this case, the Applicant is otherwise employed, and it is not that his family’s overall livelihood is at risk.

60. The Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. In that regard, past conductof the Applicant is a significant guide in assessing likely future conduct: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141]. The Applicant, by his false statements, his use of his firearms contrary to his licence and his failure to inform the Police of his change of role for many months demonstrated a lack of candour in dealings with Police.

Conclusion

61. For the reasons discussed above, I am not satisfied that the Applicant is a fit and proper person to hold a firearms licence. Further, for the reasons discussed above, I am also not satisfied that it is the public interest for the Applicant to hold a firearms licence at this time.

Decision

62. The decision under review in relation to:

1. the revocation of the Applicant’s AB licence is affirmed.

2. the Applicant’s application for a category ABD licence is affirmed.

3. the Permit to Acquire a B2 Centrefire rifle 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: 15 June 2022