FMW v Commissioner of Police, NSW Police Force

[2022] NSWCATAD 359

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FMW v Commissioner of Police, NSW Police Force [2022] NSWCATAD 359

Hearing dates:

24 August 2022

Date of orders:

10 November 2022

Decision date:

10 November 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member

Decision:

1.   The decision to revoke the applicant’s Minor’s Firearm Training Permit Firearms Licence is set aside.

2.   The Commissioner of Police is to issue to the applicant a Minor’s Firearm Training Permit Firearms Licence forthwith.

Catchwords:

ADMINISTRATIVE LAW - Firearms –– objects of legislation – public interest – public safety

Legislation Cited:

Administrative Decisions Review Act 1997

Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Firearms Act 1996
Firearms Regulation 2017

Firearms Act

Firearms Act 1996

Firearms Regulation 2017

Cases Cited:

Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234

Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409

Livadaru v Commissioner of Police [2008] NSWADT 160

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

Texts Cited:

None cited

Category:

Principal judgment

Parties:

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

Representation:

Solicitors:
Mainstone Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/00127334

Publication restriction:

Pursuant to s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013, the publication of the name of the applicant is prohibited.

REASONS FOR DECISION

1. This is an application concerning the Commissioner of Police’s decision to revoke the applicant’s Minor’s Firearms Training Permit on 19 January 2022 and the decision on Internal Review on 18 February 2022 to affirm that decision.

Introduction

2. The applicant in these proceedings is FMW, who at the time of the hearing was 17 years of age. The respondent is the Commissioner of Police NSW Police Force (the “Commissioner”). The Commissioner’s delegate formed the view that it was not in the public interest for FMW to continue to hold a Minor’s Training Firearms Permit (the “Permit”). The Commissioner decided that it was not in the public interest for the applicant to hold a Permit and revoked the Permit. That decision was based on events involving the applicant where he was found in possession of a prohibited substance on 17 January 2022.

Background

3. On 26 May 2018, the applicant was issued the Permit. The Permit was due to expire on 4 May 2023. This was the first time that the applicant had applied for and been issued with a permit.

4. The incident on 17 January 2022 occurred at about 11.30pm. The applicant was detected in the Shoalhaven area when was stopped police. The applicant was stopped because he was said to fit the description of a person stealing in the area. The COPS report records the applicant appeared “nervous and fidgeting with his bag” The police asked the applicant to identify himself, which he did. He admitted that he had a bag of what he believed to be cocaine on him. He said that he had consumed some of the drug. The applicant told police he was minding the drugs for a friend.

5. The Commissioner contends that the applicant told police he was 18 years of age, when at the time of him being detected he was only 16. I reject this contention. Having watched the body worn video (BWV) it is clear that the applicant did not say this to police. The version relied upon by the Commissioner is derived from the COPS report, which is incorrect. Some criticism was also raised about whether he was honest with the police concerning his usual place of residence. I am satisfied having watched the BWV that the applicant was mostly honest with the police. He gave them a version of where he lived by stating he was from a region in NSW, which was correct.

6. The police did not become aware of the applicants age until the search located his driver’s licence.

7. The main reason the Commissioner submits the decision under review should be affirmed is because the applicant was in possession of a prohibited substance and that his conduct during his detention would lead the Tribunal to determine that it is against the public interest for him to hold the Permit. I disagree. My reasons follow.

Jurisdiction

8. The Notice of Revocation was issued under the provisions of the Firearms Act 1996 - s 24. Relevantly, s 24 provides:

24 Revocation of licence (cf APMC 6, 1989 Act s 36, 1990 Reg cl 27)

(1) A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order.

(1A) The Commissioner must revoke a licence that is held for the purpose of employment as an armed security guard (within the meaning of the Security Industry Act 1997) if—

(a) the licensee has failed to undertake any firearm safety training required under this Act or the regulations, or

(b) in the case of a licensee who holds a class 1F licence or a visitor permit authorising the licensee to carry out security activities of a kind authorised by a 1F licence under the Security Industry Act 1997—the 1F licence or visitor permit is revoked under that Act or the licensee contravenes any condition of the firearms licence under this Act.

(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, 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

(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) contravenes any condition of the licence, or

(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

(c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or

(d) for any other reason prescribed by the regulations..

….

9. Clause 20 of the Firearms Regulation 2017 provides:

20 Revocation of licence—licence not in the public interest

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.

10. Section 75 of the Firearms Act provides that a person aggrieved by any of the seven listed actions of the Commissioner can apply to the Tribunal for administrative review of that decision. The third matter listed at s 75 concerns the revocation of a licence. Relevantly the section provides:

Part 8 Applications to Civil and Administrative Tribunal

75 Administrative reviews by Civil and Administrative Tribunal of certain decisions

(1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions—

(a) the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person,

(b) a condition imposed by the Commissioner on a licence or permit issued to the person,

(c) the revocation of a licence or permit issued to the person (other than a revocation on the basis that the holder of the licence or permit is subject to a firearms prohibition order or an apprehended violence order),

(d)..

(e)…

(f)…

(g)…

(Emphasis added)

11. The Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides:

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

12. The Tribunal has jurisdiction under the Firearms Act as noted at [8] above.

13. An application under s 75 of the Firearms Act is an administrative review. The Tribunal’s function on review under section 63 of the ADR Act 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 in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

Administrative Review by the Tribunal

14. FMW filed his application for Administrative review on 22 April 2022. The Internal Review was made on 4 April 2022. The application was filed within the period provided to lodge an administrative review application with the Tribunal.

Issues for determination?

15. The issues are as set out by the Commissioners delegate:

• Is it in the public interest for the applicant to hold a licence?

16. This issue will be determined on the basis of factual findings in this review arising from a consideration of the evidence and law.

Applicant’s evidence

17. Exhibit ‘A-1’. Application filed 22 April 2022.

18. Exhibit ‘A-2’. Statement of applicant dated 28 May 2022.

19. Exhibit ‘A-3’. Statement of applicant’s father dated 28 May 2022.

20. Exhibit ‘A-3’. Statement of applicant’s mother dated 28 May 2022

21. Exhibit ‘A-2’: Undated Statement of Biosecurity Officer.

Respondent’s evidence

22. Exhibit ‘R-1’ Documents filed under s 58 ADR Act.

23. Both parties were legally represented. They provided written submissions and made oral submissions at hearing. The applicant was subject to cross-examination at hearing.

FMW’s oral evidence

24. FMW adopted his statement. He said he was honest with the police when he was detected with the prohibited drugs, apart form initially denying the drugs were his and deeply regrets his actions. He said this was his first time experimenting with drugs and will be his last. He went through a frightening experience when his parents took him to the police station for further processing after he was detected.

25. FMW was very upset his Permit was revoked and sees the errors of his way. FMW accepts that through his stupidity he has prejudiced his ability to use a firearm which has particularly impacted the work he does with his father in controlling feral dogs. He was also aware of why his Permit was revoked and why the community might expect that result.

26. I accept FMW as a reliable and honest witness. He was truthful and showed remorse for his offending.

27. Despite cross-examination, I do not find that it revealed any adverse matter which goes against FMW’s character or his reliability as a witness.

28. I find that FMW made a mistake in deciding to indulge and possess a prohibited substance. He was honest with the police, albeit extremely nervous, and at first denying the drugs were his. I accept in this regard he did not tell the police the truth. This is explained by his immaturity, and also being nervous when stopped by the Police. I have also considered that police interviewed a minor not in the presence of an adult. Limited weight must therefore be given to his exchange with police at the time. In making a poor choice on the evening in question, FMW has experienced a detrimental impact on his life and his privilege to hold a Permit was revoked. I am satisfied having accepted his evidence that he will not likely offend again.

Evidence of FMW’s parents and the biosecurity officer

29. The applicant’s parents attest to the behaviour of their son in January 2022 as being out of character. They explain the importance of FMW being able to use a firearm to assist with control of feral dogs. They said that the officers processing FMW at the police station were satisfied he was upfront and honest and decided to caution him. I them both as reliable witnesses.

30. The biosecurity officer attests to FMW’s requiring the use of firearms to assist with control of feral dogs. I accept him as a reliable witness.

The Commissioners evidence

31. I have considered the s 58 bundle. I have noted some inconsistencies in the COPS report with the BWV above.

Applicant’s submissions

32. The applicant contends he has a clear understanding about what he can do with the Permit. He said when his father is away he cannot use the firearm. He is clearly aware of only being able to use a firearm under supervision.

33. The applicant admitted when asked by police if he had identification he said “no”. He explained this because he was panicking and did not know what to think. He admitted that he had cocaine and that he used it.

34. There is no evidence that he told the police he was 18. Police made an assumption he was 18 years of age. I accept this to be the case after watching the BWV. I give no weight to the refence in the COPS report that he did so. The evidence of him being under 18 only become apparent when his friend says this. This is consistent with the police officer saying it was their mistake.

35. When examining ‘risk’, given the limited purpose of using the firearm under supervision there is virtually no risk to the general public. The decision under review should be set aside. FMW should be granted a Permit.

Commissioner’s Submissions

36. The Commissioner relies on written submissions and made oral submissions at the conclusion of the hearing. The Commissioner submitted that there were a number of matters which weighed against FMW having access to firearms. The information in the COPS report raises significant concerns about the risks posed by the applicant’s lifestyle choices and drug use, combined with his age, would have the cumulative effect of supporting the decision that the applicant is not a fit and proper person to hold the Permit.

37. The Commissioner further submitted that when police asked for the applicant’s identification and whether he had drugs, he was not honest and this goes towards character. The objects and principles of the Act are that a person must act responsibly. The Commissioner contends that the Tribunal would be concerned with the applicant holding a minors permit in the circumstances.

38. The Commissioner in written submissions relied on the often cited cases of Commissioner of Police v Toleafoa [1999] NSWADTAP 9, Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657, Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16 and Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28. In Ward v Commissioner of Police, NSW Police Service Deputy President Hennessy referred to the public interest at [27]-[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. ….

My consideration

39. The decision under review is based upon the Commissioner’s contention that FMW having access to firearms would be contrary to the public interest and that FMW is not a fit and proper person.

40. In respect of the public interest, I note that such matters include public protection, public safety and public confidence in the administration of a licensing system. The Firearms Act identifies a purpose to deal with public safety at s-3 (1) (a) of the Act.

Section 3 of the Firearms Act 1996 provides:

3 Principles and objects of Act

(1) The underlying principles of this Act are:

(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b) to improve public safety:

(i) by imposing strict controls on the possession and use of firearms, and

(ii) by promoting the safe and responsible storage and use of firearms…

41. The Appeal Panel case of Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 (Lee), concerning giving proper consideration of all relevant matters when determining matters as to the public interest. At [24] - [25] of Lee the Appeal Panel observed:

24. The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the “overriding need to ensure public safety”: Firearms Act s 3(1)(a). Public safety is improved by “imposing strict controls on the possession and use of firearms” and by “promoting the safe and responsible storage and use of firearms”: Firearms Act s 3(1)(b). The objects of the Act include “to establish an integrated licensing and registration scheme for all firearms;” “to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;” and “to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms”: Firearms Act, s 3(2)(b), (c) and (d).

25. In that statutory context it is uncontentious that a relevant consideration is the applicant’s previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant. The Tribunal was reviewing seven separate decisions. It was right to observe that Hijazi does not suggest that contraventions should be treated as having equal weight in respect of all licences. But in Hijazi, the Appeal Panel went on to hold that it was erroneous to quarantine contraventions that relate to one type of licence when considering whether another type of licence should be revoked. Another way of expressing that principle is that it is erroneous to treat contraventions relating to another type of licence or permit as irrelevant considerations.

42. When reviewing these decisions the Tribunal has determined that these principles and objects provide clear guidance as to how the provisions under the Act are to be administered - see Livadaru v Commissioner of Police [2008] NSWADT 160 where Deputy President Hennessy referred to the public interest at [54]:

In considering the public interest, regard must be had to the underlying principle of the Act. ….

43. The Appeal Panel of the ADT in the case of Constantin v Commissioner of Police NSW Police Force discussed how the Tribunal should approach matters of public interest in licensing regime reviews.

44. As noted in Commissioner of Police v Toleafoa [at 33] the 'public interest' is:

. . .

33. The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system. In this case the public interest case was a very strong one. The public would, we believe, be quite concerned that a man with a serious history of violence, including violence using weapons, for which he served several years' imprisonment might now be entrusted with a pistol.

45. The applicant made a significant mistake on the evening on 17 January 2022. That mistake led to his Permit being revoked. However, I accept his explanation for his offending. I accept that he is unlikely to use drugs again.

46. I reject the Commissioners submission that the applicant’s use of drugs and his response to the police when he was detected demonstrates that he is not a fit and proper person to hold a Permit.

47. I accept that at the time he was detected by police he was nervous and failed to correctly state that he had identification on him when asked and that the drugs were his and he had used them. His nervous demeanour was clearly depicted on the BWV.

48. I accept that FMW has good insight into the limitations he has being issued a Permit. He can only use a firearm under supervision.

49. I find FMW is not a dishonest person. He made a serious mistake in deciding to possess and use cocaine on the 17 January 2022. Thereafter, he was predominately honest with police. He is a fit and proper person to hold a firearm permit. He poses virtually no risk to the public.

Order

50. The decision to revoke the applicant’s Minor’s Firearm Training Permit Firearms Licence is set aside.

51. The Commissioner of Police is to issue to the applicant a Minor’s Firearm Training Permit Firearms Licence forthwith.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

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: 10 November 2022