Cseszko v Commissioner of Police, NSW Police Force (No.2)

[2017] NSWCATAD 88

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Cseszko v Commissioner of Police, NSW Police Force (No.2) [2017] NSWCATAD 88
Hearing dates:	On the papers
Date of orders:	27 March 2017
Decision date:	27 March 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	The decision of the Commissioner of Police to revoke Mr Cseszko’s firearms licence is affirmed.
Catchwords:	FIREARMS – revocation of licence –fit and proper – public interest.
Legislation Cited:	Firearms Act 1996
Cases Cited:	Commissioner of Police, NSW Police Force v Cseszko [2016] NSWCATAP 194 Cseszko v Commissioner of Police, NSW Police Force [2016] NSWCATAD 50 Stiles v Commissioner for Fair Trading & Anor [2017] NSWCATAP 44 Vella v Commissioner of Police [2003] NSWADT 91. Ward v Commissioner of Police [2000] NSWADT 28
Category:	Principal judgment
Parties:	Jason Cseszko (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Solicitors: Adams Partners, Lawyers (Applicant) Henry Davis York (Respondent)
File Number(s):	1510559

reasons for decision

1. The Applicant held a Category AB firearms licence under the Firearms Act 1996 (“the Act”). The licence was initially issued in July 2006. The licence was suspended on 28 January 2015 following allegations that he had allowed his seven year old son to fire an air rifle during a trip to visit the Applicant’s parents in January 2015. The firearms licence was subsequently revoked on 21 May 2015.

2. In revoking the licence, the Commissioner decided that the Applicant was not a fit and proper person to hold a firearms licence. Whilst the main reason was that the Applicant had allowed his son to fire an air rifle, the Commissioner’s delegate also referred to other incidents involving the Applicant and contends that he is not a fit and proper person to hold a firearms licence and that it is not in the public interest for him to do so.

3. The relevant background is set out in my decision in Cseszko v Commissioner of Police, NSW Police Force [2016] NSWCATAD 50 (“the first decision”). In the first decision I ordered:

1. The decision under review is set aside.

2. The decision is made that the Applicants category AB licence is suspended for a period of six months from the date of this decision

4. I expressed the view that the Applicant's actions did not warrant the revocation of his firearms licence however they did warrant some action to be taken in relation to the licence. I considered that the Applicant was lacking in his knowledge of the obligations placed on a licence holder under the Act and that he should undertake some training in regard to those obligations before his licence is returned.

5. The Commissioner successfully appealed that decision. The Appeal Panel’s decision is recorded Commissioner of Police, NSW Police Force v Cseszko [2016] NSWCATAP 194. The Appeal Panel ordered:

1. Orders 1 and 2 made on 11 March 2016 are set aside.

2. The matter is remitted to the Tribunal as originally constituted with the following directions:

(a) the Tribunal is to re-determine the matter according to law and in accordance with the Appeal Panel’s reasons;

(b) the matter is to be re-determined without fresh evidence apart from any evidence of events or circumstances which have arisen since the hearing on 1 February 2016.

3. The remitted matter is listed for directions on 16 August 2016 at 10.30 am.

6. The Appeal Panel noted that there were three main grounds for the appeal. “Firstly, that the Tribunal did not have the power to suspend the firearms licence. Second that the Tribunal erred by not applying the test as to whether there was “virtually no risk” to public safety to allow the applicant to retain his firearms licence and third that the Tribunal gave inadequate reasons for its decision as to why the applicant’s firearms should not be revoked.”

7. In regard to the first ground the Appeal Panel found that the power to suspend a licence as provided for in section 22 of the Act was not available to the Tribunal when reviewing a decision under section 24 of the Act as to whether or not the licence should be revoked. The power to suspend in section 22 was not available to the Tribunal because that power has already been exercised as a first step before making a decision to revoke the licence.

8. The Tribunal’s jurisdiction to review the Commissioner’s decision to revoke the licence is pursuant to section 75 of the Act and the provisions of the Administrative Decisions Review Act 1997 (“the ADR Act”). The Tribunal is confined to making decisions which were available to the administrator at the time it made the decision under review.

9. The Appeal Panel did not need to address the second ground because of its finding in regard to the third ground. In that regard it stated:

While the Tribunal referred to the applicant’s fitness and propriety in this paragraph, it made no finding as to whether the applicant is a fit and proper person to hold a licence. We direct on remittal that the Tribunal make such a finding. In addition, as already indicated, the Tribunal has not made a finding as to whether or not it is in the public interest for the applicant to continue to hold a licence and, again, we direct on remittal that the Tribunal do so.

10. The Appeal Panel directed that the matter is to be re-determined without any fresh evidence apart from any evidence of events or circumstances which have arisen since the hearing on 1 February 2016. If anything has occurred since 1 February 2016 which is relevant to the Applicant’s fitness and propriety or to the public interest those matters should be before the Tribunal.

Issues for the Tribunal

11. The issues for the Tribunal to determine are whether the Applicant is a fit and proper person to hold a firearms licence and whether it is against the public interest for him to hold the licence.

Further Material

12. Neither party has filed further evidence. Both the Commissioner and the Applicant filed further submissions and the Applicant responded to the Commissioner’s submissions.

The Commissioner’s submissions

13. The Commissioner pointed to a number of findings that I made in the first decision. In particular the Commissioner noted:

In the First Decision the Tribunal (correctly) made findings that conduct of Applicant warranted some action to be taken in relation to his firearms licence, in circumstances where the Applicant's knowledge of the obligations placed on a licence holder under the Act was found to be lacking (First Decision, [75] - [78]) These findings included

1    The Applicant adopted a "rather casual" attitude to the handling of an air rifle in his son's presence and the manner in which it was stored while it was at his parents' property. (First Decision, L75])

2.   The Applicant had attempted to repair an air rifle in circumstances where he did not hold a Firearms Dealers licence (First Decision, [76])

3. The Applicant failed to notify the Firearms Registry of a change in his address (as required by section 69 of the Act) (First Decision, [76])

4. The Applicant demonstrated that he was somewhat lacking in his knowledge of the obligations placed on a licence holder under the Act (First Decision, [78])

5. The Applicant would benefit from a refresher course in relation to his obligations under the Act. (First Decision, [78])

14. The Commissioner contends that there is no evidence that the Applicant has addressed the concerns identified in the first decision. The Commissioner submits that the need to undertake a refresher course serves to demonstrate an absence of present fitness to hold a firearms licence. The Commissioner further submits that the findings made in the first decision would lead the Tribunal to the conclusion that there is an extant risk to public safety and therefore it is not in the "public interest" for him to hold a firearms licence.

The Applicant’s submissions

15. The Applicant notes the view that I expressed in the first decision that his actions did not warrant revocation of the firearms licence. He also notes that as his firearms licence expired in August 2016 he will be required to undertake a necessary course to enable him to obtain a licence. He submits that his application should be allowed as originally intended.

16. In response to the Commissioner’s submissions the Applicant submitted:

In respect to the Respondent's Submissions, as to paragraph 16:-

(a)   16(2) the Applicant was not required to hold a Firearm Dealers Licence as submitted by the Respondent.

Section 4 of the Act defines a firearms dealer, inter alia, as a person who in the course of [the course of carrying on a business … repairs or converts firearms or firearm parts] ...

The Applicant did not attempt to undertake the repair of the air rifle in the course of carrying out a business.

The Applicant was not required to be licenced to undertake the repair.

(b)   16 (3) the Applicant did fail to notify the Commissioner of Police within seven (7) days of changing his address, however, the location of where his firearms are stored had not changed. The rifles are stored at "The Armoury Stockade" where they have been inspected on numerous occasions and found to be properly and safely secured. This in itself does not warrant the revocation of licence and was not acted upon by the Commissioner.

(c)   16 (4) The Applicant has served in the Royal Australian Army and armed securely in both Australia and for a period of seven years in Iraq. He undertook regular weapons safety, weapons training, firing and skills.

In addition to training local forces he was required to undertake weekly firearms training and two times per moth live weapons training on the range.

The Applicants weapons and safety training is on par with Special Forces within the armed services and Police Force.

17. The Commissioner has not challenged the Applicant’s assertion that he was not required to be licenced to undertake the repair or that the location of where his firearms are stored had not changed.

Discussion

18. In the first decision I discussed a number of authorities relating to the expressions "fit and proper person" and the concept of the "public interest". I will not repeat that discussion here. However, I note that the Appeal Panel recently considered the concept of the "public interest" in Stiles v Commissioner for Fair Trading & Anor [2017] NSWCATAP 44. The Appeal Panel stated at paragraphs [34] – [36]:

34. We agree with the submission for the Commissioner that a finding that a person is not of fit and proper character to hold the type of licence under notice would necessarily also mean that it would be contrary to the public interest to allow the person to hold the licence.

35. Equally there can be cases, and this is an example of that kind, where the material might be problematic in relation to the question of fitness but strong in relation to the public interest. A person may not be so lacking in fitness as to warrant the conclusion that he or she is not a fit and proper person to hold the relevant licence. But nonetheless there may be matters in the material considered in that regard that properly found a case for denial of the licence in the public interest. There is no problem, as we see it, in an administrator (or the review tribunal) differentiating in that way.

36. It does not follow that because a person is ‘fit’ to hold a licence, that therefore it must also be in public interest for the person to hold the licence. The ‘public interest’ enables a range of factors some of which may be specific to the person (personal associations, health considerations, and so on) and others of which may be external to the person (need for more licences in a particular geographical area, number of licences already held, risks of penetration by criminal elements, and so on) that might militate against grant of a licence.

19. That view is relevant to the circumstances of this matter. In the first decision I stated that I held the view that the Applicant’s actions did not warrant revocation of the firearms licence. I held this view notwithstanding the findings that I made about his conduct. There is no evidence before me that leads me to change that opinion and therefore I remain of that view. In my view the Applicant is not be so lacking in fitness as to warrant the conclusion that he is not a fit and proper person to hold a firearms licence. I am satisfied that the Applicant is a fit and proper person to hold the licence.

20. However, in the first decision I also stated that I held the view that the Applicant would benefit from a refresher course in regard to his knowledge of the obligations placed on a licence holder under the Act. There is no evidence before me to suggest that he has undertaken any additional training in that regard since the first decision. In any event, the Applicant has indicated that his licence has expired and he will be required to undertake a necessary course to enable him to obtain a licence.

21. I agree with the Commissioner’s views in regard to public safety. In the first decision I referred to the decision in Ward v Commissioner of Police [2000] NSWADT 28 where the Administrative Decisions Tribunal's Deputy President Hennessy stated at paragraphs [27 – 28]:

"27 ...The question for the Tribunal is whether, based on all the evidence, it would have confidence that [the Applicant] 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."

22. The principal issue in determining public safety is therefore whether or not there is a risk to the safety of the public if the Applicant retains the relevant licence: Vella v Commissioner of Police [2003] NSWADT 91.

23. I agree with the Commissioner that my finding that the Applicant has demonstrated that he is somewhat lacking in his knowledge of the obligations placed on a licence holder under the Act and that he would benefit from a refresher course in relation to his obligations under the Act “leads logically to the conclusion that because of his demonstrated lack of knowledge, and absent the undertaking of that training, there is an extant risk to public safety”.

24. In these circumstances, it is my view that it is not in the public interest for the Applicant to hold a firearms licence until such time as he undertakes a refresher course in relation to his obligations under the Act.

25. That being the case, the correct and preferable decision is to affirm the decision to revoke the Applicant’s licence.

26. However, I recommend to the Commissioner that if the Applicant undertakes the additional training, if he reapplies for a firearms licence, and if he does not come to the attention of the police for any other reason prior to the consideration of his licence application, then the licence should be granted.

Order

1.   The decision of the Commissioner of Police to revoke Mr. Cseszko’s firearms licence 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: 27 March 2017