EMB v Commissioner of Police

[2021] NSWCATAD 247

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EMB v Commissioner of Police [2021] NSWCATAD 247

Hearing dates:

Hearing on the papers on remittal from Appeal Panel

Date of orders:

19 August 2021

Decision date:

19 August 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Naida Isenberg, Senior Member

Decision:

The Respondent’s decision is set aside and the Tribunal substitutes a new decision to grant a category AB firearms licence to the Applicant, for the genuine purpose of ‘sport/target shooting’.

Catchwords:

FIREARMS LICENCE - fit and proper person - serious charges unrelated to firearms dismissed at trial – public interest

Legislation Cited:

Civil and Administrative Tribunal Act 2013
Crimes Act 1900

Criminal Procedure Act 1986
Firearms Act 1996

Firearms Regulation 2017

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
Commissioner of Police. NSW Police Force v EMB [2020] NSWCATAP 262

Commissioner of Police v EMB [2021] NSWCATAP 63

Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55
EMB v Commissioner of Police [2020] NSWCATAD 255

Grant v Commissioner of Police [2020] NSWCATAD 158

Newman v Commissioner of Police [2018] NSWCATAD 17

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Roads and Maritime Services v Rifahi [2015] NSWCATAP 43 at [36]

Shi v Migration Agents Registration Authority [2008] HCA 31

Sobey v Commercial Agents Board (1979) 22 SASR 70

Category:

Principal judgment

Parties:

EMB (Applicant)
Commissioner of Police (Respondent)

Representation:

Counsel:
C Nowlan (Applicant)

Solicitors:
Johnson & Sendall (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2020/00152964

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 publication or disclosure of the name of the Applicant, or any of the other individuals named or identifiable in the evidence before the Tribunal (other than police officers), is prohibited.

REASONS FOR DECISION

1. The Applicant had been licensed to possess and use firearms from 1993 until 30 May 2017 when his licence was suspended. While suspended, his licence expired and, on 19 June 2019, he applied for a new Category AB licence. That application was refused by the Respondent on the basis that it is not in the public interest for the Applicant to hold a firearms licence. The Applicant sought internal review of that decision but, as he was not notified of the outcome of the review within 21 days, he sought review by this Tribunal. I heard the matter on 8 October 2020 and my decision and reasons were published on 20 October 2020. I set aside the Respondent's decision and substituted a new decision to grant the Applicant a category AB firearms licence, for the genuine purpose of ‘sport/target shooting': EMB v Commissioner of Police [2020] NSWCATAD 255 (Original Decision).

2. The Respondent sought leave to appeal the Original Decision and applied for a stay of the decision. The stay application was dismissed: Commissioner of Police, NSW Police Forcev EMB [2020] NSWCATAP 262. The Appeal was heard by the Appeal Panel on 12 February 2021 and, on 16 March 2021, leave to appeal was granted and the appeal was allowed: Commissioner of Police v EMB [2021] NSWCATAP 63. The Original Decision was set aside and the matter was remitted to the Tribunal, as originally constituted, for reconsideration in accordance with the Panel's reasons, without further evidence.

What were the Appeal Panel's reasons in allowing the appeal?

3. At [51] of the Original Decision I said:

51…. The conduct does not lead me to a view that the Applicant is not a fit and proper person to hold a firearms licence.

4. Further, at [58] I said:

58. In summary, therefore, I do not accept that the Applicant fails the fit and proper person test.

5. The Appeal Panel considered that my findings at [51] and [58] that the Applicant did not fail the fit and proper person test, was an inversion of the statutory test, which requires that the Tribunal address the question whether it could positively be satisfied that the Applicant was a fit and proper person. It held, at [45]:

45. In the case of the Firearms Act, s 11(3)(a) requires the decision maker, whether the Commissioner or the Tribunal on review, to form a positive state of satisfaction that an 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". Absent such a state of satisfaction, a licence cannot be issued.

6. Put simply, the result of the Appeal Panel’s ruling is that my finding that I did not accept that the Applicant fails the fit and proper person test, should not have been couched in those terms, and that I should have positively stated, if 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".

7. On remittal, submissions were made on the Applicant’s behalf which, effectively sought to canvass the Appeal Panel’s decision. For example, submissions were made that in the Original Decision I had, by virtue of my decision in the Applicant’s favour, made a positive finding that the Applicant had met the fit and proper person test. While it was submitted on the Applicant’s behalf that I did in fact make such a positive finding of fact although I did not explicitly state it in those terms, the Appeal Panel has found that my findings at [51] and [58] were inadequate. Submissions were also made as to the availability of the “slip rule” in s 63(3)(b) of the Civil and Administrative Tribunal Act 2013 to effectively convert the double negative into a positive finding. This does not appear to have been argued before the Appeal Panel, and in any event, is not now open for consideration.

8. The Appeal Panel also considered that my reasons did not demonstrate “appropriate engagement” with the child sexual assault material and held at [57]:

57. ... In contrast to the careful consideration of the weight to be given to EMB's traffic history. and to the absence of any awareness in the character references of the circumstances giving rise to the refusal of the firearms licence, the Tribunal's conclusion at [51] does not reflect an appropriate engagement with the significance of the child sexual assault conduct in the context of the statutory regime.

9. At [51] of the Original Decision, before concluding that the Applicant’s conduct did not lead me to a view that the Applicant is not a fit and proper person to hold a firearms licence, I found:

51. … the Applicant engaged in conduct which can only be described as abhorrent. However, it did not involve firearms, nor have there been any incidents whatsoever in his capacity as a gun owner, nor in relation to firearms at all. ...

10. The Appeal Panel concluded that I had adopted an unduly narrow approach to the relevance of the child sexual assault conduct and failed to engage in the "active intellectual process" and referred to Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 and Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389.

11. Against this background I turned to address again the question of the Applicant’s fitness and propriety to hold a firearms licence, and the public interest considerations.

Fit and proper person: s 11(3)(a) of the Firearms Act 1996 (Act)

12. At [45] of the Original Decision I observed that the Applicant’s firearms licence was suspended on the basis of the child sexual assault charges brought against him in 2017. Also, when his fresh application was refused in 2019, by which time the charges had been dismissed, the Respondent did not address whether the Applicant was a fit and proper person: at [50]. In the Original Decision I did not consider the Respondent’s previous limited approach to have been significant, although, as I observed, it is difficult to understand the Respondent’s change in position before the Tribunal, given that the circumstances in relation to the charges remained as they were in 2019. Here, as in the Original Decision, I am obliged, nonetheless, to consider the fit and proper person test.

13. Section 11(3)(a) of the Act provides that a licence must not be issued unless the Commissioner (and hence the Tribunal on review) 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.

14. Firstly, I have accepted that the Applicant had been found guilty of common assault at licensed premises in the ACT in 2007 and that while the offence was proven, no conviction was recorded and the Applicant was released on a 12-month good behaviour bond. There was no other information available to me about the circumstances of the offence. I observe there was no allegation that the offence involved a firearm, although this is not determinative. In the absence of more information about the circumstances of the matter, which attracted a very low penalty, and which occurred now 14 years ago, it can be given little weight.

15. At [7] – [14] of the Original Decision I discussed the allegations of child sexual assault, and I do not repeat them here. I do not understand the parties to take issue with my summary of the allegations.

16. At [21] of the Original Decision I acknowledged that, in accordance with Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55 at [20] material considered in the criminal proceedings will be relevant to the exercise of a licensing discretion even though the particular offences charged have not been proven and that I am obliged to take into account any relevant material going to the question of what is the correct and preferable decision in connection with the particular administrative decision.

17. At [28] of the Original Decision I observed that the Applicant had been committed for trial, that is, there was a prima facie case for him to answer. As discussed, my task is to consider his conduct on the balance of probabilities. The only evidence I have before me in relation to the alleged child sexual assault allegations is that provided in, and associated with, the Police brief of evidence, notably the detailed account by the first complainant. Because the trial was abandoned part way through, there was no evidence about the Applicant’s response to the charges, other than his denial through his not guilty plea; his statement in the present proceedings did not address at all the conduct which gave rise to the charges. I emphasise that, as the only evidence I have before me is the Police brief of evidence, and in the absence of any contradictory evidence by the Applicant, I consider I must find that, on the balance of probabilities, that the conduct complained of occurred.

18. 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. Further, one question that may be considered is whether improper conduct has occurred, and whether the general community will have confidence that it will not occur again. The Respondent submitted that the Applicant’s conduct, which I described as “abhorrent”, demonstrates that he has a disregard for the criminal law and the standards of conduct tacitly accepted and acknowledged to be for the good order of society and for the wellbeing of its members, and that, in our system of laws, the criminal law is the most important system for the regulation of conduct. The Respondent further submitted that in order to properly reflect an appropriate engagement with the significance of the child sexual assault conduct in the context of the statutory regime, I need to consider the necessary relationship between the Applicant's disregard for the standards of the criminal law, his lack of moral integrity and his capacity, propensity and willingness to fulfil regulatory obligations. I observe that the conduct occurred in 2004 - 2007, now at least 14 years ago. There was no evidence whatsoever that the Applicant has engaged in any inappropriate sexual conduct since the events the subject of the charges. Contrary to the Respondent’s submission that the Applicant has a disregard for the criminal law, there was no evidence that he has come to attention at all since 2007. It is well established that the 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: Shi v Migration Agents Registration Authority [2008] HCA 31. Consequently, I do not consider that it can be said that the Applicant currently has a disregard for the criminal law.

19. The Appeal Panel considered that by focusing on conduct associated with possession or use of a firearms, and discounting the child sexual assault conduct found to be true because it did not have such an association, I adopted an unduly narrow approach to the construction of the term "fit and proper" in its statutory context. However, I did not understand the Appeal Panel to take issue with my reliance on Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 at [22], where 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. 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.” The statutory regime under the Act is protective, not punitive. The test is directed towards maintaining and encouraging appropriate standards in the use of firearms.

20. As I previously observed, neither the allegations of child sexual assault nor the common assault charge involved a firearm and, most relevantly, the Applicant has a decades-long history of unblemished activity in relation to firearms. The Respondent also pointed out that the Act requires licensees to be persons who can be relied upon to observe their obligations in contexts where they are not supervised and in respect of firearms which may present danger to public safety or which may become the means for, or the focus of, criminal activity. There was no evidence whatever that the Applicant is unable to manage his firearms unsupervised or that he has criminal associates.

21. I am satisfied that the Applicant can be trusted to have possession of firearms without presenting a danger to the public safety or peace. Again, contrary to the Respondent’s submissions, there is no evidence that would suggest the Applicant does not have the capacity, propensity and willingness to fulfil his regulatory obligations with respect to firearms.

22. It was submitted on the Respondent’s behalf that I should have had regard to the presence of any conduct which forms the basis of a criminal offence identified in the Act. For example, s 11(5) read with cl 5 of the Firearms Regulation 2017 (Regulation), requires mandatory refusal of a firearms licence application in the event of a conviction for criminal offences for 'sexual offences against children and adults' under Part 3, Division 10 of the Crimes Act.

23. As the Respondent noted in its submissions s 3(1)(a) of the Act states that one of the Act’s express 'underlying principles' is "to confirm firearms possession and use as being a privilege that is conditional on the overriding need to ensure public safety". The Respondent submitted that the statutory regime ensures that licensees are persons of moral integrity and, having regard for the law is one means by which public safety is achieved. I do not regard “moral integrity” necessarily impacts “public safety”.

24. The Respondent submitted that disregard for the criminal law, and fundamental moral precepts regarding sexual conduct with children which are embodied in the criminal law, represents a disregard which is dangerous to the system of firearms regulation. I do not accept that the conduct, of itself, represents a disregard of the criminal law which is dangerous to the system of firearms regulation.

25. At [43] – [48] of the Original Decision, I discussed the references which the Applicant had supplied in support of his application. I need not repeat my observations.

26. In Roads and Maritime Services v Rifahi [2015] NSWCATAP 43 (Rifahi) at [36] the Appeal Panel considered that the Tribunal would fall into error if it adopted a rule of universal application or even a general guideline that a person serving a sentence for a criminal offence should not be considered to be fit and proper or of good repute. In the present matter, the Applicant has not been convicted of an offence, nor have charges been proved to the criminal standard. It is only on the balance of probabilities that I have found the conduct occurred, because of the absence of evidence to the contrary. Applying the approach in Rifahi, the Applicant’s ‘abhorrent’ conduct, does not necessarily preclude a finding that he is a fit and proper person to hold a firearms licence. In Grant v Commissioner of Police [2020] NSWCATAD 158 Dr Lucy SM found the applicant in that matter to be a fit and proper person notwithstanding a criminal history of trespassing, illegal hunting, reckless driving, driving whilst suspended, speeding, fighting and cultivating cannabis. In Newman v Commissioner of Police [2018] NSWCATAD 17 NS Isenberg SM issued a licence to an applicant who had previously been a long term member of the Gladiators OMCG. These cases demonstrate that, notwithstanding objectionable conduct, an applicant may still be considered to be a fit and proper person to hold a firearms licence.

27. I consider 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. I formed this view notwithstanding the evidence of an assault charge (2007), a poor history of traffic offences (to 2005) and the conduct which gave rise to charges of child sexual assault (2004-2007).

The public interest: s 11(7) of the Act

28. Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. As noted at [59] of the Appeal Panel Decision, the public interest criterion confers a discretion on the Commissioner, and the Tribunal on review, to refuse to issue a licence if satisfied that to issue a licence would be contrary to the public interest.

29. The Appeal Panel found no issue with how I explained the concept of the "public interest" at [59] - [61] of the Original Decision, however, it determined at [60] that:

60....while the Tribunal gave detailed consideration at [67] to the relevance of EMB's traffic history to the question of whether it is contrary to the public interest for EMB to hold a firearms licence, and at [68] to the Commissioner's concerns about his genuine reason for seeking a firearms licence, the only reference to the child sexual assault charges was the statement at [65] that those offences did not involve a firearm. While s11(7) confers a discretion, and while it is, subject to considerations of unreasonableness, for the decision maker to determine the weight to be given to any relevant consideration, the Appeal Panel is not satisfied that the discretion was properly exercised in the sense referred to in Azriel.

30. Before me the Respondent submitted that, when considering what is in the public interest, I should consider the underlying principles and objectives of the Act, the strict controls under that Act, the concern of the licensing regime with protecting the public, and the need to give public safety paramount consideration.

31. The Respondent repeated its contention referred to at [18] above in support of its submission that I should be satisfied that the issue of the licence would be contrary to the public interest, and these contentions were discussed there.

32. Consistent with the reasons of the Appeal Panel, my consideration of the Applicant’s conduct is not confined to whether it occurred in association with a firearm. One the one hand there is the Applicant’s abhorrent conduct, but I note my findings at [17] above as to why the conduct was found to have occurred. Further, at [18] above I observed that the conduct occurred in 2004 - 2007, now at least 14 years ago. On the other hand, in the Original Decision I found a number of factors, in relation to public safety that weighed in favour of the Applicant. At [65] I observed that none of the alleged offences involved firearms. At [66] despite holding a firearms licence for many years, there was no evidence that the Applicant had ever created any danger. At [67], I considered that although the Applicant had a poor traffic history up until 2005 this does not indicate an ongoing disregard for the law including regulatory schemes. Finally, I found, at [68] that there was no evidence that the Respondent intends to use a firearm for any purpose other than the genuine purpose stated in his application.

33. The Applicant’s submission added that there were other matters which I should take into account in the Applicant’s favour:

1. the Applicant's father served in the Royal Australian Army and taught his son responsible gun ownership.

2. the Applicant himself served in the Royal Australian Army.

3. the Applicant had held a licence for decades without incident.

4. the Applicant had never been charged, much less convicted of a firearms offence.

5. in addition to his own recreational shooting, the Applicant coaches a disabled shooter who competes at international competitions.

34. In relation to items (1) and (2) above, I agree these matters were referred to in the reference provided by the Applicant’s mother. They do not, however, add to the Applicant’s case in my view, as I had addressed at [60] of the Original Decision that the Applicant had safely used firearms since the age of 13. That he and his father both served in the ADF takes the matter no further.

35. Similarly, in relation to (3) and (4) above, at [60] I noted that the Applicant had held a licence for many years without incident, and consequently he had not been charged with any firearms offence.

36. In relation to (5) above, I also had taken into account at [60] that the Applicant coaches a disabled shooter who competes at international competitions.

Conclusion in relation to the public interest

37. The underlying principles of the Act stated in s 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. On balance, I do not think the evidence warrants a finding that it would be contrary to the public interest for the Applicant to hold a firearms licence, and I so find.

DECISION

38. The Respondent’s decision is set aside and the Tribunal substitutes a new decision to grant a category AB firearms licence to the Applicant, for the genuine purpose of ‘sport/target shooting’.

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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: 19 August 2021