Farrell v Commissioner of Police

[2016] NSWCATAD 96

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Farrell v Commissioner of Police [2016] NSWCATAD 96
Hearing dates:	8 February and 12 April 2016
Date of orders:	17 May 2016
Decision date:	17 May 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N S Isenberg, Senior Member
Decision:	The decision under review is affirmed.
Catchwords:	FIREARMS – revocation of licence – extension of time for late application – possession or use of a firearm - history of prior suspensions and revocations of licence - private interest, public interest test.
Legislation Cited:	Administrative Decisions Review Act 1997 Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996 Firearms Regulation 2006
Cases Cited:	Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 Kalinic v The Commissioner of Police [2006] NSWADT 227 Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 Maloney v Commissioner of Police, NSW Police unreported 22 November 2004 Ward v Commissioner of Police [2000] NSWADT 28
Category:	Principal judgment
Parties:	Dale Brendon Farrell (Applicant) Commissioner of Police (Respondent)
Representation:	Solicitors: Dale Brendon Farrell (Applicant in person) Henry Davis York (Respondent)
File Number(s):	1510642
Publication restriction:	Section 64 of the Civil and Administrative Act 2013 applies to those paragraphs of these reasons identified as [not for publication]. Those paragraphs are not to be released to either the Applicant or to the public.

Reasons for decision

Background

1. This matter involves an application to the Tribunal (the Application) to review a decision of a delegate of the Respondent (sometimes referred to as the Commissioner in these reasons) to confirm the revocation of the Applicant’s category ABC firearm licence (the Licence) after an internal review (the Decision).

The jurisdiction of the Tribunal

2. There is no dispute that pursuant to s 75 (1) (c) of the Firearms Act 1996 (the Act) the Applicant may apply to the Tribunal to review the Decision in accordance with the Administrative Decisions Review Act 1997 (the ADR Act). All references in these reasons to sections of an act are to sections of the Act unless stated to the contrary.

3. In accordance with s 63 of the ADR Act the Tribunal is empowered to decide what the correct and preferable decision is, having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law, and may exercise all of the functions conferred or imposed on the Commissioner. In determining the Application, the Tribunal may affirm, vary or set aside the Decision or refer it back to the Commissioner to be further dealt with.

Material before the Tribunal

4. The Respondent relied on:

1. a paginated and tabbed bundle of documents filed under s 58 of the ADR Act on 8 December 2015 and additional documents filed 5 January 2016 (the s 58 documents) exhibit R1;

2. two redacted COPS Events – exhibits R2 and R3;

3. an unsworn statement made by Leesa Deanne Livermore on 19 February 2016 – exhibit R4;

4. an unsworn statement made by Inspector Marco Carlon dated 8 April 2016 – exhibit R5;

5. Confidential information – exhibit CR1; and

6. written submissions filed 1 February 2016 (RS), supplementary submissions filed on the second day of the hearing and oral submissions by Mr Roberts, solicitor appearing for the Respondent.

5. The Applicant relied on the grounds in the Application and the reasons set out in his written request for an internal review by the Respondent (the Review) of the initial revocation decision. The reasons are set out at page 57 of the s 58 documents. The Applicant also relied on oral submissions he made during the hearing.

6. On the first day of the hearing the Applicant informed the Tribunal that he had sent a couple of hand written references from friends to the Tribunal. He was uncertain as to when those references had been sent, however he thought it may have been when he filed the Application. The Tribunal has no record of having received such references. The Applicant also said that he may have sent them to the Police. Mr Roberts informed the Tribunal that the Respondent has no record of having received such references. The Applicant also informed the Tribunal that he was unable to locate a copy of the references.

Consideration

Applicant’s case

7. In his request for an internal review the Applicant stated that he needed the Licence to control large and small vertebrate pests on his father’s farm. Being the manager of the farm he needed to control feral pests such as pigs, goats, rabbits and foxes. He also needed at times to humanely destroy stock such as sheep and cows that were sick or injured.

8. The grounds set out in the Application filed in October 2015 substantially repeated the grounds in the above paragraph.

9. During the course of the hearing the Applicant said that he had no other evidence for the Tribunal. In summing up his case he said that he had had some mishaps previously and repeated the grounds he relied on as set out at above.

10. The Applicant did not cross-examine the Respondent’s witnesses and accepted that all the Respondent’s evidence was true.

Chronology

11. The initial revocation decision of 14 May 2015, the subject of the Review, stated that the reasons for the decision were that the Applicant had been convicted on 18 March 2015 of the offence of sell firearm without inspecting prescribed documents-T2 and fined $300. The decision further states that the offence is prescribed by the Firearms Regulation 2006 (the Regulations) and as such, grounds exist to revoke the Licence.

12. The Review provides more detailed reasoning and affirms the revocation decision on varied grounds. The Review sets out a factual background at item B entitled Material Findings of Fact which includes:

That on 5 July 1989 at the Cowra Local Court you were convicted and fined for the offences of 'Discharge firearm on enclosed land' and 'cruelty to animals';

That your category ABC firearms licence was first issued on 3 February 2000 with the expiry of 22 February 2005;

That on 1 August 2000 your firearms licence was suspended due to a direct breach of the firearms legislation detected by police;

That on 27 June 2001 at the Warren Local Court four counts of the offence 'unauthorised use of firearm' were found proven against you with no conviction recorded under Section 10 of the Crimes Sentencing (Procedure) Act 1999;

That on 7 July 2001 the Firearms Registry saw fit to lift the suspension of your firearms licence;

That on 6 April 2011 your firearms licence was again suspended due to a direct breach of the firearms legislation detected by police;

That on 8 June 2011 at the Cowra Local Court the offence of 'allow unauthorised person possess firearm-not prohibited firearm/pistol ' was found proven against you and you entered into a bond to be of good behaviour for 12 months under Section 10 of the Crimes (Sentencing Procedure) Act 1999;

That as a result of the above offence on 7 July 2011 a decision was made to revoke your firearms licence. You appealed that revocation decision via an internal review request and on 26 September 2011 the revocation of your firearms licence was affirmed;

That on 6 August 2012 you made a fresh application for a firearms licence;

That on 10 October 2012 that licence was issued authorising you to possess and use:

●   category ABC firearms for the genuine reason of primary production and

●   category AB firearms for the genuine reason of recreational hunting/vermin control;

That on 4 March 2015 your firearms licence was suspended due to your illegal sale of a firearm;

That on 18 March 2015 at the Cowra Local Court you were convicted and fined $300.00 for the offence 'sell firearm w/o inspecting prescribed documents-ts;

That your conviction of 'sell firearm w/o inspecting prescribed documents-ts ' is a prescribed offence' and any application for a firearms licence or permit from you prior to 18 March 2025 must be refused under the mandatory provisions of the firearms legislation;

That you are 45 years of age

Respondent’s case

13. Mr Roberts said the Commissioner relied on grounds arising from four events outlined in RS. In summary, those events were:

1. on 18 March 2015 the Applicant was convicted of an offence of selling a firearm without inspecting relevant documents.

2. The Applicant knowingly made false or misleading applications for a firearms licence in each of 2005, 2010 and 2012.

3. In 2011 the Applicant contravened the Act and was charged and found guilty of an offence for not taking all reasonable precautions to ensure that a firearm in his possession did not come into the possession of a person who was not authorised to possess the firearm. The Court directed the Applicant to enter into a good behaviour bond for 12 months pursuant to s 10 (1) (b) of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act).

4. In July 2000 the Applicant was charged with four counts of committing an offence of using a prohibited firearm for a purpose other than in connection with the purpose established by him as being the genuine reason for possessing or using the firearm. On 27 June 2001 the Local Court found the Applicant guilty of offences against the section and dismissed the charges in accordance with s 10 (1) (a) of the Sentencing Act.

Legislative context

14. In the second reading speech on 25 June 1996 the Attorney General, when introducing the Firearms Bill, which subsequently became the Act, said:

The proposed Act will improve public safety by imposing strict controls on the possession and use of firearms, promoting the safe and responsible storage and use of firearms and facilitating a national approach to the control of firearms.  The objects of the bill are … 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; to provide strict requirements that must be satisfied in relation to the licensing of firearms and the acquisition and sale of firearms; to ensure that firearms are stored and conveyed in a safe and secure manner;

15. The statutory principles and objects relevant to these proceedings are in s 3 of the Act as follows:

(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) …

(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 supply of firearms,

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

(f)…

16. Division 2 of Part 2 of the Act, sections 8 to 27, contains a licensing scheme which provides, amongst other matters, for applications for firearms licences, restrictions on the issue of licences, genuine reasons for having a licence, conditions of licences and provisions for the suspension and revocation of licences and the surrender and seizure of firearms when a licence is suspended or revoked.

17. Section 24 specifically relates to the revocation of licences. Excerpts are set out below in relation to particular events.

Events relied on by the Respondent

Conviction of a firearms offence on 18 March 2015

18. The evidence at pages 27 to 30 of exhibit R5 discloses that the Applicant pleaded guilty to an offence pursuant to s 51 (1) (b) of sell firearm without inspecting prescribed documents between 28 March and 6 June 2013. On 18 March 2015 the Applicant was convicted and fined $300. Section 51 relevantly provides:

51   Restrictions on supply of firearms

(1)  A person (the supplier) must not supply, or knowingly take part in the supply of, a firearm to another person unless:

(a) the other person is authorised to possess the firearm by a licence or permit, and the other person is authorised to possess the firearm by a licence or permit, and …

(b)  the following documents have been produced to, and inspected by, the supplier:

(i)  the other person’s licence or permit, and

(ii)…

Maximum penalty: imprisonment for 5 years.

…

19. The evidence at pages 29 and 30 of exhibit R5 is that the Applicant arranged the sale of a firearm which was registered to his father who had agreed to the sale. The Applicant delivered the firearm to a person who was going to deliver it to the purchaser. Two days later the purchaser paid the Applicant for the firearm. The Applicant did not inspect all documents required by s 51. The Applicant did not dispute the accuracy of the Respondent’s evidence and conceded the conviction.

20. The Respondent submitted that the conviction has the effect that a firearms licence must not be issued to the Applicant for at least 10 years after the conviction. The relevant legislation is found in s 11 (5) and subclause 5 (1) (a) (i) of the Regulations which are as follows:

Firearms Act 1996

11   General restrictions on issue of licences

(5)  A licence must not be issued to a person who:

…

(b)  has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or

…

Firearms Regulation 2006

Part 2 Licences and permits—general provisions

5   Offences that disqualify applicants

(1) For the purposes of sections 11 (5) (b) and 29 (3) (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales:

(a)  Offences relating to firearms or weapons

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

(i)  the law of any Australian jurisdiction, or

…

21. The relevant definition of “possession of a firearm” is found in s 4 which provides

possession of a firearm includes any case in which a person knowingly:

(a) has custody of the firearm, or

(b) has the firearm in the custody of another person, or….

22. I find that the offence for which the Applicant was convicted was an offence relating to the possession of a firearm. Accordingly s 11 (5) (b) applies and the Applicant is effectively stopped from applying for a firearm licence before 18 March 2025.

23. The Respondent conceded that the revocation of the Licence is not mandatory in these circumstances, it is within the discretion of the Commissioner, and in these proceedings, the Tribunal. The Respondent also conceded that the Applicant has indicated a genuine need for a firearms licence. However, the Respondent also submitted:

51    Where circumstances that would require the Respondent to refuse to grant a licence arise in the context of a discretion to revoke a licence, the Respondent submits that discretion should only be exercised in favour of the licensee retaining the relevant licence in the most exceptional of circumstances. To this end, we note the comments of Higgins JM in Maloney v Commissioner of Police, NSW Police, who said:

Although the Commissioner has a discretion in this regard where the conviction occurred after the licence has been issued, in my opinion, it will only be in special or exceptional circumstances where the discretion is exercised in a way not to revoke the licence.

52. The Tribunal also considered whether or not the discretion to revoke a licence under section 24(2)(a) should be exercised in Kalinic v The Commissioner of Police [2006] NSWADT 227. The Tribunal, after considering the decisions of Botros34 and Maloney,35said at [23]:

In my view, this is the correct approach. It would be anomalous if a conviction, after the licence has been granted, is treated totally differently to a conviction before a licence application.

53   Further, the Tribunal has recognised previously that a decision maker should not shy away from exercising discretion adversely to an individual merely on the grounds that they may suffer hardship and/or inconvenience.

54   Relevantly, in Kalinic, the Applicant submitted that the "special circumstances" were "protecting the general fauna, the wildlife" and the Applicant's "obligation to keep feral animals down". The Tribunal rejected that that they were special circumstances.

The Respondent submits that the circumstances of the current matter are not exceptional. The Tribunal should reject any suggestion that the Applicant has special circumstances for holding a firearms licence because of his "need... to control large and small vertebrate pests on the land”' and to "human[e]ly destroy stock such as sheep and cows that are sick or injured”.

24. The Respondent also relied on s 24 (2)(a) which provides:

24 (2) A licence may be revoked:

(a)   for any reason for which the licensee would be required to be refused a licence of the same kind.

25. I observe that in Kalinic, Montgomery JM said at [24]:

This is a difficult matter in that the Local Court has treated Mr Kalinic’s convictions as on the lower end of the scale. He received a $200 fine for an offence where the potential penalty is two years in gaol and five and a half thousand dollar fine. Nevertheless, the repercussions for Mr Kalinic as they relate to his firearms licence are very severe. I am satisfied that this is what Parliament intended.

26. The Local Court treated the Applicant’s conviction as on the lower end of the scale. He was fined $300 for an offence with a potential penalty of five years’ imprisonment. However, the Applicant provided no evidence as to any special or exceptional circumstances nor any evidence as to any reason why his role in destroying feral animals or humanely destroy stock could not be carried out by some other appropriately licensed person.

27. I agree with the approach taken by Higgins JM and Montgomery JM. Having regard to the circumstances of the conviction in March 2015 and the undisputed evidence leading to that conviction I find that there are no special or exceptional circumstances persuading me that the discretion should be exercised in favour of the Applicant.

Providing false or misleading information in applications for a firearms licence

28. The s 58 documents state that the firearms licence then held by the Applicant was suspended on 1 August 2000. The documents state that this information was confirmed by the Firearms Registry integrated licensing system. The s 58 documents also state at page 24 that the firearms licence then held by the Applicant was suspended on 6 April 2011 and revoked on 7 July 2011. This evidence was not challenged by the Applicant, and I accept it.

29. At tab 6 in the s 58 documents is a copy of an application for a personal firearms licence signed by the Applicant on 25 July 2012. In the application at H (a) is the question “Have you in NSW or elsewhere been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked?

30. The question is to be answered by marking “X” in one box for each question. There are two alternative boxes for the answer, one marked YES and the other marked NO. The answer to the question has a clear “X” in the box marked NO.

31. Under item H is item I, a declaration, which appears to have been signed by the Applicant. In part the declaration states:

I understand that it is a serious offence under the Firearms Act 1996 to make a statement or provide information that I know is false or misleading & I certify that all the information contained in this application is true and correct in every detail.

32. Pages 22 and 23 contain a re-application form for a personal firearms licence apparently signed by the Applicant on 20 January 2010. At page 23 is the same question, declaration and answer as in the 2012 application.

33. At [32] the Respondent submitted:

In the 2005 Licence Application, the Applicant marked "No" in response to question H(b) which asked if the Applicant had in NSW or elsewhere, "had a firearms licence suspended, cancelled or revoked?". The Applicant's answer was false and the Applicant must have known it to be false given that the Applicant's Licence had been suspended on 1 August 2000.

34. The evidence at Tab 9 in the s 58 documents supports this submission. The evidence also includes a declaration apparently signed by the Applicant on 13 February 2005 stating “I understand that it is a serious offence under the Firearms Act 1996, to make a statement or provide information that I know is false or misleading.”

35. The Respondent submitted at [57] and [58]:

…the Applicant provided false information on his 2005 Licence Application, 2010 Licence Application and 2012 Licence Application. The false information related to whether or not the Applicant's firearms licence had previously been suspended, cancelled or revoked. The Applicant must have known that the answers he provided were false as the Applicant's Licence had been the subject of multiple suspensions and revocations.

The fact that the Applicant provided false information on three separate occasions is clear evidence of the Applicant's disregard for the strict requirements of the Act, particularly given that each licence application required the Applicant to sign a declaration that recognised that it is a serious offence under the Act to make a statement or provide information knowing it to be false or misleading.

36. The Applicant did not dispute the accuracy of any of the evidence referred to in relation to his 2005, 2010 and 2012 applications, nor did he provide any explanation. I accept the evidence.

37. The Respondent relied on s 24 (2) (b) (i) to revoke the Licence. That section relevantly states:

24   Revocation of licence

(2)  A licence may be revoked:

(a)  … or

(b)  if the licensee:

(i)  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, or

…

38. I find that the Applicant supplied information which was false or misleading in a material particular in connection with his applications for firearms licences in each of 2005, 2010 and 2012. The Applicant provided no evidence that he was not aware at the time of signing each application that his answer was incorrect and was such that it could be held to be “false and misleading”. I find that it is more likely than not that the Applicant either knew that the answer he gave on each occasion was not true or, notwithstanding the declarations he made on each occasion, he did not pay any considered attention to the answers he was giving to the questions put to him.

The Applicant was charged and found guilty on 8 June 2011 of the offence of allow unauthorised person possess firearm-not prohibited firearm/pistol

39. The evidence at pages 35 to 37 of exhibit R5 discloses that the Applicant was found guilty by the Local Court of the above offence and without proceeding to conviction the court directed him to enter into a good behaviour bond for 12 months pursuant to s 10 (1) (b) of the Sentencing Act. The Applicant accepted that bond.

40. The Respondent relied on s 24 (2) (b) (ii) in relation to this event. The section relevantly provides:

24   Revocation of licence

(2)  A licence may be revoked:

(a)…, or

(b)  if the licensee:

(i)  …, or

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

(iii) …

41. The Respondent submitted at [61] and [62]:

[61] The Respondent relies on a number of provisions of the Act and Regulations to support his decision to revoke the Licence. In particular:

(a) the Applicant was found guilty of four offences against section 7(2)(a) of the Act on 27 June 2001;

(b) the Applicant was found guilty of an offence under section 39(1)(c) of the Act on 8 June 2011; and

(c) the Applicant was found guilty and convicted of an offence under section 51 (1)(b) of the Act on 18 March 2015.

[62] Further, the Respondent submits that the Applicant has, as a result of providing information that he knows is false or misleading in a material particular in his 2005 Licence Application, 2010 Licence Application and 2012 Licence Application, contravened section 70 of the Act.

42. In respect of the submission in [61(a)] I observe that annexure 2 of the s 58 documents, contains a document entitled Criminal History in respect of the Applicant and records, in respect of the Applicant, four counts of “unauthorised use of firearm” s 7 (2) (A) (sic) Firearms Act 1996 and “Dismissed s10”. The Applicant conceded the accuracy of the Respondent’s evidence and I accept that evidence.

43. Relevantly s 7 (2) (a) states:

7   Offence of unauthorised possession or use of pistols or prohibited firearms

(1)  A person must not possess or use a pistol or prohibited firearm unless the person is authorised to do so by a licence or permit.

Maximum penalty: imprisonment for 14 years.

(2)  Without limiting the operation of subsection (1), a person who is the holder of a licence is guilty of an offence under this section if the person:

(a)  uses a pistol or prohibited 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 pistol or prohibited firearm, or

(b)…

44. I find that s 24 (2) (b) (ii) applies in respect of these four breaches of the Act.

45. In respect of the submission in [61(b)] that the Applicant was found guilty of an offence under s 39 (1) (c) I note that that section provides:

Part 4 Safe keeping of firearms

39   General requirement

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

(a)  its safe keeping, and

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

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

46. I dealt with that issue at [42] to [44] above.

47. In respect of the submission in [61(c)] that the Applicant was found guilty and convicted of an offence under s 51 (1) (b) in March 2015, I note that I dealt with that issue at [18] above.

Public interest versus private interest

48. The Respondent relied on s 24 (2) (d) and clause 19. They are:

Section 24

(2)  A licence may be revoked:

(a)…

(b)…

(c)…or

(d)  for any other reason prescribed by the regulations

Clause 19

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.

49. I accept that a discretion exists in relation to a revocation decision by the Commissioner on public interest grounds.

50. The only substantive ground the Applicant provided to the Tribunal in support of the application to review the Decision was that, as manager of his father’s farm, the Applicant needed the Licence in order to control feral pests and humanely destroy stock that were sick or injured.

51. I accept that the grounds submitted by the Applicant may well constitute genuine reasons for obtaining a personal firearms licence. However, the Applicant provided no evidence in support of his Application. No information was provided to the Tribunal as to why it was necessary for the Applicant to personally control feral pests or humanely destroy stock on the farm rather than those functions being exercised by some other person with an appropriate firearms licence.

52. The statutory principles and objects of the Act and the importance of the legislation in improving public safety by imposing strict controls on the possession, use and storage of firearms as well as licensing requirements are at [14] and [15] above.

53. The Respondent referred at [71] to [80] to the importance of the public interest in complying with the requirements of the Act. The Respondent relied on several decisions of the former Administrative Decisions Tribunal (ADT) and a decision of the High Court in support of his submission. This was not disputed by the Applicant.

54. I observe that a discussion of relevant case law with respect to public interest was set out by the ADT in Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 including the following:

69 The Applicant's individual interest in retaining his licence must be subordinate to the public interest in ensuring public safety. This position is supported by the decision of Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 where it was stated at 681:

"The purpose of the reference to 'public interest’ is to ensure that private interests are not only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation."

70 In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25], the Appeal Panel said that the ‘public interest’ “is an inherently broad concept giving [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual”.

71 There is discretion with respect to whether to revoke the licence in this case. The Tribunal has previously found that any discretion must be exercised to promote the objects of the firearm legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and the discretion is to be exercised in clear preference to the public interest than an individual's private interests. That view has been followed in numerous decisions….

55. Section 3 provides that the first of the underlying principles of the Act is that firearm possession “is conditional on the overriding need to ensure public safety”.

56. In the often quoted decision of Ward -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, DP Hennessy said at [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.

57. There is no dispute that the firearms licence issued to the Applicant on 22 March 2010 was revoked on 27 July 2011. The revocation decision was the subject of an internal review by the Commissioner which affirmed the decision. In his application for an internal review five years ago the Applicant’s grounds were “to control large and small vertebrate pest animals and kangaroos under contract. I need my firearms licence to allow me to do this.” Those grounds are substantially identical to the Applicant’s grounds in these proceedings.

58. The evidence is that in 2012 the Applicant again applied for a firearms licence and was granted the Licence. Notwithstanding the several occasions on which the Applicant’s firearms licence has been suspended or revoked and the occasions on which courts have found that alleged offences by the Applicant against provisions of the firearms legislation have been proven, the Applicant has continued, whether deliberately or negligently, to disregard his statutory obligations which were legislated to ensure public safety.

59. Even if the Tribunal saw fit to reverse the Commissioner’s decision to revoke the Licence, it would expire in November 2017. The mandatory provisions would then apply and no further firearms licence could be issued to the Applicant before 2025. In these circumstances, it does not seem reasonable to me that the Applicant’s personal interest in retaining the Licence should override the public interest in ensuring public safety.

60. I have had regard to the material before me, the findings I made above, and the importance to the public that holders of firearm licences comply with their statutory obligations.

61. Section 3 of the Act provides that an underlying principle of the Act is to confirm that firearm possession and use is a privilege which is conditional on the overriding need to ensure public safety. The Act imposes strict controls on the safe and responsible possession, use and storage of firearms. The Applicant’s long and repeated history of failing to comply with his statutory obligations does not enable me to be satisfied that there is virtually no risk to the public should he retain his Licence.

Confidential information and submissions

62. [not for publication]

63. [not for publication]

64. [not for publication]

65. [not for publication]

66. [not for publication]

67. [not for publication]

Decision

68. The correct and preferable decision of the Tribunal is to affirm the decision under review.

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: 17 May 2016