Harvey v Commissioner of Police, NSW Police Force

[2017] NSWCATAD 26

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Harvey v Commissioner of Police, NSW Police Force [2017] NSWCATAD 26
Hearing dates:	20 October 2016
Date of orders:	13 January 2017
Decision date:	13 January 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	D Dinnen, Senior Member
Decision:	The decisions under review are affirmed.
Catchwords:	FIREARMS – revocation of licence – refusal of licence – genuine reasons – false or misleading statements - criminal record – evidence - alleged conduct - fit and proper – risk to public safety – public interest.
Legislation Cited:	Administrative Decisions Review Act 1997Civil and Administrative Tribunal Act 2013 Firearms Act 1996 Firearms Regulation 2006
Cases Cited:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 32; [1990] HCA 33 Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 Commissioner of Police v Toleafoa [1999] NSW ADTAP 9 Cusumano v Commissioner of Police, New South Wales Police Service, [2001] NSW ADT 50 Davos v Commissioner of Police [2013] NSWADT 7 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88 Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 Lynch v Commissioner of Police [2006] NSW ADTAP 43 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Vella v Commissioner of Police [2003]NSWADT 91 Ward v Commissioner of Police [2000] NSW ADT 28
Category:	Principal judgment
Parties:	Benjamin Harvey (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Solicitors: Hartmann & Associates (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	1610428

REASONS FOR DECISION

Background

1. The Applicant was issued Category H Firearms (Security) Licences on 29 November 1997 and 22 January 2003 (Licence number 405442712).

2. On 31 March 2003 the Applicant was charged with seven offences involving the possession, storage, and usage of firearms and common assault. On 9 February 2004 the Applicant pleaded guilty and was sentenced for three of the seven charges in Windsor Local Court. The other four charges were dismissed or withdrawn. The Facts Sheet for the charges, which was accepted without amendment, contained a history of domestic abuse, including a threat by the Applicant in relation to his access to firearms.

3. The Applicant’s Category H Firearms licence was revoked consequent to his sentencing for the three firearms offences.

4. According to the Respondent, the Applicant avoided police between February and May 2004 but then attended the local police station voluntarily on 14 May 2004, at which time he was served with the notice of revocation and surrendered his security licence.

5. The revocation of a firearms licence carries with it a ten year exclusion period (section 11(5)(b) of the Firearms Act 1996), which would expire in 2014.

6. In 2012, the Applicant established a registered charity “Reptile Rescue & Removal Service Inc” in New South Wales.

7. On 29 April 2014, around the time that the ten year exclusion period expired, the Applicant applied for a Personal Firearms Licence Category AB (Sport/Target Shooting and Recreational Hunting Vermin Control). In the “personal history” section of the application, to the question “Have you in NSW or elsewhere been, or are presently, subject to a firearms/weapons prohibition order, other than an order that has been revoked?”, the Applicant checked the “No” box. “Genuine Reason Forms” were provided for both the Sport/Target Shooting and Recreational Hunting/Vermin Control categories, both of which relied on the Applicant’s membership of the Sporting Shooters Association of Australia Inc. The licence was granted.

8. On 30 June 2014, the Applicant applied for a Personal Firearms Licence Category H (Sport/Target Shooting). In the “personal history” section of the application, to the question “Have you in NSW or elsewhere been, or are presently, subject to a firearms/weapons prohibition order, other than an order that has been revoked?”, the Applicant checked the “No” box. A “Genuine Reason” form was provided which relied on Principal Club Membership, without the details being completed as required by the form. A Pistol Safe Handling Course Completion Certificate dated 26 June 2014 from SSAA St Marys Pistol Club was included with the application. The licence was granted.

9. On 23 February 2015, the Applicant applied for a Personal Firearms Licence Category D (Verterbrate pest animal control/ animal welfare). In the “personal history” section of the application, to the question “Have you in NSW or elsewhere been, or are presently, subject to a firearms/weapons prohibition order, other than an order that has been revoked?”, the Applicant checked the “No” box. A “Genuine Reason - Vertebrate Pest Animal Control – Contract Shooter” form was provided for categories A, B and D licences.

10. The certification of the Applicant as a Professional Contract Shooter was provided by an accountant, Wendy J Goh. Documents in support provided by the Applicant included a letter from Ms Goh, an ASIC record of registration of business name for NSW Reptile Rescue and Removal Service Inc, and three “Vertebrate Pest Control Contracts” for the Applicant’s business, Reptile Rescue and Removal Service Inc.

11. On 14 August 2015 the NSW Police Force revoked the Applicant’s Category A B firearms licence number 405442712 and his probationary pistol licence number 411220577, on the basis of the application and documentation provided in support for the Category D firearms licence.

12. Also on 14 August 2015 the NSW Police Force refused the applicant’s Category D Firearms licence application.

13. On 10 September 2015 the Applicant sought internal review of the revocation decisions. On 15 September 2015 the Respondent acknowledged receipt of the Applicant’s request for internal review of the decisions to revoke his Category AB firearms licence, revoke his Probationary Pistol Licence, and to refuse his firearms licence application for Category D.

14. On 26 October 2015 the Applicant’s legal representative informed the Respondent that the Applicant had agreed not to pursue any further applications for Category C or D licences, and confirmed that the request for internal review related to only his Category A, B and Probationary Pistol licences. Further information was provided by the Applicant’s legal representative to support his internal review application.

15. On 19 January 2016 the Respondent notified the Applicant of its additional refusal of his Category AB firearms licence application for the genuine reason of Vertebrate Pest Animal Control – Contract Shooter and Animal Welfare.

16. On 20 January 2016 the Respondent wrote to the Applicant to suggest that the internal review could be postponed until the Applicant had the opportunity to consider and respond to the decision of 19 January 2016.

17. On 11 February 2016 the Applicant’s legal representative provided further documentation in support of the Applicant’s request for internal review, including a licence from the Office of Environment and Heritage dated 3 February 2016, and a further two authorities from individuals giving the Applicant access to their properties for pest control shooting. The licence from the Office of Environment and Heritage allowed “Harm (by means of capture) and release reptiles causing problems at residential, commercial or other building or property in the Sydney area in accordance with the provisions of Sections 120 and 127 of the above Act and subject to the general conditions contained therein.”

18. On 22 March 2016 the Applicant attended an electronically recorded interview held by NSW Police at Quakers Hills Police Station, with his legal representative.

19. On 21 June 2016 the Respondent conducted its internal review and determined to affirm the decisions to refuse and revoke the relevant licences. This application for review of the Respondent’s internal review decision was made on 15 July 2016.

Legislation

20. The underlying principles of the Act are, relevantly:

1. to confirm that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety; and

2. to improve public safety by imposing strict controls on the possession and use of firearms and by promoting the safe and responsible storage and use of firearms.

21. Section 11(3)(a) of the Act provides that the Commissioner may issue a licence to a person who applies for one, but must not do so 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.

22. Section 11(7) provides that:

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.

23. Section 12 of the Act prescribes the “genuine reasons” considered by the Respondent in the issuing of licences for possessing and using firearms:

FIREARMS ACT 1996 - SECT 12

Genuine reasons for having a licence

12 Genuine reasons for having a licence

(cf APMC 3, 1990 Reg cl 22A)

(1) 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.

(2) An applicant does not have a genuine reason for possessing or using a firearm if the applicant intends to possess or use the firearm for any of the following reasons:

(a) personal protection or the protection of any other person,

(b) the protection of property (other than in circumstances constituting a genuine reason as set out in the Table to this section).

(3) Subsection (2) does not limit the reasons which the Commissioner may be satisfied are not genuine reasons for the purposes of justifying the possession or use of a firearm.

(4) 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.

Table

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.

Reason: recreational hunting/vermin control

The applicant must:

(a) be the owner or occupier of rural land, or

(b) produce proof of permission given by the owner or occupier of rural land, or by an officer of the National Parks and Wildlife Service, the Department of Lands or other authority prescribed by the regulations, to shoot on rural land, or

(b1) produce proof of permission given by a land manager within the meaning of the Forestry Act 2012 to shoot on land in respect of which the land manager is authorised to exercise functions as land manager under that Act, or

(c) be a current member of a hunting club approved by the Commissioner in accordance with the regulations.

The regulations may provide for the manner and form in which any such permission is to be given, the extent to which it operates, and how it is to be produced as evidence by the applicant. A person does not, so long as the person is authorised to give permission to shoot on land referred to in paragraph (b) or (b1), incur any liability merely because the person gives the applicant permission to shoot on the land concerned.

Reason: primary production

The applicant must:

(a) be a person whose occupation is the business of a primary producer, or who is the owner, lessee or manager of land used for primary production, and

(b) state that he or she intends to use the firearm solely in connection with farming or grazing activities (including the suppression of vertebrate pest animals on the land concerned).

Reason: vertebrate pest animal control

The applicant must be:

(a) a professional contract shooter engaged or employed in controlling vertebrate pest animals on rural land, or

(b) a person employed by or in, or authorised by, a government agency prescribed by the regulations that has functions relating to the control or suppression of vertebrate pest animals, or

(c) a person whose occupation is the business of a primary producer, or who is the owner, lessee or manager of land used for primary production, and who is participating in an authorised campaign conducted by or on behalf of a government agency or public authority to eradicate large feral animals or animals that are affected by brucellosis or tuberculosis.

Reason: business or employment

The applicant must demonstrate that it is necessary in the conduct of the applicant’s business or employment to possess or use the firearm for which the licence is sought.

Reason: occupational requirements relating to rural purposes

The applicant must be employed or engaged in a rural occupation that requires the possession or use of the firearm for which the licence is sought.

Reason: animal welfare

The applicant must be:

(a) an officer of the RSPCA or the Animal Welfare League who is appointed by the Minister administering the Prevention of Cruelty to Animals Act 1979 as an officer for the purposes of that Act, or

(b) a veterinary practitioner, or

(c) a person who is employed in the Department of Primary Industries or is a member of staff of Local Land Services and who has responsibility for animal welfare, or

(d) an owner, transporter, drover or other handler of animals who may need to destroy animals to avoid suffering.

Reason: firearms collection

The applicant must:

(a) be a current member of a collectors’ society or club approved by the Commissioner in accordance with the regulations, and

(b) provide a written statement by that collectors’ society or club confirming that the applicant’s firearms collection has a genuine commemorative, historical, thematic or financial value.

24. Section 24 of the Act provides for the revocation of licences in a range of circumstances, including:

(2) A licence may be revoked:

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

(b) if the licensee:

(i) supplied information which was (to the licensee’s knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or

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

(iii) contravenes any condition of the licence, or

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

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

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

25. Clause 19 of the Firearms Regulation 2006 prescribes that:

19 Revocation of licence-additional reasons

The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

26. The Tribunal has jurisdiction to review the Respondent’s decision pursuant to section 75(1) (c) of the Act and section 30 of the Civil and Administrative Tribunal Act 2013.

27. The Tribunal can take into account both the material before the original decision maker as well as any new material put before the Tribunal. See Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77.

Fit and Proper

28. The High Court dealt with the expression "fit and proper person" in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11; 64 ALJR 462; 21 ALD 1. In that matter the ABT was required to refuse a licence if it was not satisfied that the Applicant or the holder of a licence was a “fit and proper person". Toohey and Gaudron JJ stated (at 380) that:

“The expression “fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper “cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. “

29. In the same case, Mason CJ stated at [63] that:

“The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.”

30. In Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at paragraph [9] the High Court defined the concept of fitness and propriety as having three components - "honesty, knowledge and ability."

31. In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said of the term “fit and proper ":

"In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails."

32. In FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88, Judicial Member Molony said at [45]:

Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake.

33. The Applicant’s fitness and propriety must be determined in the light of the role he is to undertake. The Tribunal must consider the evidence before it, taking into account and weighing up matters both contrary to and in favour of the Applicant.

34. In Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 Senior Member Higgins dealt with an application in relation to firearms licensing under the Act. At paragraph [22] she stated that the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety.

“22 In my opinion, the term "fit and proper person" in s. 11(3)(a) of the Act should also be given a wide meaning. As stated by Mason CJ the breadth and content of the concept must be derived from the Act and the purposes of the Act. In this case, Parliament has expressly stated what the underlying principles of the Act are. This includes the principle that the possession of a firearm is a privilege and that it is conditional on the overriding need to ensure public safety (see s. 3(1)(a)). Accordingly, the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety. In my opinion Parliament has made this clear with the additional words in s. 11(3)(a) of "... and can be trusted to have possession of firearms without danger to public safety and the peace." That is, s. 11(3)(a) of the Act requires the Commissioner to determine the fitness and propriety of an applicant for a licence by having regard to the applicant's conduct and whether that conduct is such that he can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace.”

The public interest

35. Section 24(2) (d) of the Act prescribes that a licence may be revoked for a reason prescribed by the Regulation. Clause 19 of the Regulation allows the Commissioner of Police to revoke a licence if he is satisfied that it is not in the public interest for the licensee to continue to hold the licence. Accordingly section 24 (2) (d) of the Act and Clause 19 of the Regulation work together to provide authority for the revocation of a licence where the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

36. The concept of "public interest" was discussed by the Administrative Decisions Tribunal (NSW) (“the ADT”) in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 as follows:

The "public interest" is an inherently broad concept giving an appellant [the Respondent] 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 in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operated 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.

37. The circumstances in Toleafoa related to the revocation of a security licence under the Security Industry Act 1997 (NSW). In Ward v Commissioner of Police [2000] NSWADT 28, the ADT confirmed that these comments apply equally to the Act.

38. In Cusumano v Commissioner of Police [2001] NSWADT 50, the ADT stated:

There is no guidance in the legislation in relation to how these directions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.

39. In Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43, the ADT Appeal Panel said that the relevant factors to be considered by the Respondent in determining whether to exercise his discretion include matters of general public policy, which were in turn said to be informed by the principles and objectives of the Act, namely, to confirm firearm possession and use as a privilege conditional upon the overriding need to ensure public safety.

40. In Ward v Commissioner of Police the ADT's Deputy President Hennessy considered the fitness and propriety of Mr Ward to hold a firearms licence. The Deputy President stated at paragraphs [27 – 28]:

"27 ...The question for the Tribunal is whether, based on all the evidence, it would have confidence that [the Applicant] would not pose a risk to public safety if he had access to firearms.

28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk."

41. The principal issue in determining public safety is therefore whether or not there is a risk to the safety of the public if the Applicant retains the relevant licence: Vella v Commissioner of Police [2003] NSWADT 91.

42. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences: Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7, [117].

43. In considering risk to public safety, the ADT recognised that it must be satisfied that a person would not pose a risk to public safety if they had access to firearms. Those same principles apply to the current jurisdiction.

Material before the Tribunal

44. The Respondent filed a bundle of material pursuant to section 58 of the Administrative Decisions Review Act 1997. This bundle contained the material taken into account in making the reviewable determination, including the Applicant’s firearms licence history, criminal history and antecedents, COPS records, facts sheet from the criminal proceedings, the applicant’s firearms applications and all supporting documentation, the revocation and refusal notices issues by the Respondent, transcript of the recorded interview of the applicant in relation to his firearms licence applications, correspondence between the parties, and the reviewable determination and its reasons.

45. The Respondent additionally relied on a bundle of material including records of the Applicant’s charity, contemporaneous notes made by Senior Constable Wayne Jackson, extract of file notes from the NSW Police Force Firearms Registry, and the Code of Practice for Injured, Sick and Orphaned Protected Fauna from the NSW Office of Environment and Heritage.

46. The Applicant gave oral evidence at the hearing and additionally relied on written submissions. Both parties made oral submissions.

The Respondent’s case

47. The Respondent relied on the internal review and its reasons. The Respondent contended that the Applicant is not a fit and proper person to hold a firearms licence; and that it is not in the public interest for him to hold a firearms licence.

48. The Respondent submitted the revocation of the Category A B firearms licence obtained for the genuine reasons of sport/target shooting and recreational hunting/vermin control, and the revocation of the Probationary Pistol licence (Category H) was justified on the basis of contravention of firearms legislation, namely the Applicant had provided false and misleading information in his application for a Category D firearms licence, and that the Commissioner was satisfied that it was not in the public interest for the Applicant to continue to hold the license because of safety concerns raised by his indication to shoot on an unsuitably sized property.

49. The false and misleading information was submitted to have arisen in the Category D licence application, including letters and certification from the Applicant’s acquaintances that he was a contract shooter, when those individuals held no such knowledge

50. The Respondent submitted that the refusal of the Category A, B Firearms licence for the genuine reasons of Vertebrate Pest Animal Control – Contract Shooter and Animal Welfare was justified on the basis that the Applicant did not satisfy the criteria for those genuine reasons.

51. The Respondent submitted that on the evidence the Applicant was not, as claimed, a professional contract shooter engaged or employed in controlling vertebrate pest animals on rural land. It was submitted that the contracts provided by the Applicant as proof of his engagement as a contract shooter were intended to “fool the Commissioner”, and were not actual contracts, to the extent that they did not provide any consideration for the Applicant’s proposed services, and were not eventuated. The evidence demonstrated that the Applicant had limited experience in vermin control, which consisted of shooting two or three rabbits. His involvement in animal welfare was restricted to a “catch and release” licence, although he admitted to having euthanised wildlife before. He had no specific knowledge of which pest species were present on the particular sites for which he sought shooting access, and was rather seeking property locations large enough to support his application for a Category D licence.

52. The Respondent submitted that, despite the Applicant’s convictions being spent, the Tribunal could not be satisfied that it was in the public interest to grant the Applicant the licences he was seeking or wished to maintain. The Respondent submitted that the evidence demonstrated that the Tribunal could not be satisfied the Applicant had met the relevant requirements for the “genuine reasons” for each category of licence under review.

The Applicant’s case

53. The Applicant relied on his oral evidence, the documents contained in the Section 58 bundle, and written and oral submissions of his legal representative.

54. The Applicant gave evidence that he had been providing a free local service for a number of years for the removal of reptiles from local properties. He established a charitable organisation to support that service, and intended to become a “professional contract shooter” for the purpose of removing pests which became prey for, or preyed on, the reptiles he removed.

55. In relations to the allegations of false and misleading information, being the information and supporting documentation provided in the Category D Licence application, the Applicant argued that had no intention to mislead Firearms Registry. The Applicant submitted that to obtain the Category D licence he needed to demonstrate that he was a professional contract shooter, but he could not be a professional contract shooter without first getting the Category D licence. As a result, he sought connections with people he believed could provide him with opportunities for pest control, through church and family friends. He created “contracts” with those people to demonstrate his engagement as a professional contract shooter on their properties. He also obtained certification from another church friend, Ms Goh, who was qualified as an accountant, and submitted that he did not know she needed to be his accountant to provide that certification.

56. In evidence the Applicant stated that he initiated discussions regarding pest control with acquaintances he met through Church and his children’s school. He checked out a property “to decide whether it was suitable”, because “Senior Constable Jackson said large properties were required”, taking a rifle with him. He contacted the Firearms Registry to clarify the application requirements.

57. He “grew up in the industry” but had no formal training or education regarding animal welfare, wildlife capture or removal, handling, treating or euthanizing native (or non-native) fauna beyond a Certificate III in Animal Welfare and Husbandry from 2004 and assisting a friend who had an exhibitor’s licence.

58. The Applicant’s representative submitted that the Applicant was naïve in his applications, but that wasn’t reason enough to cancel his licences. It was also submitted that the Tribunal needed to examine the Applicant’s intentions in making the misleading statements and providing the questionable documents to the Firearms Registry, as he was unclear of what was required for his application to succeed and sought advice from the Firearms Registry.

59. In relation to the public interest test, the Applicant submitted that over 12 years had passed since the convictions, during which time the Applicant had not come to the attention of Police. The Applicant’s representative submitted that the facts of the Applicant’s recorded convictions from 2003/4 were inaccurate, and that the circumstances of his criminality were never tested because there had been a plea of guilty and he had been represented by the Duty Solicitor at the time. He gave an alternative version of events which included full compliance with the Police requests, ignorance of requirements and denial of knowledge of the storage of firearms at his premises. The Applicant gave evidence of these matters which included some inconsistencies regarding his knowledge of the contents of the bag in which the firearms were allegedly stored by his friend.

Discussion

60. The evidence in regard to the Applicant’s actions in applying for the Category D licence is disturbing. Although the application for that category of licence is no longer pressed, his application and its supporting documentation, and his oral evidence in relation to those matters, is relevant to my determination of whether he is a “fit and proper” person as required by the Act. I agree with the Notice of Refusal for that category licence which expressed that the Applicant has “a keen interest in prohibited firearms and weapons” and “will go to great lengths to gain access to prohibited firearms and weapons”.

61. The Applicant is entitled to his interest in firearms, but his actions in attempting to gain access to a category of firearm which he was previously illegally in possession of has, on the evidence, included making false statements and inducing others to make false statements on his behalf. On his evidence, he has gone so far as to cultivate acquaintances from his church and children’s school for the purpose of obtaining the supporting documentation he believed necessary for his application. He has attended properties to search for and shoot pests, without any consideration for public safety or whether pests were present or needed eradication on the specific property. His experience in shooting vermin is limited to two or so rabbits shot at one of those acquaintance’s properties.

62. The Applicant submits that intention is important to determination of whether he is a fit and proper person, specifically that he had no intention to mislead the Firearms Registry. On the facts, I find that the Applicant did intend to mislead Registry. So much is demonstrated by the Applicant’s submission that the application process was a “catch 22” scenario, where he couldn’t obtain a licence without being a professional shooter, but he couldn’t be a professional shooter without holding a licence. The Applicant’s response was to create documentation identifying him as a professional contract shooter, which he was not, in order to mislead the Registry into believing that he was a professional contract shooter, so that he could obtain the licence. Having held firearms licences previously and having been convicted of firearms offences, I reject the submission that the Applicant was naïve in this respect.

63. I am also concerned that the Applicant’s focus in providing “Animal Welfare”, which was another of the “genuine reasons” provided to support his Category AB Firearms Licence, is more on the eradication of fauna by shooting, than the capture and release provided for by his NSW Office of Environment and Heritage licence. In evidence at hearing the Applicant stated that he “has euthanised animals before”, when shown Schedule 7.1 of the Code of Practice for Injured, Sick and Orphaned Protected Fauna. I note that the NSW Office of Environment and Heritage licence was obtained in February 2016, just prior to his request for internal review, and specifies conditions of “capture and release” only, not eradication by euthanasia or other means. In the record of interview with Senior Constable Jackson on 22 March 2016, the Applicant expressed that he wasn’t aware of any other type of controlling pests other than shooting them. When it was proposed that poisoning or trapping were other means of control, the Applicant stated “It’s not something I would consider”.

64. The Applicant’s evidence and his actions demonstrate, at the least, an ignorance of the appropriate legal framework for dealing with protected fauna, and the requirements of vermin control other than shooting. These indicate to me that he does not fulfil the requirements of a genuine reason for obtaining a Category A, B firearms licence for animal welfare or vertebrate pest animal control.

65. In relation to the revocation of the Category A B Licence for the genuine reasons of “target shooting and recreational hunting/vermin control”, I find that the Applicant’s evidence demonstrates a real risk to public safety if the Applicant maintains his firearms licence. The only safety course he has completed, on the evidence, is a safety course for the St Marys Pistol Club prior to applying for his Probationary Pistol Licence in 2014. That licence expired in 2015. The Respondent’s evidence demonstrates that the Applicant’s knowledge of target species, appropriate type or style of shooting for types and calibres of firearms, and safety issues regarding size and zoning of land on which he was proposing to target practice, and hunt or control pests, was obtained from conversations with the Registry and Senior Constable Jackson. Senior Constable Jackson’s opinion was that the Applicant’s lack of firearm safety knowledge poses a public risk to safety, and I agree.

66. I therefore find that the Applicant does not have the requisite honesty, knowledge or ability to be considered a fit and proper person with respect to the requirements of the Act. In finding this, I take into consideration the Applicant’s evidence, including that the firearms charges which he was convicted for occurred over 10 years ago, and that he hadn’t come to the attention of police since that time. I also take into consideration the Applicant’s evidence that he held the Category A B and H firearms licence without incident from 14 June 2014 until it was revoked on 14 August 2015, and that prior to the revocation of the licence, the firearms safe storage facilities at his residence were inspected by Police and approved. I take into consideration that the Applicant operates a not-for-profit or charitable organisation for the purpose of assisting people in removed unwanted reptiles from their homes, although I am concerned that this may not be being operated in accordance with NSW Office of Environment and Heritage requirements. I also take into consideration that the Applicant has demonstrated attempts to inform himself through discussions with the NSW Firearms Registry, although I do not consider these attempts sufficient education or training.

67. The Tribunal's consideration is guided by the fact that "The most fundamental principle of the Act is that the possession and use of firearms is conditional upon the overriding need for public safety". I find that the positive considerations in relation to the Applicant’s fitness and propriety are outweighed by the deficiencies in honesty, knowledge or ability outlined above, and the important need for ensuring public safety, which I find would be at risk if the Applicant were to obtain or retain the Category A, B and H Licences. I find that it is not in the public interest for the Applicant to have a Category A, B or H firearms licence.

Order

1. The decisions under review are affirmed.

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: 13 January 2017