ERD v Commissioner of Police, NSW Police Force

[2021] NSWCATAD 183

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

ERD v Commissioner of Police, NSW Police Force [2021] NSWCATAD 183

Hearing dates:

26 May 2021

Date of orders:

30 June 2021

Decision date:

30 June 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

N Isenberg, Senior Member

Decision:

The decision under review is set aside

Catchwords:

Firearms licence - proven offence – subject to conditional release order – fit and proper person - public interest

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Crimes (Sentencing Procedure) Act 1999

Firearms Act 1996

Cases Cited:

AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5
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
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16
Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63.
Grant v Commissioner of Police [2020] NSWCATAD 158

Haining v Commissioner of Police, NSW Police Service [1999] NSWADT 6

Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218
Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89
Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127
Kalinic v Commissioner of Police [2006] NSWADT 227

Lee v Commissioner of Police, NSW Police Force [2020] NSWCATAS 144
Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97
Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206
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
Parisi v Commissioner of Police, NSW Police Force [2018] NSWCATAD 155

Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137
Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794
Re Percival and Australian Securities Commission [1993] AATA 196; (1993) 30 ALD 280
Sawires v Commissioner of Police [2010] NSWADT 4
Tzoudas v Ministry of Transport [2008] NSWADT 350
Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28

Category:

Principal judgment

Parties:

ERD (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Counsel:
R Coffey (Respondent)

Solicitors:
Hartmann & Associates, Solicitors (Applicant)
Commercial and Administrative Law, NSW Police (Respondent)

File Number(s):

2021/00043017

Publication restriction:

nil

REASONS FOR DECISION

1. On 17 December 2019 the Applicant, ERD, who has held a firearms licence for over 39 years, had his licence (Categories AB and H) suspended following his being charged with an offence under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 - 'stalk/intimidate intend to fear physical etc harm (personal) T2'. On 6 October 2020 his firearms licence was revoked. That decision was affirmed in internal review, and the Applicant now seeks review of the decision by this Tribunal.

Relevant legislation

2. 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

...

(2) The objects of this Act are, relevantly, as follows:

(a) – (c)

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

…

3. Section 24(2)(a) of the Act provides that a firearms licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. Section 11(5)(d) of the Act provides that a licence must not be issued to a person who is subject to a good behaviour bond (now known as a conditional release order) in relation to an offence prescribed under the Regulation. Clause 5(1)(d)(iii) of the Firearms Regulation 2017 (Regulation) provides that a prescribed offence is one involving stalking or intimidation.

4. Section 24(2)(c) provides that a licence may also be revoked if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence.

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

Evidence

6. In addition to documents filed under s 58 of the Administrative Decisions Review Act 1997, I had before me undated statements from the Applicant and his wife. The Applicant gave evidence and was cross examined, as was his wife. The Applicant had provided several references in support of the internal review: Kerry Bedelph dated 12 December 2020, William Reid, the President of Northern Districts Pistol Club dated 27 November 2020, Neil McCormick dated 10 December 2020, Rodney Smith (undated), Trevor Patrick, Honorary Treasurer, Northern Districts Pistol Club dated 28 November 2020, and Victor Di Tommaso dated 10 December 2020. The Respondent required Messrs Bedelph and Reid for cross examination. The Applicant also provided a Certificate of Appreciation by Superintendent Joyce of the NSW Police, in relation to his assistance provided in a roadside emergency in August 2018.

Tribunal’s approach

7. Section 63 of the Administrative Decisions Review Act 1997 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 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: 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].

CONSIDERATION

What led to the revocation of the Applicant’s licence?

8. On 12 November 2019 the Applicant was charged with an offence under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 - 'stalk/intimidate intend to fear physical etc harm (personal) T2'. In broad terms, the charge was as a result of an altercation between the Applicant and the driver of another vehicle in a carpark. As a result of the charge the Applicant’s firearms licence was suspended on the ground of: “subject to prescribed offence relating to violence” and “not in the public interest”. The notice of revocation referred specifically to the charge of 'stalk/intimidate intend to fear physical etc harm (personal) T2' and referred to s 24(2)(d) of the Act and cl 20 of the Regulation – public interest.

9. On 21 October 2020, after a defended summary hearing, the Applicant was found guilty of the offence and sentenced to a conditional release order (CRO) without conviction pursuant to s 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999 for a period of 2 years, from 21 October 2020 to 21 October 2022.

10. The Respondent, relying on the Police Facts Sheet, summarised the incident that gave rise to the suspension and subsequent revocation as follows.

On 21 September 2019, the Applicant parked his car in the carpark of the Castle Towers shopping centre. He left his car and began walking to the entry of the centre. At this time, a male drove his car into the car park and commenced to reverse into a parking bay between the store entry and the Applicant's car.

At the time of reversing, the Applicant turned around and walked back to his car. Upon stopping in the parking bay, the male looked up and saw the Applicant standing a short distance aware from the front drivers' side of his car. The Applicant had his arm out and was looking at the male in the drivers' seat.

The male said "yeah, what's your fucking problem mate, yeah mate, yeah what's your fucking problem". The Applicant raised his left hand up to and covering his mouth in a motion suggesting that the male should be quiet or stop speaking. The Applicant walked over to the passenger side of the male's car. He then began speaking, while walking back to the driver's side of the male's car, where he was motioning or gesturing for the male to get out of his car. The Applicant stood outside the driver's door and "get out and your (sic) dead".

The Applicant walked to the front of the male's car and held up and item, understood to be a mobile telephone, in a manner that appeared he was taking photographs of the male and the car. The Applicant walked over to his car and appeared to be looking for something. The Applicant continued to speak aggressively at the male while he sat in his car.

The Applicant reached into the rear seat of his car, before turning around and attempting to open the passenger door of the male's car. The Applicant said "/ am not threatening you. You nearly ran me over".

The Applicant then moved to the front of the male's car while speaking on his mobile telephone, before walking around the entirety of the male's car, stopping for a short period and then walking away.

The male attended Castle Hill Police station to report the incident.

11. In his evidence before me the Applicant explained that the incident had occurred when his wife was overseas attending to her ill mother. He had gone to the shops to buy meat for a BBQ for his sons before they were all to watch a rugby match on television.

12. The Applicant said that the other car had hit him, by backing into him. He could not now recall if it was his left or right arm that was struck but it was sore and he was rubbing it. There was “no lasting damage”, except for “the shock [of being struck]”. The Applicant said that he approached the other vehicle, holding out his arm and saying “you’ve hit me, you’ve hit me.” The other driver continued reversing and “looked aggressive”. The Applicant said he walked to the passenger side to speak to the driver and he did not intend to be loud or aggressive. He went around to the back and photographed the other car’s number plate, and then pretended to phone the Police. He then went back to his car to retrieve the shopping bag he had forgotten to take with him to the shops, and he considered the incident over. As he came by the other car again, he repeated, “you’ve hit me”. The Applicant said he wanted to talk to the other driver to get his name, so tried to open the passenger door. The other driver was undoing his seat belt and trying to get out of the car and had his phone out. The Applicant thought he was videoing him and understands the other driver gave the video and his dashcam to Police.

13. The Applicant admitted that he had used the words "get out and you’re dead". He said though, that he had not recalled using those words. He was taken in cross-examination to a Police Court Attendance Notice dated 12 November 2019 requiring his attendance at the hearing on 21 October 2020, and which was said to have been accompanied by the Police Facts Sheet in which he was alleged to have said those words. Although the Applicant thought the Notice and accompanying Facts Sheet may have been provided to him on about Christmas Eve 2019, he did not recall the contents of the Facts Sheet, and thought he may have simply forwarded on to his then solicitor. He said that it was not until the other driver’s dashcam was played to him by his solicitor the day before the hearing that he accepted that he had said those words, although they were not actually audible. Nonetheless, the matter continued on a defended basis, although the Applicant could not recall giving evidence himself.

14. The Respondent was critical of the Applicant raising at the hearing, allegedly for the first time, that he had been struck by the other vehicle, while not going so far as to suggest this was recent invention. The Applicant did not refer in his statement in the present proceedings to his version of the events, nor was it clear on what basis he had defended the matter in the Local Court. The solicitor for the Applicant in these proceedings was not his solicitor in those proceedings, so was unable to assist as to what had transpired. Although the Applicant was cross-examined before me about the events and that he had not previously claimed to have been struck, it was not squarely put to him that the contention was untrue. I observe that the Applicant’s present solicitor made the contention in his submissions in support of the internal review and that Mr Reid, in his reference dated 27 November 2020 (which he confirmed at the hearing) and provided to the Respondent for purpose of the internal review, wrote that the Applicant had been struck by the other vehicle. It was therefore open to the Respondent to check Police records to ascertain if the contention had been raised before the Magistrate. Similarly, the Applicant said he had provided Police with a statement in relation to the criminal proceedings but that was also unavailable to me, and this also, presumably could have been accessed by the Respondent. The Applicant said that although the dashcam audio on the other car was poor, the “thump” into him was audible. Presumably the Respondent could have accessed this material as well. The Applicant‘s wife, who was not in the Applicant’s vehicle at the time of the altercation, said in her evidence before me, that although she did not have a clear recollection of when her husband told her what had occurred, he had told her “everything”, including that he had been hit by the other vehicle. I observe too, that the Respondent’s submissions referred at [58] to the Applicant having been “hit or nearly hit by a reversing car”. The Respondent submitted that it is not sufficient for the Applicant to explain his conduct by simply suggesting it was a response to having been hit or nearly hit by a reversing car. Ultimately though, the Applicant did not deny using the words as alleged.

15. The Applicant said he was not aggressive or violent and had never even seen the inside of a police station. He said he “lives with what he did every day”. He said that his mother, who had raised him on her own since he was an infant, was so disappointed in him as that was not the way she had brought him up. He is trying to forget the whole thing - “the stupid 5 seconds of [his] life”. The Applicant‘s wife gave evidence that her husband is not prone to bad temper or anger outbursts; he suffers no mental health issues. She has known him for many years and considered the outburst to be entirely out of character.

16. The Applicant said he shoots clay targets and pistol shooting competitively and hunts with his son both in Australia and overseas 2-3 times a year. He pistol-shoots most weekends. He conceded that he does not require a firearms licence for the purpose of his business, nor does he continue to own an olive farm that may have been relevant to initial genuine reason for a firearms licence.

What is the effect of the proven offence on the Applicant’s firearms licence?

17. Had the Applicant been applying for a firearms licence following being placed on a CRO for a prescribed offence, it would have been mandatory that such an application be refused: s 11(5)(d) of the Act and cl 5(1)(d)(iii) of the Regulation. However, the power to revoke a licence following being place on a CRO is not mandatory: s 24(2)(a) of the Act.

18. Judicial Member Montgomery in Kalinic v Commissioner of Police [2006] NSWADT 227 (Kalinic), a matter where the applicant had been convicted of a prescribed offence, said at [23], that it would be anomalous if a conviction, after a licence has been granted, is treated totally differently to a conviction before a licence application: see also Maloney v Commissioner of Police, NSW Police (22 November 2004, unreported) (Maloney)and Botros v Commissioner of Police, NSW Police Service [2000] NSWADT 6, Mills v Commissioner of Police, NSW Police Force [2014] NSWCATAD 38 at [42], Hamshere v Commissioner of Police NSW Police Force [2012] NSWADT 244 at [14]. As I have said previously, in general, I agree with this approach: see, for example, Parisi v Commissioner of Police, NSW Police Force [2018] NSWCATAD 155; Easey v Commissioner of Police [2020] NSWCATAD 319 (Easey).

19. In the context of a revocation under s 24(2)(a) of the Act in Maloney JM Higgins considered that it only in special or exceptional circumstances should the discretion not to revoke the licence be exercised. In Easey I applied the Maloney test in exercising the Tribunal’s discretion notwithstanding the Applicant’s convictions for affray and common assault. However, since Easey SM Dr Lucy, in Grant v Commissioner of Police [2020] NSWCATAD 158 (Grant) after considering the authorities, preferred, at [31], instead of applying the Maloney test, to approach the question of whether the decision to revoke Mr Grant’s licence was correct and preferable one, by having regard to the terms of s 24(2)(a) of the Act in its statutory context, which includes the Act’s principles and objects.

20. The Respondent submitted that the approach in Grant was contrary to the statutory intention and earlier approach taken by the Tribunal, and presumably on the basis that to require “special or exceptional circumstances” is to apply a higher standard. The two approaches are, in my view, not inconsistent. It is clear that the Tribunal must exercise its discretion in determining a review in a manner that promotes the principles and objects of the Act, and that the circumstances of each Applicant are to be considered, especially in light of the “anomaly”, to which I have referred.

21. It was also submitted on the Applicant’s behalf that, in any event, the Maloney test should not be applied in circumstances where there no conviction has been recorded: cf s 24(2)(a) applying s 11(5)(b) of the Act. I consider that the same principles in relation to the “anomaly” in circumstances where, as I have observed, had the Applicant been applying for a firearms licence following being placed on a CRO for a prescribed offence, the application would be subject to mandatory refusal.

22. In this matter the Applicant’s reasons for having a licence are that shoots clay targets and pistol shooting competitively and hunts with his son both in Australia and overseas. He pistol-shoots most weekends. His reasons for having a firearms licence are not compelling - they are not vocational, nor related to the control of feral animals affecting his livelihood. In essence, he shoots as a hobby.

23. It was submitted on the Applicant’s behalf in the internal review application that the Applicant’s offending was trivial, and referred to Lynch v Commissioner of Police, NSW Police Service [2002] NSWADTAP 43 at [47] where the Appeal Panel said in relation to s 24(2)(b)(ii) of the Act, which equally applies to s 24(2)(a):

… [the fact an individual] escaped a criminal conviction does not mean that he should therefore automatically escape an administrative sanction against his licence. It is necessary for an administrator to take a stand in dealing with serious contraventions that is seen as a credible by the broader community, and sends the appropriate signal to licence-holders as to what is unacceptable. (Tribunal emphasis)

24. As was correctly pointed out on behalf of the Applicant, that case referred to serious contraventions. In that matter, at the Local Court multiple firearms offences had been found proven: three offences of possess unregistered firearm, six offences of not keep firearm safely and one of not having approved storage as a holder of a Category AB firearms licence. This matter is clearly quite different. The Magistrate clearly did not consider the offending to be at the higher end of the scale as no conviction was recorded and he was placed on a 2 year CRO.

25. The Respondent submitted that Grant, in which the decision to revoke the Applicant’s firearms licence was set aside, is distinguishable from the present matter on its facts, although it it is difficult to see the point of distinction the Respondent sought to make. There, the proven offence was: “Cultivate prohibited plant – small quantity” under s 23(1)(a) of the Drug Misuse and Trafficking Act 1985 and there was also evidence that Mr Grant had engaged in a fist fight, although it may have been provoked.

26. I accept that the Applicant has held a firearms licence for about 39 years. During that time he has not come to the attention of Police, neither in relation to his firearms nor otherwise, other than in relation to the matter that gave rise to the revocation. As to the incident, I accept that it was out of character. By all accounts – his referees and his wife, as well as on his own evidence - his conduct was uncharacteristic.

27. I do not consider that the circumstances in this matter which gave rise to the Applicant being subject to a CRO provide an appropriate basis on which to revoke his firearms licence; the primary concern of the firearms legislation is public safety and he has safely used firearms for 39 years.

28. For these reasons I consider that the discretion in s 24(2)(a) of the Act should be exercised in the Applicant’s favour.

Fit and proper person: s 24(2)(c) of the Act

29. Section 24(2)(c) of the Act provides that "a licence may be revoked if the Commissioner (and hence the Tribunal on review) is of the opinion that the licensee is no longer a fit and proper person to hold a licence".

30. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (Bond), Mason CJ explained, at 380, that:

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.

31. Toohey and Gaudron JJ said at 380:

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.

32. A person's fitness is to be considered in the light of the activities that the person will undertake: see In Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127 at 156-7, Re Percival and Australian Securities Commission [1993] AATA 196; (1993) 30 ALD 280, at 290, Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794, at [41].

33. 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 characters 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.

34. In Haining v Commissioner of Police, NSW Police Service [1999] NSWADT 6 at [41] O'Connor DCJ observed:

[whether] a person is 'fit and proper' to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objectives leading to regulate the industry.

35. The "nature of the industry" and the "public policy objectives leading the legislative to regulate the industry" are relevant in this case. The Applicant's fitness and propriety to continue to hold a licence under the Act is therefore to be considered in light of the legislature's purpose of minimising the high risks associated with firearms, addressing related public safety issues, through a licensing regime, and the key objective underpinning the Act, that firearm ownership and use is a privilege and not a right.

36. In Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 at [22], JM Higgins stated that in the context of firearms licensing, when considering if an Applicant is a fit and proper person, it should be considered whether their conduct is such that the applicant can be trusted to have possession of firearms without presenting a danger to the public safety or peace. In the present matter the proven offence did not involve a firearm, nor have there been any incidents whatsoever in his capacity as a gun owner, nor in relation to firearms at all. Again I observe that the offence was clearly considered by the Magistrate to be at the lower end as the Applicant was only placed on a CRO.

37. I accept that the available information about the offence may be indicative of some volatility in the Applicant at that time, but that this, on the evidence, was uncharacteristic. The information about the offence does not lead me to a view that the Applicant would use a firearm if provoked.

38. The Respondent was critical of the Applicant for not providing evidence explaining what strategies he now has in place to ensure that such a response does not occur again. The Respondent accepted that any person may be upset, alarmed, shocked or angry, but submitted that this does not explain “the threat”. I do not consider that the evidence supports a finding that the Applicant intended to carry out the threat to kill the other driver. The context in which the incident took place, must be understood. It appears that the incident was an accident. While there is no suggestion that the other driver was driving in a dangerous or reckless manner or that he was acting in a manner intending to harm the Applicant, on the evidence and as conceded by the Respondent, the Applicant was hit or nearly hit by the other vehicle.

39. Evidence going against the Applicant's fitness and propriety to hold a firearms licence must be weighed by the Tribunal against any evidence of the Applicant's good character: Mason J in Bond at [388]. The Applicant relied on references from his wife and fellow members of his shooting club, and others with whom he shoots. The references, the Respondent submitted, record only a very limited outline of the circumstances of the incident, and do not indicate that the referees were aware that the Applicant had made the threat and that he had attempted to open the other driver’s door, or that they had read the Police Fact Sheet or brief of evidence. There was mention of the "lack of compassion" by the other driver, which may be consistent, in my view, with the Applicant’s complaint that he had been hit by the other car. Similarly, there were multiple references to “provocation”. The Respondent submitted that, consistent with the Tribunal's reasoning in Tzoudas v Ministry of Transport [2008] NSWADT 350 at [42], and in circumstances where the referees do not articulate an awareness of the circumstances giving rise to the refusal of the Applicant's firearms licence, that these references, should be given little or no weight: per Sawires v Commissioner of Police [2010] NSWADT 4 at [52] and [53]. I consider that the referees appear to have had a good general grasp of what had transpired during the altercation, and this was clear at least, from the oral evidence of Messrs Bedelph and Reid.

40. The Respondent also submitted that the references are “imbedded within a personal association or friendship with the Applicant”, but this criticism is ill-founded – the nature of a reference necessarily requires an association with an applicant; it would be unusual if it were otherwise. Indeed, if the Applicant were not in a “personal association” with the Applicant, the weight of the references would be likely to be limited.

41. In all the circumstances, having regard to the findings above, I am satisfied that the Applicant continues to be a fit and proper person to hold a firearms licence.

The public interest: s 24(2)(d) of the Act and cl 20 of the Regulation

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

43. The expression “public interest” is not defined in the Act. A decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the ‘public interest' is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. The “public interest” factor allows a consideration of issues going beyond the character of the applicant to be taken into account. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].

44. The Applicant’s interest in holding a firearms licence is, primarily as a hobby, which he appears to engage in at a competitive level. 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. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]. The concept includes standards acknowledged to be for ‘the good order of society and for the well-being of its members’: Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63.

45. The Tribunal has referred many times to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) where Hennessy DP at [28] said that in terms of public safety, “the Tribunal must be satisfied that there is virtually no risk”, while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Although Ward was a case on the “fit and proper person” test, the formulation has been held to also apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23] and Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130]. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, 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 [64] – [66].

46. The principle in Ward is to the effect that the licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. Since Ward, Hennessy DP has cautioned against applying that language in a mechanistic way: see AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].

47. The underlying principles stated in s 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. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 [at 23]. In considering whether an applicant should retain a firearms licence, the question is whether there is in all the circumstances a real and appreciable risk to the public. Where there is the possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Lee v Commissioner of Police [2020] NSWCATAD 144 at [94].

48. In Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated:

In determining this issue it is my view that 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.

49. Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 at [74]. The Respondent submitted that the Applicant had provided no information about strategies to reduce the future risk. Having regard to the references and the Applicant’s evidence that his response to the incident was so uncharacteristic, as well as his obvious ongoing remorse, in the circumstances of the matter, the criticism of the lack of “strategies to reduce future risk” is unwarranted.

50. The Applicant is a 55 year old man who has never been convicted of any offence. The only blemish on his record, arises from the incident in the carpark in September 2019. Those who know him view the incident, as described to them, as being completely out of character, and there are no reports whatever of any comparable episodes in his life.

51. His hunting companions, Messrs Bedelph, McCormick, Smith and Di Tommaso attest to his strongly safety-conscious handling of firearms. In my view the evidence leads to the conclusion that there is no significant risk that the Applicant would endanger public safety if his licence were restored. There are several important factors that weigh in the Applicant's favour. Firstly, although the Applicant was charged with an offence, it did not involve a firearm. The penalty was at the very low end of the range. Secondly, the Applicant has never been charged with a firearms offence, despite holding a firearms licence for about 39 years. There was no evidence that his holding a licence has ever created any danger. Thirdly, the Applicant has never come to Police attention over the years, other than the matter that gave rise to the revocation. There was no evidence of association with criminals.

52. The Applicant still has over a year of his CRO remaining, and a licence would not be issued to a person still subject to a CRO. But when the issue is revocation rather than refusal, the Applicant’s firearms licence history is, in this matter a significant matter to take into account when exercising the Tribunal’s discretion and the Applicant’s record in that regard is unblemished.

Conclusion as to the public interest test

53. 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. I do not consider restoring the Applicant’s firearms licence would entail any realistic risk to public safety and that, consequently, it would not be contrary to the public interest for the Applicant to hold a licence, and I so find. In all the circumstances, I am reasonably satisfied, based on public interest grounds, that there is no reason for the Applicant not to continue to hold a firearms licence.

DECISION

54. The decision under review is set aside.

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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: 30 June 2021