Hamid v Commissioner of Police, New South Wales Police Force

[2018] NSWCATAD 43

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43

Hearing dates:

2 February 2018

Date of orders:

16 February 2018

Decision date:

16 February 2018

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Emeritus Prof G D Walker, Senior Member

Decision:

1. Decision under review affirmed.

2. Pursuant to ss 64(1)(c) and (d) of the CAT Act, the transcript and recording of the confidential hearing, confidential exhibits CR 5 and CR 6, and the contents of all paragraphs in these reasons marked “[Not for publication]” are not to be published or released to the applicant.

Catchwords:

FIREARMS -firearms prohibition order – whether person “not fit, in the public interest” – possession of firearm – associations with persons having criminal records – whether power to revoke order.

  WORDS AND PHRASES – “fit, in the public interest”.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Review Act 2013 (NSW)
Firearms Act 1996 (NSW)
Firearms and Criminal Groups Legislation Amendment Act 2013 (NSW)
Interpretation Act 1987 (NSW)
Marriage Act 1961 (Cth).

Cases Cited:

Barrow v Commissioner of Police, New South Wales Police Service (CoP), 6 September 2004, unreported;
Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657;
Commissioner of Police, New South Wales Police Service vToleafoa [1999] NSWADTAP 9;
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16;
Director of Public Prosecutions v Smith [1991] 1 VR 63;
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60;
Hillingdon London Borough Council v Commissioner of Racial Equality [1982] AC 779;
McDonald v Director-General, Social Security [1984] FCA 57, (1984) 1 FCR 354;
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10;
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66, (1992) 110 ALR 449;
O’Sullivan v Farrer (1989) 168 CLR 210;
Tolley v Commissioner of Police, New South Wales Police Service [2006] NSWADT 149.

Texts Cited:

DC Pearce, RS Geddes, Statutory Interpretation in Australia,(8th edn. 2014, Lexis Nexis Butterworths);
Craies on Legislation (11th edn. 2017, Thomson Reuters).

Category:

Principal judgment

Parties:

Amany Hamid (Applicant)
Commissioner of Police, New South Wales Police Force (respondent)

Representation:

Counsel:Mr H El-Hage (Respondent)

 

Applicant (self-represented)

    Solicitors:
Crown Solicitor’s Office (Respondent)

File Number(s):

201700252296

Publication restriction:

Pursuant to ss 64(1)(c) and (d) of the CAT Act, the transcript and recording of the confidential hearing, confidential exhibits CR 5 and CR 6, and the contents of all paragraphs in these reasons marked “[Not for publication]” are not to be published or released to the applicant.

reasons for decision

1. The applicant Ms Amany Hamid on 17 August 2017 applied to this tribunal for review of a decision dated 5 July 2017 by a delegate of the respondent Commissioner affirming the imposition of a firearms prohibition order (FPO) on the applicant pursuant to s 73 of the Firearms Act1996 (NSW) on 18 May 2017.

2. The applicant has no criminal convictions and has never been charged with any offence. She has never held a firearms or shooter’s licence and is quite definite that she has no intention of ever applying for one and has no interest in firearms.

3. She was previously married to Ahmed Alameddine in accordance with Islamic law, but the marriage was never solemnized or recorded under the Marriage Act1961 (Cth). There is one child of the marriage, a 5 year-old girl, who resides with the applicant. The applicant describes the marriage as having been “toxic” and it involved a number of disputes leading to the issuance of apprehended violence orders (AVOs) against Alameddine for the protection of the applicant, her daughter, brother and mother. Those incidents also led to criminal charges for stalking, intimidation and assault against him. In one instance it was alleged that he threatened to bury the applicant, shoot her brother and burn their cars. Alameddine is very well known to police and he is deemed to be a prescribed person for the purposes of the Firearms Act (s 44A) and is prohibited from possessing or using firearms.

4. The applicant has been in a de facto relationship with Esam Elkodat (also known as Sam Husseini) for over two years and describes the relationship as deep, trusting and harmonious. Her de facto, who for convenience will be referred to in these reasons as Esam, is also well known to police and is the subject of a firearms prohibition order.

5. On 15 December 2016, police attended her home in relation to her de facto partner. They conducted a search of the premises and on 18 May 2017 again attended her residence and served her with the firearms prohibition order in issue.

Applicable legislation

6. The Commissioner’s power to make FPOs derives from s 73 of the Firearms Act:

73   Firearms prohibition orders

(1)  The Commissioner may make a firearms prohibition order against a person if, in the opinion of the Commissioner, the person is not fit, in the public interest, to have possession of a firearm.

(2)  A firearms prohibition order takes effect when a police officer serves a copy of the order personally on the person against whom it is made.

(3)  The Commissioner may revoke a firearms prohibition order at any time for any or no stated reason.

7. The power to make an order necessarily implies a power to amend or repeal any such order: Interpretation Act1987 (NSW), s 43(2) (see below).

8. The effects of FPOs are set out in s 74:

74   Effect of firearms prohibition order

(1) Prohibition on persons acquiring, possessing or using firearms, firearm parts or ammunition A person who is subject to a firearms prohibition order must not acquire, possess or use a firearm.

Maximum penalty: imprisonment for 14 years if the firearm is a pistol or prohibited firearm, or imprisonment for 5 years in any other case.

Note.

Reference to a pistol includes a prohibited pistol.

(2)  A person who is subject to a firearms prohibition order must not acquire or possess a firearm part.

Maximum penalty: imprisonment for 14 years if the firearm part relates solely to any kind of pistol or prohibited firearm, or imprisonment for 5 years in any other case.

(3)  A person who is subject to a firearms prohibition order must not acquire or possess ammunition for any firearm.

Maximum penalty: imprisonment for 5 years.

(4) Prohibition on supplying firearms etc to persons subject to orders A person must not supply or give possession of a firearm or firearm part to another person knowing that the other person is subject to a firearms prohibition order.

Maximum penalty: imprisonment for 14 years if the firearm is a pistol or prohibited firearm or if the firearm part relates solely to any kind of pistol or prohibited firearm, or imprisonment for 5 years in any other case.

(5)  A person must not supply or give possession of ammunition for any firearm to another person knowing that the other person is subject to a firearms prohibition order.

Maximum penalty: imprisonment for 5 years.

(6) Prohibition on persons residing at premises where there are firearms etc A person who is subject to a firearms prohibition order is guilty of an offence if a firearm, firearm part or ammunition for any firearm is kept or found on premises at which the person is residing.

Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.

(7)  It is a defence to a prosecution for an offence under subsection (6) if the defendant proves that the defendant:

(a)  did not know, and could not reasonably be expected to have known, that the firearm, firearm part or ammunition was on the premises, or

(b)  took reasonable steps to prevent the firearm, firearm part or ammunition from being on the premises.

(8) Prohibition on persons attending certain premises A person who is subject to a firearms prohibition order must not without reasonable excuse attend:

(a)  the premises specified in a firearms dealer’s licence, or

(b)  a shooting range, or

(c)  the premises of a firearms club, or

(d)  any other premises of a kind prescribed by the regulations.

Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.

(9)  Membership of a firearms club is not a reasonable excuse for the purposes of subsection (8).

(10) Exemptions

The Commissioner may by order exempt a person, either unconditionally or subject to conditions, from a specified provision of this section.

(11) Proof of possession of firearm parts and ammunition

For the purposes of any proceedings for an offence under this section, a reference in section 4A to a firearm is taken to include a reference to a firearm part or ammunition.

9. In conjunction with the Firearms and Criminal Groups Legislation Amendment Act 2013 (NSW), a new s 74A was inserted into the Firearms Act that had the effect of conferring on the police additional powers in relation to FPOs, powers that may be exercised without a warrant:

74A   Powers of police to search for firearms in possession of person subject to firearms prohibition order

(1)  The powers of a police officer under this section may be exercised as reasonably required for the purposes of determining whether a person who is subject to a firearms prohibition order has committed an offence under section 74 (1), (2) or (3).

(2)  A police officer may:

(a)  detain a person who is subject to a firearms prohibition order, or

(b)  enter any premises occupied by or under the control or management of such a person, or

(c)  stop and detain any vehicle, vessel or aircraft occupied by or under the control or management of such a person,

and conduct a search of the person, or of the premises, vehicle, vessel or aircraft, for any firearms, firearm parts or ammunition.

(3)  In this section, premises includes any place, whether built on or not.

10. The issue in this case is thus whether the tribunal is of the opinion that the applicant “is not fit, in the public interest, to be permitted to have possession of a firearm”.

Applicant’s evidence

11. At the hearing, the applicant appeared in person, but at some earlier stages of the proceedings she was legally represented. On 8 November 2017, her then lawyers filed an affidavit sworn by her (exhibit A1), which she reaffirmed in her oral evidence at the hearing. In it she stated inter alia that she was born at Bankstown in 1987 and completed her secondary schooling at Bossley Park High School in 2004. She studied travel and tourism at Bankstown TAFE for a year and had also received training in makeup and beauty skills. In 2011 she worked at Baycorp as a debt collector for approximately three months, leaving when she became pregnant in 2011.

12. She is one of four children and states that she was very close to her family until she was served with the FPO. They are very concerned about it and do not understand what is happening. All her family members have been present at some point during FPO searches. None of them has a criminal history or has been subject to an FPO and the family has never had any problems with the police in the past.

13. She herself has no criminal history and has never applied for a firearms licence, nor has she ever been involved in any way in a firearms-related offence. She married Ahmed Alameddine under Islamic law in 2011, the relationship ending in April 2015. The relationship was so “toxic” that she had to take out AVOs against him, and even after the divorce she had to obtain an ADVO against him. He has been in jail twice since the divorce and is currently incarcerated. Her life has been more peaceful since he has been imprisoned again. She no longer has any contact with him, although he calls once or twice a week to speak to their daughter, but that is always arranged through his sister or mother.

14. Her relationship with Esam began in November 2015. There have never been any problems between them and the relationship is completely different from that with her former husband. Esam is very good with his daughter and has a better relationship with her than her ex-husband ever had.

15. The property at [address], Georges Hall, is owned by her mother. There are three residences on the property. Esam has never lived at that address, nor has he ever spent the night there. In the s 58 documents [exhibit R1] it is stated that Esam “has been sleeping over approximately 3 nights per week at [Georges Hall]”, but she believes that to be a misunderstanding, as he had never stayed the night at that address.

16. When police entered her home on 25 November 2016, they asked her if Esam was at home. She replied in words to the effect that “He doesn’t live here, he is at his parents’ house at [Greenacre]”. The second time the Georges Hall property was raided, the police asked her where he was. She replied in words to the effect of “I’m pretty sure he left for work an hour ago” She did not mean that Esam had left from her house, only that he had left for work an hour previously.

17. Having an FPO against her had ruined her life. She estimates that since August 2017, she has been pulled over by police once a week. Every time the officers had told her it was because of the FPO. On the last two occasions, her daughter was in the car. Most recently, on Sunday 5 November 2017, she was pulled over and her car was searched. Her daughter was in the car. It was raining, and they had to stand on the side of the road in the rain. The police officers told her they were searching her car because of the FPO. On 6 October 2017 she was pulled over by police and her car was searched. They told her they were going to get a female officer to come to the location to search her, but that did not happen.

18. Her mother had made her leave the Georges Hall house after she was served with the FPO and the property was searched. She had said it gave her anxiety and depression. The raid in May 2017 caused her to have a mental breakdown in front of police and she was charged with assaulting an officer in the execution of duty and being armed with intent to commit an indictable offence. In relation to the charge of being armed, the object her mother was holding was a broken vase. She did not threaten police. That occurrence would not have happened but for the FPO.

19. The applicant is worried about renting a home in the future and is concerned that she could be evicted by a landlord once they had seen police raid her home. There is no limit on how often her house could be raided. She is very worried for her daughter. The last time she was raided it was in the very early hours of the morning, which is highly disruptive for her daughter and anyone else she is living with.

20. She is currently seeking employment but is concerned that she would not be able to pass a check for working with children because of the FPO. She knows she would not be able to obtain a security licence with an FPO on her record. Everyone in her family is aware of the FPO. She has had friends and family not wanting to associate with her because everywhere she goes their lives could be interrupted by a police search. It is embarrassing.

21. She had known Esam since before November 2015 because his children used to play with her daughter at the house of Latifah, a mutual friend with whose husband Ahmad Ahmad Esam was acquainted. Her relationship with Esam had been made known to family and friends in December 2015 and the relationship was good, unlike that with her ex-husband Ahmed Alameddine. She has stayed with Esam on occasion at Greenacre in his parents’ house, where he has been living since some time last year. She had spent the night at his house some 6 months after the relationship had been made known, in mid-2016. At that time he had been living alone at Mortlake, and his children came over to be with him at weekends. The applicant had not taken her daughter to his place initially because she had been unsure about how the relationship would develop.

22. She speaks to her daughter’s father (Ahmed Alameddine) several times a week. He is currently in jail on charges including assault occasioning actual bodily harm in relation to his wife. His children are aged 10, 8 and 7, but her daughter does not play with them because his wife does not approve.

23. She is currently unemployed, but Esam helps her financially when he can. In 2016 and 2017 he was working at a car yard known as the Sydney Car Garage. He is not currently working. Esam and her ex-husband know each other and their friends but are not in contact with each other as they have no reason to be.

24. On 6 December 2017, when the matter was last listed before the tribunal, she had telephoned the registry 5 minutes before the 10:00 am start and said she was stuck before Anzac Bridge with a flat tyre. Mobile telephone records showed, however, that at that time she was in the Homebush Bay area. She admitted that she had lied to the tribunal about her location, but that it was true that she had a flat tyre. But she had lied because she was embarrassed about being unable to raise the funds to have her legal advisers in attendance and felt unable to represent herself before the tribunal because she could not understand the proceedings.

25. Det.S/Const Phillis’s evidence (see below) that she had only been stopped by police twice since the FPO had been served was not correct. She had been stopped twice on 5 November 2017, once in Marion Street, Condell Park, and once shortly afterwards in a street running at right angles with Marion Street, in which a 7/11 was located. Det. Phillis had said the police had no record of either stop, but had conceded that he was not there at the time. Police doubts about her veracity were understandable in the circumstances, but she vividly remembered shielding her daughter’s head from the rain with her hand while the car was searched.

26. Whenever practicable, she would change cars from time to time, because her own car was known to police through the FPO and was subject to being stopped and searched as a result. She was sometimes able to borrow a car from Esam’s work, however. In late August 2017 she had sold an Audi she had purchased in mid-2015 because, as a result of the FPO, it was known to police, and in any event she could no longer afford the payments.

Respondent’s evidence

27. The respondent called Senior Constable David Theodore, who is attached to the Middle Eastern Organized Crime Squad (MEOCS) of the State Crime Command. He adopted his statement dated 28 November 2017 (exhibit R2), in which he stated inter alia that he had reviewed event E 62770445 on the police computerized database (known as COPS) dated 25 November 2016, containing information about an FPO search that he and other officers had conducted at the Georges Hall house. The applicant was present at the search.

28. The witness recalled a short conversation between Ms Hamid and himself regarding her de facto relationship with Esam, in words to the following effect:

“I said: Is Esam Elkodat here?

She said: He left for work an hour ago.

I said: Are you currently in a relationship with Esam Elkodat?

She said: He has been sleeping over approximately 3 nights a week at [address] Georges Hall”.

29. In cross-examination the witness said that he had arrived at the applicant’s residence on 25 November 2016 at about 7:00 a.m. The applicant put it to him that it was dark at the time the police arrived and that she was disoriented as a result, such that she did not express herself clearly. The witness said he did not recall whether it was dark on that occasion, but said the record was correct and he had written it as a police report several hours later. He had created the event report.

30. The respondent also called Detective Senior Constable Daniel Phillis, who is also attached to the Middle Eastern Organized Crime Squad. The deponent affirmed his affidavit dated 27 November 2017 (exhibit R3), which set out inter alia the applicant’s COPS database record of traffic stops, together with a traffic infringement notice in June 2017 for disobeying a “no stopping” sign.

29. The witness deposed that he had not located any record on COPS, or any other police database, containing information relating to an alleged stop of the applicant’s vehicle on 5 November 2017, as referred to in her affidavit dated 8 November 2017, par 41. He stated that if a vehicle stop and subsequent search of that vehicle or of Ms Hamid, or both, had occurred on that date, a COPS event would have been created detailing the reasons for the stop and search.

30. When the applicant put it to him that her car had been stopped by police and searched in Marion Street, and the adjacent street, on 5 November, he replied that it was always standard procedure to record an event. But as he had not been there at the time, he could not personally say what had actually happened.

31. The respondent also relied on the s 58 documents (exhibit R1) and on a statement of Cassandra Nelson dated 1 February 2018 (exhibit R4), which contained the applicant’s mobile telephone records. There was also confidential evidence and confidential submissions that were heard in closed session, pursuant to orders made under ss 49 and 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act).

32. [Not for publication]

33. [Not for publication]

34. [Not for publication]

35. [Not for publication]

36. [Not for publication].

37. [Not for publication]

38. [Not for publication]

39. [Not for publication]

Applicant’s submissions

42. The applicant’s former legal representatives had filed written submissions on 13 November 2017. Although Ms Hamid did not expressly rely on them, I think they should be taken into account as part of her submissions. They note the observation in the statement of reasons following the internal review that it is well known that criminal networks frequently use persons with no criminal record (“cleanskins”) in the commission of their criminal activities, but the fact that the applicant is in a de facto relationship with a person with a significant criminal history does not give reason for her to be in possession of firearms. At no point over the course of any searches conducted under the FPO has she been found in possession of a firearm.

43. It was pointed out that in the New South Wales Ombudsman Review of Police Use of the Firearms Prohibition Order Search Powers (August 2016), it was found that of over 2500 separate searches conducted under the powers in s 74A, police found firearms, ammunition or firearm part in 2 percent of searches. That suggested the power was being used more as a roving search power used randomly on FPO subjects, rather than “as is reasonably required”. Given those statistics, the applicant had grounds to be concerned that she would be subject to unnecessary searches, which might continue indefinitely due to the inability to review the FPO at a later date. The Ombudsman had recommended that FPOs should expire after five years, as in Victoria, but the legislation had not been changed to reflect that recommendation.

44. The Ombudsman had said that police had informed him that an FPO would generally be made where the authorizing officer formed the view that a person’s possession of a firearm or ammunition would compromise public safety, and set out a number of examples of the types of situations that might give rise to the issuing of an FPO. They included outlaw motorcycle gang (OMCG) membership, persons convicted of armed robbery, murder, conspiracy to murder, serious assault and other serious violence-related matters and persons involved in firearms trafficking. None of the listed circumstances applied to the applicant.

45. Further, the New South Wales Legislature had indicated that the classes of people to whom they expected the powers to apply included persons engaged in gun crime, persons who should not have access to guns because of their criminal record, persons involved in drug use or supply, and persons who police had good reason to believe were members of organized criminal groups. None of those circumstances applied to the applicant.

46. The submissions also noted that when introducing the relevant Bill, the then Premier, the Hon. Barry O’Farrell MLA, had stated: “Nothing in this legislation should concern innocent citizens of this State. The legislation will concern those who are involved in criminal activities involving guns. This legislation will ensure that those people have no place to hide”. The applicant was clearly one of those innocent citizens and was not involved in criminal activities involving firearms. Yet an FPO had been issued against her.

47. In her oral submissions the applicant reiterated some of those points and added that if there were confidential documents in evidence relating to Esam, they might have come from an informant who was hostile to him. She could not defend herself against evidence and submissions that were confidential. There was no point in having a tribunal hearing if confidential evidence was to be relied on. She wanted above all to ensure that her daughter’s life was not jeopardized.

Consideration

48. Under s 63 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act), the tribunal’s role is to determine whether, having regard to the underlying facts in the matter and the applicable law, that the Commissioner’s decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.

49. The tribunal has jurisdiction to exercise any functions conferred or imposed on it by the Civil and Administrative Tribunal Act 2013 (No. 2) (s 30) and the Firearms Act, including the Commissioner’s making of a firearms prohibition order: s 75(1)(f). The tribunal is to make its own decision and there is no presumption that the Commissioner’s decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.

50. Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is “conditional on the overriding need to ensure public safety”. Consistently with that approach, s 11(3) states that a licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. Section 11(5A) further provides that a licence must not be issued if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that (a) the person is a risk to public safety and (b) the issuing of the licence would be contrary to the public interest. The Commissioner may also refuse to issue a licence if the Commissioner considers the issue of the licence would be contrary to the public interest: s 11(7).

51. The standard of proof that applies in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. There is, however, no burden or onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [34]. The civil standard applies even if the conduct in question may be criminal (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449).

“Not fit, in the public interest”

52. While the applicant in this case is not applying for a licence or permit, the approach illustrated in those provisions is applicable by analogy in relation to the issue raised by s 73(1). The tribunal was not referred to any authorities on the interpretation of s 73(1), other than the comment by the then Premier, Mr O’Farrell, when introducing the relevant Bill, that “Nothing in this legislation should concern innocent citizens of this State. This legislation will concern those who are involved in criminal activities involving guns. This legislation will ensure that those people have no place to hide”.

53. The matter thus appears to be a case of first impression. The language used, “not fit, in the public interest”, is obviously materially different from the “fit and proper person” test in the Firearms Act’s licensing provisions. It implies that even though a person may, like the applicant in this case, have an unblemished record, public interest considerations may render the person unfit and make it appropriate to issue an FPO against him or her.

54. In O’Sullivan v Farrer (1989) 168 CLR 210, [13], the High Court held that the “public interest” imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police v Toloeafoa [1999] NSWADTAP 9, [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms:

[A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.

55. The concept does include 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) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657, 681, the High Court said:

The purpose of the reference to public interest is to ensure that private interests are not the 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.

56. The issue of public interest allows for matters going beyond the applicant’s character to be taken into account. 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, [33].

57. In this context, “what is in the public interest is very substantially the same question is whether there is a threat to public safety”: Barrow v Commissioner of Police, New South Wales Police Service, 6 September 2004, unreported. Further, the threat to public safety may not result from any act or omission by the person against whom the order is issued. “Given the breadth of the Commissioner’s discretion and the overriding object of public safety, there is no basis for differentiating between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence”: Tolley v Commissiopner of Police, New South Wales Police Service [2006] NSWADT 149, [31].

58. The applicant has no criminal history and has not been charged with any offence. She has never been interviewed, cautioned, or her details recorded in relation to any offence or investigation involving a firearm. She does not herself fall within any of the criteria enumerated by the New South Wales Ombudsman Report as possibly giving rise to the issuance of an FPO against a person. She has never applied for a firearms licence and declares that she has no intention of, or any interest in, doing so or in having anything to do with firearms. Viewed in isolation, she is not an appropriate subject for an FPO.

59. The respondent’s concerns, however, relate to her associations. She has been closely involved with two men who are well known to police, have significant criminal histories (though Esam’s is much shorter than Ahmad Alameddine’s: see exhibit R 3, attachments L and M) and have FPOs against them. She was for four years married to one of them, and he is now serving a jail sentence. As they have a daughter together, she is in regular telephone contact with him and is likely to be for many years to come. The other man, Esam, is her de facto and has been for over two years.

60. As was noted above, it is well known that criminal organizations often seek to make use of persons who have no criminal record in the furtherance of their criminal activities. One of the forms that can take is arranging for such persons to store prohibited firearms on behalf of gang members. That was the obvious reason for the search (which located no illegal weapons) of the applicant’s house at the time the FPO was served in May 2017 and for the earlier search on 15 December 2016. A person storing a firearm on behalf of an OCN it is literally in “possession of a firearm” within the meaning of s 4A and therefore of s 73(1).

61. [Not for publication]

62. [Not for publication]

63. The applicant’s obviously genuine preoccupation with her young daughter’s welfare makes it seem unlikely that she would willingly cooperate with any plan to store firearms at her house in preparation for some kind of gang warfare. No questions were put to her in cross-examination about the possible storage of firearms in her house or what her reaction would be if asked to cooperate with such a proposal. Given her connections, however, it is not impossible that she could be coerced into doing so. Persons involved with violent OCNs are unlikely to shrink from bringing pressure to bear upon her.

64. [Not for publication]

65. The applicant contends that she herself has never been accused of doing anything wrong and that it is unfair that she should be subjected to an FPO solely because of her associations. But it is her associations that create the danger to public safety with which the respondent is concerned. Her successive involvement with two men who have criminal records and are subject to FPOs presumably results from her own voluntary choices, and she has never suggested otherwise.

66. In her affidavit the applicant points out that an FPO authorizes police to conduct an unlimited number of searches, and she is concerned about the potential dislocation of her daughter’s life. The last time she was raided it was in the early hours of the morning. That is very disruptive for her daughter and anyone else she is living with.

67. The applicant also maintains that her car has been stopped and searched regularly by police, more often than the COPS records indicate. In particular, she says she was stopped twice on 5 November 2017: once in Marion Street, Condell Park, and once a few minutes later in a street running at right angles to Marion Street, where a 7/11 is located. She was adamant about the details of those stops, including that she had to shield her child from the rain while standing by the roadside, and was quite unshaken by cross-examination about them. Although standard procedures would require the police involved to make a COPS record of the events, no system of record-keeping is infallible and I accept the applicant’s account.

68. Further, as she is currently seeking employment, she is concerned that she would be unable to pass a working with children check because of the FPO, nor would she be able to obtain a security licence. While her concerns are understandable, the liability to warrantless searches is an inevitable legal result of the operation of s 73(1).

69. I therefore find that the applicant is not fit, in the public interest, to be in possession of a firearm. The issuance of an FPO is therefore justified.

Power to revoke FPO

70. The applicant’s former legal representative argued in his written submissions that an FPO is of indefinite duration and cannot be reviewed at a later date. Consequently, she cannot seek to have it revoked if circumstances change. In her affidavit she concluded that, “I don’t know how much this will affect my life in the future, but I do know that I will never be able to appeal it”.

71. The respondent made no submissions on that point, but I think nevertheless that the proposition is incorrect. True it is that the legislation gives the Commissioner no express power to revoke an FPO. But that is not the end of the matter. For the Interpretation Act1987 implies a power to amend or repeal any order made under statutory authority. Section 43(2) of that Act provides as follows:

If an Act or statutory rule confers a power on any person or body to make an order (whether or not the order must be in writing), the power includes power to amend or repeal any order made in the exercise of that power.

72. An FPO is literally an “order” for the purposes of the section. Nothing in s 43 suggests that the order sought to be amended or repealed must be of a legislative character, rather than an executive act such as an FPO.

73. Other things being equal, that appears to be the position under the general law also: DC Pearce, RS Geddes, Statutory Interpretation in Australia (8th edn. 2014, Lexis Nexis Butterworths) p 307.

74. Further support for that interpretation is to be found in the principle that legal interpretation should lean in favour of fairness: “There is a general presumption that the legislature does not intend to achieve a result that is manifestly unfair, unreasonable or arbitrary”: Craies on Legislation (11th edn, 2017, Thomson Reuters) 19.1.5.

75. Lord Diplock explained the presumption in Hillingdon London Borough Council v Commissioner for Racial Equality [1982] AC 779, 787:

Where an Act of Parliament confers upon an administrative body functions which involve its making decisions which affect to their detriment the rights of other persons or curtail their ability to do as they please, there is a presumption that Parliament intended that the administrative body should act fairly towards those persons who will be affected by their decision.

76. Most Australians would consider it unfair that a person should remain subject to an FPO, with its concomitant liability to an unlimited number of warrantless searches at any hour of the day or night, long after the circumstances that caused the Commissioner to form the opinion that the person was not fit in the public interest to possess a firearm had ceased to exist. That would mean, for example, that a single act of youthful imprudence could make a person the subject of potentially arbitrary official action for the rest of his or her life, with no possibility of relief.

77. As at present advised, therefore, I am of the view that the Commissioner (and, on review, this tribunal) has the power, and perhaps a duty, to revoke an FPO if they no longer hold the opinion required by s 73(1). At the same time, for the reasons set out above, the decision under review must be affirmed.

Orders

1. Decision under review affirmed.

2. Pursuant to ss 64(1) (c) and (d) of the CAT Act, the transcript and recording of the confidential hearing, confidential exhibits CR 5 and CR 6, and the contents of all paragraphs in these reasons marked “[Not for publication]” are not to be published or released to the applicant.

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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: 16 February 2018