Hardi v Commissioner of Police, NSW Police Force

[2022] NSWCATAD 312

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Hardi v Commissioner of Police, NSW Police Force [2022] NSWCATAD 312

Hearing dates:

1 August 2022

Date of orders:

26 September 2022

Decision date:

26 September 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

(1) The decision under review is set aside.

(2) The decision is made that the licence application is granted subject to the Applicant demonstrating to the Respondent that he has completed a current Firearms Safety Awareness Course.

Catchwords:

Administrative Law – firearm - refusal of licence - firearms offences - prohibited firearm - not have approved storage - public interest

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Firearms Act 1996 (NSW)

Firearms Regulation 2017 (NSW)

Cases Cited:

Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

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

Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50

Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63

Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89

Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.

Minister for Immigration and Citizenship v Li [2013] 297 ALR 225

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28

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

Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Peter Hardi (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Applicant (Self Represented)
Bartier Perry (Respondent)

File Number(s):

2022/00125663

Publication restriction:

Nil

Reasons for Decision

Introduction

1. This is an application by Mr Peter Hardi (“the Applicant”) for review of the decision by a delegate of the Commissioner of Police (“the Respondent”). The delegate decided to refuse the Applicant’s application for a Category A firearms licence under the Firearms Act 1996 (NSW) (“the Act”). The Respondent refused the application on the ground that it is not in the public interest for the Applicant to hold a firearms licence.

Background

2. The Applicant was issued with a Category AB firearms licence in June 2010. The licence was to expire in June 2015 however it was revoked on public interest grounds in September 2011.

3. In September 2011 the Applicant appeared before the Local Court on the charges of Possess unauthorised prohibited firearm -T2, Alter firearms so as to convert it to a prohibited firearm - T2 and Holder of Category A or B licence not have approved storage. The charges related to the possession and alteration of a Remington 7615 Pump Action Rifle (“the Remington Rifle”) and the incorrect storage of ammunition. The Applicant was found guilty of the three offences and in respect to each offence he was placed on bonds to be of good behaviour for a period of 18 months pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999. The presiding Magistrate stated:

In relation to all of these matters I find the offences proved but they are serious, so I am discharging you on entering into a bond to be good behaviour for eighteen months which means there is no conviction.

4. The September 2011 revocation decision was affirmed on internal review. In the reasons for decision the internal reviewer noted:

You had modified your Remington Pump Action rifle with various attachments that render it a prohibited firearm. I note that you were not the holder of a licence or permit authorising you to possess a prohibited firearm.

In your request for an internal review you tendered various documents showing eBay pages and magazine article to demonstrate the availability of the stock, which was found fitted your Remington pump action rifle, and that there was no mention that fitting the accessory to a firearm may render it a prohibited firearm. I note that your legal representative also raised the matter in your Court hearing submitting that yours was an honest and reasonable mistake.

It is not the responsibility of a vendor or a magazine to inform a prospective buyer of any legal implications that may arise from fitting an accessory to a firearm.

Further, this is not a scenario specific only to firearms as a car owner may purchase accessories or parts from stores or on-line which when added to their vehicle may then result in a breach of road transport legislation.

In my opinion it is unrealistic to expect that a vendor should warn customers regarding the fitting of accessories as it would be an extremely onerous exercise; they simply could not be aware of every possible scenario for the various jurisdictions in Australia.

It is the responsibility of each firearms licence holder to satisfy themselves that any accessory added or alteration made to their firearm is done so within the law. Ignorance of the requirements of the Act is not an excuse.

5. In February 2021 the Applicant lodged a new application for a firearms licence. In his licence application he provided the following information in response to the question Have you ever had a firearms licence or permit suspended or revoked, whether in New South Wales or elsewhere?

In 2011 Police were called to my home based on false allegations from my ex-girlfriend whom had a personality disorder, for false stalking and intimidation accusations.

At the same time, false allegations of possession of a handgun and machine gun were made.

A search warrant was executed, my home was searched 2-3 times, nothing found except my registered firearms. The stalking and intimidation charges were dismissed in court (my ex-girlfriend was almost charged for lying to Police in court but wasn't). During the confiscation period/AVO the Police claimed one of my firearms was converted into a prohibited firearm due to the buttstock accessory which was reviewed in an Australian Shooters Magazine, which I purchased online, and added to my firearm which might have classified it as a prohibited firearm in NSW.

The Police facts sheet also contained wrong/false information. More than 95% of my ammunition was stored correctly, 5% was not.

Therefore I was charged with safe storage …

Due to the greyness of the legislation and this firearm part, and my lawyers inability to understand the technicality of the accessory, including the magistrate, I had to plead guilty to all three charges.

It was a Knox extendable buttstock (as in magazine review) - it was 3cm longer than the original buttstock, and was able to extend the butt stock by about 3 inches, to make the firearm longer but due to the legislation, it is classified as telescopic, but never made the firearm any shorter or more concealable such as a collapsing or folding butt stock which can swiftly shorten the firearm. What danger was this to the community for having an accessory like this... none.

Due to my zero criminal history/nor any violence or issues on my COPS records to this date of 47 years, my good character and previous charity and community work I received a Section 10 No Conviction. I have official audio transcript recording of the Firearms hearing if this is needed. …

Ballistics Report claim my Remington was self- loading, this is not the case, was pump action …

6. A delegate of the Commissioner refused the application in April 2021. The decision was affirmed on internal review. In support of the application for internal review, the Applicant’s solicitor, Mr Munslow, referred to agreed facts in the 2011 matter and explained:

On 13 September 2011 Mr Hardy appeared in Waverley Court charged with possession of an unauthorised prohibited firearm (s7(1)), alter firearm to convert it to a prohibited firearm (s63 (3)) and not have approved storage s40(1).

...

The 'unauthorised prohibited firearm' was a Remington 7615P, a rifle that was lawfully held. It was secured in Cat AB storage, though not prohibited weapon storage, and that only became prohibited, when fitted with an extendible stock (Firearms Act sch 1 item 11).

The firearm was fitted with a telescopic sight and not a laser sight. Contrary to the Registry finding in ref 102003456/CMU: KXC dated 21 November 2011, it was not fitted with any additions other than the stock which were prohibited.

The Knoxx Industries Axiom stock that was fitted to his rifle was reviewed in ‘Sporting Shooter Magazine' in 2010 by Nick Harvey, a popular and widely read shooting magazine. Whilst distributed nationally, the publisher, Yaffa, is based in Sydney, and the writer is NSW based.

…

The central feature of the Axion stock is its recoil reducing properties and not a tactical look of concealability, indeed, as originally manufactured, the length of pull is adjustable from 286 to 358 mm however the Australian importers had installed a grub screw to prevent it from being adjusted.

At the time of purchase, Mr Hardi was struggling with a shoulder injury, and sought to reduce recoil.

Mr Hardi had presumed therefore that the stock was legal in NSW as there was no mention of illegality in the article. He purchased his from an on-line gun shop in Queensland.

Australian gun shops that trade online are usually very cautious not to breach gun laws by shipping items into a state where they may not be lawfully held. This was not the case in this instance.

The problem for Mr Hardi was that he had made a mistake regarding the question of whether the Axiom stock was legal or not. A mistake of law is not an excuse; however, it is a mitigating factor.

Mr Hardi ordinarily keeps his ammunition locked up. About 4% of his ammunition on this occasion was not secured. It was unsecured because he had removed that ammunition from storage with view to going to the range. This had not occurred because of rain.

The Magistrate took into account Mr Hardi's good character, and gave him the benefit of section 10, but, as a result of his otherwise good character, and firearms charges, imposed an 18-month Good Behaviour Bond.

7. The Applicant has applied to the Tribunal for external review of the decision to refuse his licence application.

The issue for determination

8. The issue in the present case is whether the correct and preferable decision is to affirm, vary or set aside the Commissioner’s decision and, specifically, whether it is contrary to the public interest for the Applicant to hold a licence under the Act.

The Tribunal’s Approach

9. The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all material first considered, together with any further relevant material to either confirm the original decision, vary it, or set it aside and substitute another. The Tribunal is 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: section 63 of the Administrative Decision Review Act 1997 (NSW) (“the ADR Act”).

10. The Tribunal makes its own decision in place of the Commissioner’s, and there is no presumption that the Commissioner’s decision is correct.

11. These are not adversarial proceedings in which the Applicant carries an onus of proof. By making the application, the Applicant triggers a process of merits review by the Tribunal. He does not take on the responsibility of having to prove a case, nor does he cause the Commissioner to have to prove a case. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities.

12. Under section 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

13. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at paragraph [23].

14. The discretion must be exercised keeping in mind the activities which are authorised by a licence/authority/certificate etc. under the Act. Accordingly, the objects and purposes of the Act are relevant.

Applicable legislation

15. Section 9 of the ADR Act provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred on the Tribunal by section 75 of the Act. The Tribunal’s jurisdiction includes review of decisions by the Commissioner to refuse an application for a firearms licence.

16. This application is made under section 75 of the Act and the ADR Act.

17. The Act sets up a scheme to license people to possess and use firearms. One of the underlying principles of the Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms.

18. The underlying principles of the Act provided clear guidance as to how it is to be administered generally. Section 3(1) provides:

(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) to facilitate a national approach to the control of firearms.

19. The Commissioner, and therefore the Tribunal, has discretion in regard to the issues to be decided in this matter and the Act provides no guidance on how that discretion should be exercised. However, in Minister for Immigration and Citizenship v Li [2013] 297 ALR 225, the majority of the High Court stated at paragraph [67]:

[W]here discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority [[1998] HCA 28] requires nothing less. ...

20. Section 4 of the Act defines prohibited firearm to mean “a firearm described in Schedule 1”. Schedule 1 of the Act provides for prohibited firearms for the purposes of section 4(1), This includes:

A firearm, not being a pistol, fitted with a stock that is specially designed so as to be readily detachable, or to operate on a swivel, folding or telescopic basis.

21. Section 7 of the Act provides:

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.

   22. Section 11(3)(a) of the Act prescribes that a firearms licence must not be issued unless that 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.

   23. Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if she considers that issue of the licence would be contrary to the public interest.

   24. Section 12(1) of the Act provides that the Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm. Relevantly, section 12 provides:

2. Genuine reasons for having a licence

3. The Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm.

...

1. Subject to this Act, an applicant for a licence has a genuine reason for possessing or using a firearm if the applicant—

(a)   states that he or she intends to possess or use the firearm for any one or more of the reasons set out in the Table to this section, and

(b)   is able to produce evidence to the Commissioner that he or she satisfies the requirements specified in respect of any such reason.

Reason: sport/target shooting

The applicant must be a current member of a shooting club approved by the Commissioner in accordance with the regulations, and which conducts competitions or activities requiring the use of the firearm for which the licence is sought.

...

25. Clause 29 of the Firearms Regulation 2017 (NSW) (“the Regulation”) provides:

29 Sport/target shooting

A licence that is issued for the genuine reason of sport/target shooting is subject to the following conditions (in addition to any other conditions to which the licence is subject)—

(a)   the licensee must comply with any applicable requirements of Part 10 (Participation requirements for club members),

(b)   the licence does not authorise the use of a firearm except at a shooting range approved under Part 8.

cl 29: Am 2021 (314), Sch 1[9].

26. Clause 107 of the Regulation provides:

107 Participation requirements for sport/target shooters (other than pistol shooters)

The holder of a licence issued for the genuine reason of sport/target shooting (not being a category H licence) must be a member of at least one approved shooting club (other than a pistol club) and must, during each compliance period for such a club of which the person is a member, participate in not less than 4 shooting activities of an approved shooting club (other than a pistol club) whether or not of a club of which the person is a member.

27. Clause 111 of the Regulation concerns membership of more than one approved club. It provides:

111 Membership of more than one approved club

1. If the holder of a licence who is required under this Part to be a member of an approved club of a particular category is a member of more than one approved club of that category, the following provisions apply—

(a)    the licensee must nominate a principal club of that category of which the licensee is a member and with which the licensee will mainly be involved,

(b)    the licensee must notify the Commissioner of the nominated principal club in writing or in such other manner as may be approved,

(c)    if the licensee participates in any compliance activity of a club of that category that is not the licensee’s nominated principal club of that category—the licensee must notify the nominated principal club in writing of the details of any such activity within each compliance period of the nominated principal club,

(d) compliance activity is required only during a compliance period of the nominated principal club.

(2) In this clause, compliance activity means an activity in which a person participates for the purposes of compliance with a requirement of this Part.

28. Part 4 of the Act provides for the safe keeping of firearms. Sections 39 and 40 in Part 4 provide:

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.

Maximum penalty—50 penalty units or imprisonment for 2 years, or both, if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or a pistol, or 20 penalty units or imprisonment for 12 months, or both, in any other case.

Note—

Reference to a pistol includes a prohibited pistol.

1. The regulations may specify the precautions that are taken to be reasonable precautions for the purposes of this section.

40 Category A and category B licence requirements

1. The holder of a category A or category B licence must comply with the following requirements in respect of any firearm to which the licence applies—

…

(d)   any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the receptacle containing any such firearm,

...

Public interest

29. Section 11(7) of the Act provides:

Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

30. As noted, the Respondent contends that it is not in the public interest for the Applicant to hold a firearms licence. The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence:

"25 The "public interest“ is an inherently broad concept giving the appellant the ability to have regard to a wide range 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."

31. The 'public interest' allows 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: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.

32. “Public interest' embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to 'the 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 decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.

33. The licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum.

34. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at paragraph [28] Hennessy DP said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Although Ward was a case on the "fit and proper person" test, the formulation has been held to also apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at paragraph [23].

35. It is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110. Risk to the public includes risk to the Applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.

The material before the Tribunal

36. The Respondent relies on a bundle of documents filed under section 58 of the ADR Act (“the section 58 documents”) and submissions. A copy of the forensic ballistics investigation report from June 2011 (“the ballistics report”) is in evidence. Ms Moses, the Respondent’s solicitor provided written submissions and also made oral submissions at the hearing.

37. The Applicant relies on his own evidence. He attended the hearing, gave evidence and was cross-examined.

The Respondent’s case

38. The Respondent points to the fact that the Applicant was charged and found guilty of three firearms offences. It is not in dispute that the Applicant plead guilty to:

1. Possession of an unauthorised prohibited firearm;

2. Altering a firearm so as to convert it to a prohibited firearm; and

3. failing to store ammunition in compliance with safe keeping requirements.

39. In March 2011 the Remington Rifle and incorrectly stored ammunition were found at the Applicant’s premises. The Remington Rifle and the ammunition were analysed by the NSW Police ballistics unit which provided the ballistics report. The Remington Rifle was found to be fitted with a stock that is specifically designed to operate on a telescopic basis. It was concluded that the Remington Rifle was a prohibited firearm. It is not in dispute that the Applicant had attached the stock to the Remington Rifle.

40. The Applicant plead guilty to the charges and the charges were found proven.

41. As noted above, the Applicant’s solicitor, Mr Munslow, provided submissions in support of an application for internal review. In those submissions he conceded that:

1. when it was seized the Remington Rifle was fitted with a telescopic stock; and

2. the Applicant transformed the Remington Rifle into a prohibited weapon and was less than diligent in the securing of the ammunition.

42. The Respondent noted that Mr Munslow recommended that the Applicant undertake a current firearms safety awareness course.

43. In his firearms application the Applicant conceded that the stock was telescopic. He also conceded that he purchased the stock and fitted it to the Remington Rifle.

44. The Respondent submits that in the circumstances it is not open to the Tribunal to find that the Remington Rifle was not a prohibited firearm as described in Schedule 1 of the Act. There can be no doubt that the Applicant breached section 7 of the Act by possessing a prohibited firearm without a licence or permit; or that the Applicant converted the Remington Rifle into a prohibited firearm without being authorised to do so.

45. The Respondent noted that Mr Munslow also asserted that about 4% of the Applicant’s ammunition was not secured correctly. In his firearms application the Applicant stated that 5% of his ammunition was not stored correctly. The Respondent submits that there can be no doubt that the Applicant did not store his ammunition safely in accordance with the Act.

46. Section 40(1)(d) of the Act provides that ‘any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the receptacle containing such firearm’. The Respondent submits that it is clear on the Applicant’s own concessions, that the ammunition was not stored in strict compliance with the requirements of the Act. As such, there can be no doubt that the Applicant breached the Act in failing to strictly comply with the storage requirements.

47. The Respondent further submits that the Applicant has failed to accept responsibility for the non-compliance with firearms law. He has sought to question the ballistics report and the firearms charges; minimise his conduct in purchasing and affixing the telegraphic stock; and minimise his incorrect storage of the ammunition. The Respondent submits that despite his plea of guilty and the finding of the Court and imposing a good behaviour bond of 18 months, the Applicant does not accept responsibility for his conduct. He has failed to accept that he has an obligation to comply with the law. He continues to demonstrate a lack of understanding and/or desire to comply with the strict requirements of the firearms legislation.

48. The Respondent submits that in the circumstances the correct and preferable decision is to affirm the refusal of the Applicant's licence application.

The Applicant's case

49. The Applicant relies on his own evidence and submissions as well as the submissions made by Mr Munslow. He seeks a Category A licence for a target air rifle only. In support of the application for internal review, Mr Munslow submitted:

I submit he is a fit and proper person to be granted a firearms licence.

I would recommend however that as part of the process of granting him a firearms licence, he be required to undertake a current Firearms Safety Awareness Course.

50. In submissions that accompanied his licence application he wrote:

In 2011 Police were called to my home based on false allegations ... At the same time, false allegations of possession of a handgun and machine gun were made. A search warrant was executed, my home was searched 2-3 times, nothing found except my registered firearms.

...

During the confiscation period/AVO the Police claimed one of my firearms was converted into a prohibited firearm due to the buttstock accessory, which was reviewed in an Australian Shooters Magazine, which I purchased online, and added to my firearm which might have classified it as a prohibited firearm in NSW. The Police facts sheet also contained wrong/false information. More than 95% of my ammunition was stored correctly, 5% was not. Therefore I was charged with safe storage …

Due to the greyness of the legislation and this firearm part, and my lawyer’s inability to understand the technicality of the accessory, including the magistrate, I had to plead guilty to all three charges.

It was a Knoxx extendable buttstock … - it was 3cm longer than the original buttstock, and was able to extend the butt stock by about 3 inches, to make the firearm longer but due to the legislation, it is classified as telescopic, but never made the firearm any shorter or more concealable such as a collapsing or folding butt stock which can swiftly shorten the firearm. What danger was this to the community for having an accessory like this...none.

Due to my zero criminal history/nor any violence or issues on my COPS records to this date of 47 years, my good character and previous charity and community work I received a Section 10 No Conviction.

51. The Applicant also annexed a number of other documents to his licence application. These included the ballistics report which, he noted, wrongly claimed that the Remington Rifle was self-loading. He noted that in fact the rifle was pump action.

52. The Applicant also provided a copy of the March 2010 Sporting Shooter magazine article by Nick Harvey which reviewed The Knoxx Industries Axiom Ultra-Light Rifle Stock. The Applicant’s decision to purchase the item was influenced by this article. He submitted that no mention was made in the article that fitting the accessory to a firearm may render it a prohibited firearm.

53. He also provided an email from Laurie Campbell of the Respondent’s Compliance a & Intelligence Unit which conceded that the firearms legislation has not kept pace with technological/ergonomic advances in the firearms industry.

54. The Applicant does not dispute that he plead guilty to the firearms charges or that the charges were found proven. However, he argues that it was not a black and white issue and that the charges could have been defended. He did not provide any expert evidence in support of that assertion.

55. He conceded that some of his ammunition was not properly stored. However, he stated that it was the result of an oversight.

56. He stated that as a result of his experiences he has become much more vigilant than he used to be. His evidence is that he has communicated with the Respondent in relation to various items in order to ascertain whether those items can be legally held. He is now very cautious. He said that if he had known that the alteration to the Remington Rifle would have created a prohibited weapon, he would not have purchased the stock.

57. He appreciates that strict compliance with the law is required of firearms owners. He said that he is acutely aware that if he commits any further firearms offences, it is likely that a conviction will be recorded.

58. He understands the importance of personal and community safety and has had ten years to has had time to reflect upon the consequences of non-compliance with firearms laws.

59. However, he maintains his view that the legislation is not clear. It is not clear that he accepts that the Remington Rifle was a prohibited weapon because of the alteration that he undertook to it. He accepts that a breach of the firearms legislation created a danger to the community, but he stated that he doesn’t understand the reasoning underlying that position. He does not understand how the alteration of the Remington Rifle created any actual danger to the public.

Discussion

60. The Applicant was first issued a category AB firearms licence in 1998 and he held licences without any incidents until it was suspended and revoked in 2011. The Respondent does not contend that he is not a fit and proper person to be granted a firearms licence. The issue is whether it is contrary to the public interest for the Applicant to hold a licence under the Act.

61. It is not in dispute that that the Applicant was charged with three firearms offences in 2011. In light of the Respondent’s ballistics report he entered a guilty plea in relation to each of the offences. Similarly, it is not in dispute that each of the offences was found proven. He has not come to the attention of police since those offences.

62. I agree with the Respondent that the Applicant’s reasons for entering the guilty plea are not relevant to this matter.

63. I note that the Applicant appears to question the accuracy of the ballistics report, but he has not provided any expert evidence to contradict the report.

64. In the circumstances there can be no doubt that the Applicant was in possession of an unauthorised prohibited firearm or that he had altered the Remington Rifle in a manner that converted it to a prohibited firearm. There is also no doubt that some of his ammunition was not secured as required by the legislation.

65. In arriving at its decision, the Local Court had the opportunity to consider the Applicant’s explanation for his conduct.

66. On the evidence before me it appears that the Applicant did not take the necessary steps to ensure that the alterations that he proposed to make to the Remington Rifle would not breach the legislation. The fact that he still maintains that some provisions in the legislation has led the Respondent to question his willingness to comply with the legislation if he does not agree with its application.

67. I agree that it is not for a licensee to provide their own interpretation if there is any greyness in the legislation. The Applicant’s communications with the Respondent since his offences suggests that he has adopted the approach of consulting with the Respondent where he is uncertain about the legality of various items. I therefore do not share the Respondent’s concerns in this regard.

68. A significant period of time has passed since the offences and, as the Applicant has noted, he has had time to reflect upon the consequences of non-compliance with firearms legislation. I accept his assertions that he has accepted that he has the responsibility to comply with the legislation.

69. However, I agree with Mr Munslow that the Applicant should be required to undertake a current Firearms Safety Awareness Course. This issue was raised at the hearing and I do not understand the Respondent to dispute the suggestion.

70. I am satisfied that if the Applicant completes that course successfully, he will have had the opportunity to refresh his knowledge and will be able to show a level of understanding of the obligations imposed upon a licensee.

71. I am satisfied that he has the capacity to comply with the obligations that would be imposed upon him by the legislation.

72. In my view, there would be virtually no risk to the public if the Applicant completes that course successfully and is granted a Category A licence. I am not satisfied that it is contrary to the public interest for the Applicant to hold a licence under the Act.

73. In the circumstances, it is my view that the Applicant should be granted the licence that he is seeking once he has undertaken a current Firearms Safety Awareness Course.

74. Accordingly, the decision under review should be set aside and in its place the order should be made that the lice be granted subject to that condition.

Orders

1. The decision under review is set aside.

2. The decision is made that the licence application is granted subject to the Applicant demonstrating to the Respondent that he has completed a current Firearms Safety Awareness Course.

**********

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: 26 September 2022