Hart -v- Commissioner of Police, New South Wales Police Service
[2003] NSWADT 114
•05/20/2003
CITATION: Hart v Commissioner of Police, New South Wales Police Service [2003] NSWADT 114 DIVISION: General Division PARTIES: APPLICANT
Christian Hart
RESPONDENT
Commissioner of Police, New South Wales Police ServiceFILE NUMBER: 033024 HEARING DATES: 31/03/2003 SUBMISSIONS CLOSED: 03/31/2003 DATE OF DECISION:
05/20/2003BEFORE: Montgomery S - Judicial Member APPLICATION: Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Crimes (Sentencing Procedure) Act 1999
Firearms (General) Regulation 1997
Firearms Act 1996
Security Industry Act 1997CASES CITED: Phegan v Commissioner of Police, New South Wales Police Service [2002] NSWADT 127
Turner v Commissioner of Police, New South Wales Police Service [2001] NSWADT 169
Hocking v Commissioner of Police, New South Wales Police Service [2002] NSWADT 214
Moody v Commissioner of Police, New South Wales Police Service [2002] NSWADT 146
Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50
Drake v Minister for Immigration and Ethnic Affairs (1970) 2 ALD 60
McDonald v Director General of Social Security 91984) 1 FCR 354REPRESENTATION: APPLICANT
R Tregenza, barrister
RESPONDENT
C Capper, advocateORDERS: 1 The Commissioner's decision to revoke Mr Hart's Category A firearms licence is affirmed.
The Application
1 These proceedings relate to a decision by the Commissioner of Police, New South Wales Police Service (“the Commissioner”) to revoke the category A firearms licence held by Mr. Christian Hart. Mr. Hart was issued the licence on 25 November 1998 for the genuine reason of recreational hunting/vermin control. The licence was suspended on 8 October 2001 and subsequently revoked on 29 August 2002. The decision to revoke Mr. Hart’s licence followed an event on 3 October 2001 and police attendance at Mr. Hart’s premises. As a result of police inquires Mr. Hart produced an unloaded .22 calibre lever action rifle from the top of a wardrobe in a bedroom of the premises. Mr. Hart also produced two boxes of .22 calibre ammunition from an unlocked chest of drawers in the same room.
2 The firearm and ammunition were confiscated, as was Mr. Hart’s licence. Mr. Hart was subsequently charged in relation to not ensuring the safe keeping of the firearm as required under the Firearms Act1996 (“the Act”) and the Firearms (General) Regulation 1997 (“the Regulation”).
3 On 27 November 2001 the Belmont Local Court found Mr. Hart guilty of “not keep firearm safely- not prohibited firearm/pistol”. No conviction was recorded pursuant to section 10 of the Crimes (Sentencing Procedures) Act 1999.
4 Following the revocation of his licence on 29 August 2002, Mr. Hart sought an internal review of the Commissioner’s decision. The internal review was finalised on 12 December 2002 and the decision was taken that the original decision to revoke Mr. Hart's licence was to stand. Mr. Hart applied to the Tribunal for review of that decision.
Background
5 Mr. Hart's possession of the unsecured firearm was discovered due to police attending his premises in relation to another matter. It is not in dispute that Mr. Hart volunteered that fact that the firearm was on the premises. Nor is it in dispute that if he had not volunteered that information it is unlikely that the unsecured firearm would have been discovered.
6 Mr. Hart has held a firearms licence since 8 September 1993. He has no previous firearm offences. Mr. Hart’s licence was originally granted so that he could carry out vermin control on a rural property on behalf of the owner of the property. In a statement put in evidence Mr. Hart stated that he has carried out that activity once or twice a year and that his firearms are usually stored in a gun safe at his business premises.
7 Mr. Hart stated that on the weekend prior to the 3 October 2001 incident he had been using the .22 calibre rifle on the rural property. He had returned home the previous evening and, as he was not attending his business premises until the following day, he put the rifle on top of the wardrobe. He stated that this was not his normal practice, but was a one-off event.
8 On the evening of 3 October 2001 Mr. Hart called the police in relation to an incident involving his stepdaughter who has a history of mental illness. It took some time for the police to arrive and by that time the situation had been resolved. Nevertheless, the police interviewed both Mr. Hart and his stepdaughter. At the end of the interview Mr. Hart was asked to surrender his firearm and his licence. Mr. Hart subsequently also surrendered two other firearms that were stored in his gun safe.
9 Mr. Hart acknowledges that he failed to comply with the firearms’ legislation and stated that in the future he will strictly observe the legislation. He stated that he does not intend to return the gun safe to his residence and that if his licence is restored and the weapons returned he would not take them into his residence. He also expressed regret for the inconvenience he caused to the Police.
Reviewable decision
10 The reviewable decision is that of the Commissioner to revoke Mr. Hart’s firearms licence. On 29 January 2003 Mr. Hart applied to this Tribunal for review of the Commissioner's decision. The matter was listed before the Tribunal’s President on 18 February 2003 at which time he made directions for the filing of documents and the matter was listed for hearing at Newcastle on 31 March 2003. The matter proceeded on that day.
Applicable Legislation
11 Section 63 of the Administrative Decisions Tribunal Act 1997 provides for the approach to be taken by this Tribunal in determining an application for a review of a reviewable decision. Section 63 provides:
- “ 63 Determination of review by Tribunal
(1) In determining an application for a review of a 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.
(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:
- (a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.”
12 The legislation of most relevance to these proceedings is the Firearms Act 1996 (“the Act”) and the Firearms (General) Regulation 1997 (“the Regulation”). The objects of the Act set out in section 3 which insofar as is relevant to these proceedings provides:
- “ 3 Principles and objects of Act
…
(2) The objects of this Act are as follows:
…
- (e) to ensure that firearms are stored and conveyed in a safe and secure manner, “
13 A licence is held subject to conditions. Section 19 of the Act sets out conditions relevant to these proceedings as follows:
- “ 19 Conditions of licence
(1) A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.
(2) Without limiting subsection (1), each licence is subject to the following conditions:
- (a) the licensee must comply with the relevant safe keeping and storage requirements under this Act,
…”
14 The relevant safe keeping and storage requirements are set out in Part 4 of the Act as follows:
- “ Part 4 - Safe keeping of firearms
39 General requirement
(1) A person who possesses a firearm must take all reasonable precautions to ensure:
- (a) its safe keeping, and
(b) that it is not stolen or lost, and
(c) that it does not come into the possession of a person who is not authorised to possess the firearm.
(2) 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:
- (a) when any such firearm is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable,
(b) if such a receptacle weighs less than 150 kilograms when empty, it must be fixed in order to prevent its easy removal,
(c) the locks of such a receptacle must be of solid metal and be of a type approved by the Commissioner,
(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,
(e) such other requirements relating to security and safe storage as may be prescribed by the regulations.
(2) A licensee does not have to comply with the requirements of this section if the licensee satisfies the Commissioner that the licensee has provided alternative arrangements for the storage of firearms in the licensee’s possession that are of a standard not less than the requirements set out in this section.”
15 The Regulation makes provision for the issue of a licence only if the applicant understands the requirements of the Act concerning firearm safety and storage. Clause 7 of the Regulation provides:
- “7 Licence applicant's understanding of requirements concerning firearm safety and storage
Before being issued with a licence, the applicant must prove to the Commissioner's satisfaction:
- (a) that the applicant is aware of, and understands, the requirements of the Act concerning firearm safety and storage, and
(b) that the applicant will, if issued with a licence, be able to comply with those requirements.”
16 The power of the Commissioner to revoke a firearms licence is set out in section 24 of the Act as follows:
- “ 24 Revocation of licence
(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 the licensee has failed to undertake any firearm safety training required under this Act or the regulations.
(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
(d) for any other reason prescribed by the regulations.
(4) The revocation of a licence by such a notice takes effect when the notice is served or on a later date specified in the notice.
(5) The Commissioner may, by serving a further notice on the holder of a licence, cancel a notice revoking a licence before the notice takes effect.”
17 The Commissioner may also revoke a firearms licence on public interest grounds pursuant to clause 17 of the Regulation. Clause 17 provides as follows:
- 17 Revocation of licence - additional reasons
In accordance with section 24 (2) (d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue to hold it.
18 Mr. Tregenza appeared on behalf of Mr. Hart. Mr. Hart did not appear to present any oral evidence and was not subjected to cross-examination however he provided a statement, which was put in evidence. Mr. Hart does not dispute the Commissioner’s chronology of events. His case is essentially that the circumstances of his case do not justify the revocation of his licence. He asserts that he is no threat to the public and therefore there is no reason why he should not have his licence reinstated. Mr. Tregenza made detailed submissions in support of this argument.
19 Mr. Tregenza, sought to challenge the approach taken in recent decisions of the Tribunal which have adopted the reasoning of the Tribunal’s Deputy President in the matter of Phegan -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127.
20 In Phegan the Deputy President undertook a review of a number of ADT decisions in which the Tribunal had reviewed decisions of the Commissioner to revoke or not issue a firearms licence. In each case the licensee or applicant had breached firearms storage requirements imposed by the Act. The Deputy President stated that:
- “19 These decisions make it clear that for the Tribunal to set aside a revocation decision based on failure to store firearms safely an applicant must show that there are persuasive and relevant considerations which take their matter outside the ordinary case.
20 ... The improvement of public safety by promoting the safe and responsible storage of firearms is identified as one of the underlying principles of the Act. There are no extenuating circumstances in this case which would justify the Tribunal setting aside the Commissioner's decision”.
21 Mr. Tregenza argued that Phegan puts a gloss on the statute that is not there. He argued that Phegan wrongly suggests that there is a presumption that the Commissioner’s decision is correct, and that it therefore places an onus on an applicant before the Tribunal to prove that not to be the case.
22 The power of the Commissioner to revoke a licence is enlivened by breaches of the legislation. Mr. Tregenza concedes that Mr. Hart has breached the storage requirements of the legislation but he argued that once the Commissioner’s power is enlivened there must be more than a prime facie case before a licence is revoked. Mr. Tregenza argued that this is clear from Turner -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 169 which provides authority for an exception in the case of minor and trivial breaches. In Turner Judicial Member Britton stated at paragraphs 32 and 33:
- “32 The legislation provides no express guidance as to how the Commission’s discretion in respect of s. 24(2) should be exercised. I concur with the view expressed by Deputy President Hennessy in Cusumano -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 [at 23] that the discretion to revoke a licence should be exercised in a way which promotes the principles and objects of the Firearms Act. The improvement of public safety by promoting the safe and responsible storage of firearms is identified as one of the underlying principles of the Act. One of the objects of the Act is to ensure that firearms are stored and conveyed in a safe and secure manner: s. 3(2)(e). It is clear from the legislation that Parliament has identified the safe storage of firearms as a central and critical objective of the legislation. As is made clear from Part 4 of the Firearms Act Parliament did not leave the manner in which firearms are to be stored to the discretion of licence holders but instead elected to impose detailed and prescriptive requirements on all licensees.
33 There may be situations where the relevant breach in respect of the storage of firearms is of a trivial or minor nature and of itself does not warrant the revocation of the relevant licence. In this case it could not be said that Mr Turner acted in complete disregard of the statutory requirements to safely store his firearms. Here as pointed out by Mr Carey they were hidden from public view; stored separately from any ammunition; the offending storage arrangements were temporary only. There is no evidence before me to suggest that when stored at his father’s property Mr Turner’s firearms were stored in a manner contrary to the relevant legislative requirements. However the fact remains that Mr Turner was convicted under s. 39 of the Firearms Act for failing to keep firearms safe. I note with some concern that the firearms were stored in a spare room used on occasion by Mr Turner’s young children and that he and his wife were absent from their Falls Creek residence for significant periods during the time the rifles were stored in a manner prohibited by the Firearms Act. “
23 He argued that Mr. Hart’s breach “is of a trivial or minor nature and of itself does not warrant the revocation of the relevant licence”. He referred to the transcript of the Local Court proceedings and urged the Tribunal to note that no conviction was recorded. The presiding Magistrate observed:
- "[A]nything to do with firearms is very serious but on the facts of this case it does appear to be at the low end of the scale."
24 Mr. Tregenza argued that section 24(2)(b) of the Act gives the Commissioner, and the Tribunal, discretion to revoke a licence, however it does not provide for compulsory revocation as does section 24(1) or section 24(1A) of the Act. He submitted that the strict requirements of the legislation must be enforced but in exercising its discretion the Tribunal should look to the correct and preferable decision, taking into account the whole of the circumstances of the breach. There is no presumption that the Commissioner's decision is correct.
25 Mr. Tregenza argued that in Mr. Hart’s case a relevant circumstance is the fact that the presiding Magistrate in the Local Court proceedings did not record a conviction. Other relevant circumstances are the usual method used by Mr. Hart to store his firearms, the fact that this was a one-off incident, Mr. Hart’s expressed contrition and his undertaking as to future conduct.
26 Mr. Tregenza referred to Mr Hart's statement and in particular his reference to his usual storage method. That is, the firearms are usually stored in a sturdy metal cabinet at Mr Hart's commercial premises, some distance from his home. On the date of the event that precipitated the revocation, two other firearms owned by Mr Hart were stored in that cabinet. Mr Hart deliberately installed the gun safe in his commercial premises with the intention that firearms would not be stored at his home.
27 Mr. Tregenza further submitted that this was a one-off incident and was not part of Mr Hart's usual practice. It arose as Mr Hart returned from an excursion to a rural property. He lives some distance from the storage location. He proposed to take the firearm to the commercial premises the next day. Even though he kept the firearm at his home, it was concealed and it is probable that Mr Hart's stepdaughter did not know that it was in the house.
28 With respect to the authorities referring to Phegan, Mr. Tregenza argued that, with the exception of the matter of Hocking -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 214, most of the applicants have not been legally represented. Consequently, he argued, it is unlikely that Phegan has been the subject of legal argument.
29 Mr. Tregenza asked the Tribunal to note that in the matter of Moody -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 146 the Deputy President set aside the Commissioner's decision to revoke Mr Moody's licence.
30 Mr. Tregenza further submitted that if the Tribunal was against him in relation to Phegan, the events of this matter are such as to take out of the ordinary case. He said that Mr Hart has demonstrated that he takes his responsibilities seriously. He has stated that he is sorry to have inconvenienced the Police. Mr Hart is a member of the legal profession and he has given an undertaking that he will strictly observe the legislation in the future. Mr. Tregenza submitted that as a member of the legal profession Mr Hart readily understands the significance of giving an undertaking to the Tribunal. The intention of the legislation is safe storage of firearms. Mr Hart ought to have another chance to meet that objective.
The Commissioner's case
31 The Police Service’s file was put in evidence and the Commissioner relied on the documents contained within that file. The Commissioner’s case is essentially that outlined in the reasons provided following the internal review. With the exception of the particular circumstances of the case, there is no general suggestion that Mr. Hart is not a person of good character. However, the Commissioner considers that there is a public interest issue to be considered and that the interest of public safety must outweigh any personal interests that Mr. Hart might have in possessing his firearms. The Commissioner has concerns about Mr. Hart being the holder of a firearms licence due to his past conduct.
32 The Commissioner argued that had the finding of guilt of Mr. Hart led to a conviction for the firearms offences he would have been precluded from obtaining a firearms licence for ten years. The Commissioner’s delegate referred to the fact that as Mr. Hart has been found guilty of a fundamental breach of the Act as a basis for decided against varying the decision to revoke his firearms licence.
33 The failure by Mr. Hart to store the firearms and ammunition safely placed his family and the public at risk. In these circumstances there is a legitimate concern in relation to public safety.
34 Mr Capper, for the Commissioner, responded to Mr Tregenza's arguments in relation to Phegan. He argued that the legislation is clear and that Phegan supports the legislation. He argued that Phegan does not suggest that there is an automatic revocation of a licence following a breach of stroage requirements of the Act. He said that Phegan provides that, prima facie, if there is a breach, a licensee will lose their licence unless they can show some good reason why that should not be the case.
35 Mr Capper referred to the underlying principle of the Act of improving public safety set out in subsections 3(1)(b)(i) and (ii) and the object of the Act to ensure that firearms are stored and conveyed in a safe and secure manner as set out in section 3(2)(e). He submitted that the Tribunal has agreed to the presumption that if there is a breach a licensee will lose their licence unless they can show some good reason why that should not be the case.
36 Mr Capper referred to the second reading speech in which, on 25 June 1996, the then Attorney General Mr Shaw stated at page 3557:
- “This legislation puts the public's right to safety before the privilege of gun ownership.”
37 He argued that it is clear from the second reading speech that the intention of the legislation is that the Commissioner should cancel a licence if a licensee does not comply with the storage requirements of the Act.
38 Mr Capper said that Mr Hart has breached the condition of his licence imposed by section 19(2)(a) of the Act, in regard to the safe keeping and storage of his firearm. The Commissioner has the power to revoke the licence if a licensee does not comply with the safe storage requirements. He argued that Phegan is correct for that reason.
39 Mr Capper argued that Mr Hart's home is no more than 15 to 20 minutes away from the town centre where his business premises are located. He could have and should have driven this extra distance to ensure that the firearms were safety stored. The legislation establishes a strict regime to be followed. Mr Hart had appropriate available storage and compliance with the legislative regime was achievable. He chose not to comply with a condition on his licence and thereby put his family and the public at risk.
40 Mr Hart's stepdaughter suffers from a disorder that led him in the past to secure his firearms away from his residential premises. Paragraph 9 of Mr Hart statement confirms this. Mr Capper argued that this shows that Mr Hart understood that there is a risk associated with unsafe storage of firearms. Notwithstanding that he understood the risk, he chose to leave the firearms at his home.
41 Mr Capper referred the Tribunal to the matter of Cusumano -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 and submitted that Mr Hart's case is similar to that case. In that case the applicant had stored firearms in a blanket in a wardrobe. Mr Capper said that the Tribunal's decision in Cusumano is supported in Phegan. Phegan has been affirmed on many occasions and while the Tribunal is not bound by its earlier decisions Mr Capper argued that it should be followed.
42 With respect to Mr. Tregenza’s submission that the Tribunal should give weight to the fact that this was a one-off incident Mr Capper said that there are numerous Tribunal decisions where a one-off act has given rise to the revocation of licence. The fact that it is a one-off incident is not significant. The one-off incident could be the occasion that leads to serious consequences. He submitted that Mr Hart, as a licensee, has obligations. He was aware of these obligations but chose to ignore them and put the public and his family at risk. Mr Capper argued that there is nothing in the circumstances of this matter to take it outside the ordinary case.
Nature of proceedings
43 In light of the arguments presented by Mr. Tregenza, I propose to consider the issues raised in relation to Phegan as a preliminary issue.
44 It is settled law that the Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as to either confirm the original decision, vary it, or set it aside and substitute another. The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77.
45 The Act contemplates that the Commissioner will exercise his powers to revoke or to not grant a licence only after he forms the opinion that the power should be exercised. The Commissioner forms that opinion on the basis of one or more of the reasons specified in the Act.
46 Similarly, if the Tribunal is to exercise the powers conferred on the Commissioner to either cancel a licence or refuse to grant a licence, it should do so only after having formed the opinion that the power should be exercised.
47 In Phegan, the Deputy President undertook a review of the earlier Tribunal decisions and having undertaken that review she offered a summary of the approach taken by the Tribunal in each case. She has then stated that the cases suggest that the Tribunal has required that an applicant show that there are persuasive and relevant considerations which take their matter outside the ordinary case. While it is by no means beyond argument, I read the Deputy President’s statement as a summary of the approach adopted by the Tribunal in the matters reviewed. She does not appear to have formed a view as to whether or not the approach adopted is the correct approach. In the absence of Appeal Panel pronouncements on the issue there is no definitive view on the matter from within the Tribunal.
48 The Deputy President decided the matter in Phegan on the basis that “[t]here are no extenuating circumstances in this case which would justify the Tribunal setting aside the Commissioner's decision”. While it could be argued that this approach seeks to place an onus of proof on the Applicant, it can equally be seen as merely adopting a common sense approach. Where there is a good deal of evidence before the Tribunal pointing in one direction, and an intelligent observer could see that unless contrary material comes to light that is the way the decision is likely to go, common sense dictates that a person who has relevant material in his possession should put that material before the Tribunal. If facts are peculiarly within the knowledge of one party to an issue, a failure by that party to produce evidence as to those facts may lead to an unfavourable inference being drawn.
49 In Phegan material regarding Mr. Phegan’s breaches of the Act was before the Tribunal. If Mr. Phegan had knowledge of persuasive and relevant facts regarding the matter before the Tribunal, and those facts were not known to the Commissioner, common sense dictates that he should have put the material before the Tribunal.
50 I see the Deputy President’s statement that there were no extenuating circumstances which would justify the Tribunal setting aside the Commissioner's decision as no more than a statement that she had weighed the material before her in favour of the Commissioner's decision and that Mr. Phegan had presented no evidence to persuade her to form a different view.
51 The issue of whether there is an onus of proof in administrative review matters was considered by the Federal Court in McDonald v Director General of Social Security (1984) 1 FCR 354. The position is clarified in the following passages:
- “[T]he administrative decision-maker will commonly inform himself of the facts by his own inquiries, as well as receiving such proofs as the individual citizen and those who may be authorised to oppose the citizen's interest choose to place before him. And he will not ordinarily be free, as a court is ordinarily free, to determine a matter against the party on whom lies the onus of proof, and who fails to offer any proof in discharge of the onus, without further inquiry. When the party to litigation on whom the onus of proof of an issue lies has concluded his evidence, the Court may be called upon by the other party to determine the question of law whether that evidence can support a verdict or finding for him on whom the onus lies. Except by special legislative direction no administrative decision-maker could be so constrained. In many cases subject to administrative decision there is in any event no other party in controversy with him on whom the onus may be said to lie. ... In a court the principles are expressed in terms of the onus or burden of proof. When those principles are applied in an administrative tribunal, there may be risk of misconception if the curial modes of expression are employed.”
52 I do not see the approach adopted by the Deputy President in Phegan as in conflict with McDonald v Director General of Social Security, and in what is generally regarded as settled law, that there is no evidential onus of proof in these proceedings.
53 If I have misinterpreted the Deputy President’s intention, it remains my view that these are not adversarial proceedings in which the applicant carries an onus of proof. The applicant, by making the application, triggers a process of merits review by the Tribunal. The applicant does not take on the responsibility of having to prove a case, nor does an applicant cause the Commissioner to have to prove a case. The applicant and the Commissioner are before the Tribunal as parties by virtue of section 67(2) of the Administrative Decisions Tribunal Act1997 (“the ADT Act”). The Tribunal makes its own decision in place of the Commissioner’s, and there is no presumption that the Commissioner’s decision is correct. To this extent I agree with Mr. Tregenza.
54 When there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be satisfied to the civil standard of proof, that is, on the balance of probabilities (McDonald at 357).
Findings Generally
55 In this application, I have considered all of the evidence and the oral argument presented before the Tribunal. In particular I have reached the following findings of fact:
- - Mr. Hart has held a firearms licence since approximately 1986. On 25 November 1998 he was issued a category A firearms licence, for the genuine reason of recreational hunting/vermin control;
- Mr. Hart’s usual practice was to store his firearms in a gun safe which is housed at his commercial premises, away from his domestic premises;
- if his licence is restored and firearms returned Mr. Hart intends to continue to utilise the gun safe away from his domestic premises in the future;
- the circumstances of the firearms seizure on 3 October 2001 related to a request by Mr. Hart for police to attend his premises. This request was not in any other way involving a firearm;
- a firearm in Mr. Hart’s possession was stored on the top of a wardrobe in the main bedroom of his residence. Ammunition for this firearm was stored in the same room in a chest of drawers;
- this is the first occasion Mr. Hart has come to adverse notice with respect to firearms.
- in Belmont Local Court on 27 November 2001 Mr. Hart was found guilty of 'not keep firearm safely- not prohibited firearm/pistol'. No conviction was recorded pursuant to Section 10 of the Crimes (Sentencing Procedures) Act 1999;
56 The principal issue that I have to decide is whether there is a risk to the safety of the public if Mr. Hart’s licence is reinstated. Before a licence is issued, the Commissioner must conclude that there is virtually no risk to the public associated with the issue of the licence. The likelihood of risk must be assessed by reference to the Applicant’s prior conduct. In Mr. Hart’s case, there is a history of failure to comply with the legislative requirements regarding storage of firearms. Mr. Hart has breached certain provisions of the Act in relation to storage of firearms even though he was not convicted of those offences. Against this must be weighed his undertaking as to future conduct.
57 Part 4 of the Act provides for the safekeeping of firearms. The general requirements are set out in s 39 which relevantly provides that 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.
58 One of the underlying principles of the Act is the improvement of public safety by promoting the safe and responsible storage of firearms. This is clear from the Act and that principle has been reinforced in numerous decisions of this Tribunal, including Phegan.
59 I note the views expressed by the presiding magistrate in the Local Court proceedings that have been referred to above and I agree with what he has said. The Magistrate has correctly observed that any breach of the firearm storage requirements is very serious and in that respect he has acknowledged the underlying principle of the Act. However, the proceedings in the Local Court are independent of these proceedings and serve a different purpose.
60 It is clear from the legislation that Parliament has identified the safe storage of firearms as a central and critical objective of the legislation. Parliament did not leave the manner in which firearms are to be stored to the discretion of licence holders but instead elected to impose detailed and prescriptive requirements on all licensees. Mr. Hart’s offences must be viewed with reference to the principles and objects of the Act. In this case it could not be said that Mr. Hart has acted in complete disregard of the statutory requirements to safely store his firearms. Two of his three firearms were stored in a gun safe in accordance with the legislation.
61 However the fact remains that Mr Hart was found guilty of offences relating to failure to keep firearms stored safely. I note with some concern that the firearm was stored at Mr Hart’s residence. In my view, given the history of incidents involving his stepdaughter, Mr. Hart could reasonably have been expected to be extra cautious about the storage of his firearms. His stepdaughter clearly suffers from a depressive illness and had a history of violent behaviour. While there is no suggestion that she accessed the firearms, it was predictable that if she had done so severe consequences could have resulted. The fact that Mr Hart usually stored his firearms away from his residence is recognition of that fact.
62 Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them. As a member of the legal profession and a person who has been associated with firearms for a relatively lengthy period of time, it is probable that Mr Hart was aware of his responsibilities. As such, it can only be assumed that he chose to disregard those responsibilities and ignore the basic safety requirements of the Act. He provided no adequate explanation for his conduct.
63 Section 24(2)(b)(i) of the Act gives the Commissioner (and the Tribunal) a wide discretion to revoke a licence if the licensee contravenes any provision of the Act or the Regulation. The subject matter of the contravention, ie Mr Hart’s election to disregard his responsibilities and ignore the basic safety requirements of the Act, is a highly relevant consideration. I must consider all relevant circumstances but since breaches of the storage requirements erode the protection of public safety, there would need to be other persuasive considerations before I would be prepared to set aside the Commissioner's decision.
64 I have noted the factors to which Mr. Tregenza has referred. I have no reason to doubt that these proceedings are the end result of a one-off incident. I also accept that Mr. Hart has given an undertaking as to future conduct and that as a legal practitioner he is aware of the importance of such an undertaking. As a legal practitioner he is probably also aware of the significance of remorse as indicating acceptance of wrong done and the potential consequences of that wrong. I note that in his statement Mr. Hart stated that he is “sorry to have inconvenienced the Police”. Nowhere in his statement does he express regret for the risk to his family or the public from his actions.
65 Having weighed the evidence, it is my view that that the gravity of the fact that Mr Hart chose to disregard his responsibilities and ignore the basic safety requirements of the Act outweighs the other relevant factors.
66 Taking account of the competing considerations, I cannot be satisfied that Mr Hart poses virtually no risk to public safety. While over a year has passed since the one-off incident occurred, I cannot as yet be satisfied that sufficient time has passed since that incident for the public to be comfortable with Mr. Hart holding a firearms licence. It follows in my view that the correct and preferable decision is to revoke Mr. Hart’s firearms licence. Accordingly I affirm the Commissioner's decision. With the passage of further time and the absence of further incidents, that situation can change. Should Mr. Hart then choose to reapply for a firearms licence, the Commissioner may well reach a different conclusion.
Orders
- 1. The Commissioner’s decision to revoke Mr. Hart’s Category A firearms licence is affirmed.
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