Jones v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 284

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Jones v Commissioner of Police, NSW Police Force [2023] NSWCATAD 284

Hearing dates:

2 March 2023

Date of orders:

31 October 2023

Decision date:

31 October 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

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

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:

Austin v Commissioner of Fair Trading & Commissioner of Police [2016] NSWCATAP 179

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

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

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

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

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

El Saadi v Commissioner of Police (No 2) [2021] NSWCATAD 336

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

Laing v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 315

Livadaru v Commissioner of Police [2008] NSWADT 160

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

Weckert v Commissioner of Police, NSW Police Force [2010] NSWADT 197

Category:

Principal judgment

Parties:

Daniel Jones (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
Kells Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2022/204356

Publication restriction:

Nil

REASONS FOR DECISION

1. The applicant, Mr Jones seeks administrative review of the Commissioner of Police’s (“the Commissioner”) decision made on 21 April 2021 under the Firearms Act 1996 (“the Firearms Act”), to revoke his category AB gun licence. The decision was internally reviewed and affirmed by the Commissioner on 6 July 2022. The Commissioner has applied for external review of that decision by the Tribunal.

Introduction

2. The applicant, who at the time of the hearing was 34 years of age. The Commissioner’s delegate formed the view that it was not in the public interest for the applicant to continue to hold a AB firearms licence (the “Licence”). The Commissioner decided to revoke the Licence. That decision was based on the Commissioner forming the view that information revealed the applicant has close associations with persons who have links to outlaw motor cycle gangs (“OMCG”) and extensive criminal history, and that those connections raise concerns regarding public safety.

Background

3. On 31 January 2018, the applicant was issued the Licence. The Licence expires on 21 September 2023.

4. The applicant is employed as a farm hand. As part of his duties, he asserts a firearm is an essential tool for vermin control and euthanizing animals.

5. Between 5 October 2018 and 14 March 2019, the applicant applied for six permits to acquire a firearm pursuant to s 31(1) of the Firearms Act. Each of the firearms to which those permits to acquire relate were formerly owned by Ms Natalie Harris (“Ms Harris”), who is the partner of Mr Robert Mank (“Mr Mank”). The applicant lives at Mr Mank and Ms Harris’ business property in Greenwell Point. Ms Harris owns that property. Mr Mank owns a property where he and Ms Harris reside 900 metres from where the applicant resides.

6. On 15 July 2021, police attended the applicant’s residence and served a Notice of Revocation on the applicant. Police seized the applicant’s six registered firearms, bolts, magazines and ammunition.

The Applicant’s personal history

7. The Commissioner has referred to a number of incidents occurring years ago, namely, on 18 June 2010, 30 April 2015 and 22 November 2015, whereby the applicant was involved with police. I have taken those incidents into consideration.

8. On 5 July 2019, the applicant was involved in an altercation at a licensed premises with another patron. It is alleged that the applicant hit the other person in the back of the head with a piece of wood, unprovoked. When questioned by police the applicant denied the allegation but admitted to punching the other patron in the face causing him to fall backwards onto the ground. He provided an explanation at the time that he was aggressive towards the person as he was acting ‘crazy’. He said this was in self-defence.

9. On 31 March 2020, the applicant updated his residential address with Roads and Maritime Services and NSW Police to Mr Mank and Ms Harris’ business property in Greenwell Point. This property is about 400 metres from the applicant’s prior residential address. The records of RMS appear consistent with the written submissions of the applicant. It is also conceded, and I accept, that the applicant lives in close proximity, about 900 metres from Mr Mank and Ms Harris’ residential property.

10. On 14 April 2021, police undertook an inspection of the applicant’s firearms which were located at the Mank/Harris business property. No discrepancies were identified. This is not disputed.

11. On 15 July 2021, the applicant was served with a Notice of Revocation of his firearms licence at his home address. His firearms were seized.

12. Documents filed by the Commissioner indicate that as at 18 January 2023, the applicant’s residential address remains at the Mank/Harris business property. Again this is not in dispute.

13. At paragraph 62 of the Commissioner’s written submissions the following extensive history of non-compliance with the motor vehicle licensing scheme is recorded against the applicant. He has twelve infringements between 2009 and 2021. I do not intend to set each offence. I have considered them. They are not contested by the applicant. The numerous infringements demonstrate that the applicant shows little regard to the privilege of holding a motor vehicle licence which I give moderate weight in terms of his ability to comply with a licensing scheme.

Mr Mank and Ms Harris

14. The documents relied upon by the Commissioner disclose Mr Mank has a considerable criminal history, spanning from 2000 to 2021, which includes:

1. firearms or other weapons offences (including possess offensive weapon in a place of detention) in 2006 and 2021;

2. a violent offence in 2000 and an allegation of a violent offence in 2005;

3. drug related offences (including introduction of drugs into correctional facilities) in 2006, 2018 and 2021;

4. being in charge of an uncontrolled dog in a public place and being in charge of a dog which attacked a person in a public place in 2011;

5. dishonesty offences in 2013.

15. Mr Mank is a member of an OMCG.

16. Prior to 21 May 2018, Mr Mank held a firearms licence. The licence was revoked on 21 May 2018. A Firearms Prohibition Order (“FPO”) and a Weapons Prohibition Order (“WPO”) were served on Mr Mank also on that date.

17. In June 2020, Mr Mank attempted suicide by cyanide poisoning.

18. On 30 January 2021, Mr Mank again attempted suicide by the same means. When police attended the Mank/Harris business address in response to the attempted suicide, firearms and ammunition were located in contravention of Mr Mank’s FPO.

19. On 22 February 2021, Mr Mank was charged with various firearm related offences while subject an FPO. Mr Mank was convicted of those offences and sentenced to a period of imprisonment for eighteen months.

20. The Commissioner has determined it is not in the public interest (including according to public safety considerations) for the applicant to continue to hold a firearms licence (s 24(2)(d) of the Firearms Act).

21. The Commissioner also relies upon information contained in the confidential documents which formed part of the material before me.

22. The applicant did not appear at the hearing. He was represented by a solicitor. It was submitted that the correct and preferable decision is to set aside the decision to revoke his Licence. He provided no reasonable explanation for not appearing. Due to his non-appearance, the Commissioner did not have the opportunity to test his evidence.

23. The Commissioner contends that the decision to revoke the applicant’s Licence is the correct and preferable decision. I agree. These are my reasons.

Jurisdiction

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

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

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

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

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

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

(2)   A licence may be revoked—

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

(b)   if the licensee—

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

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

(iii)   contravenes any condition of the licence, or

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

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

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

….

25. Clause 20 of the Firearms Regulation 2017 provides:

20 Revocation of licence—licence not in the public interest

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

26. Section 7 of the Firearms Act, provides that it is an offence for a person to hold a prohibited firearm without a licence or permit:

(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.

: Maximum penalty--imprisonment for 14 years.

Note : Reference to a pistol includes a prohibited pistol.

(2) Without limiting the operation of subsection (1), a person who is the holder of a licence is guilty of an offence under this section if the person--

(a) uses a pistol or prohibited firearm for any purpose otherwise than in connection with the purpose established by the person as being the genuine reason for possessing or using the pistol or prohibited firearm, or

(b) contravenes any condition of the licence.

(3) If, on the trial for an offence under this section, the jury is not satisfied that the accused is guilty of the offence but is satisfied on the evidence that the person is guilty of an offence under section 7A, it may find the person not guilty of the offence but guilty of an offence under section 7A, and the accused is liable to punishment accordingly.

27. Section 39 of the Firearms act deals with safe storage requires, s 39 provides:

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.

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

28. The specific requirements for a Category AB Licence are set out in s 40, which provides:

Category A and category B licence requirements

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.

: Maximum penalty--20 penalty units or imprisonment for 12 months, or both.

(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.

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

Part 8 Applications to Civil and Administrative Tribunal

75 Administrative reviews by Civil and Administrative Tribunal of certain decisions

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

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

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

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

(d)   ..

(e)   …

(f)   …

(g)   …

(Emphasis added)

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

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

(a)   any relevant factual material,

(b)   any applicable written or unwritten law.

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

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

(a)   to affirm the administratively reviewable decision, or

(b)   to vary the administratively reviewable decision, or

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

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

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

Administrative Review by the Tribunal

32. The applicant filed his application for administrative review on 12 July 2022. The Internal Review decision was made available to the applicant on or about 6 July 2022. The application has been lodged within time.

Issues for determination?

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

• Is the applicant a fit and proper person to hold a firearms licence?

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

34. These issues will be determined on the basis of factual findings in this review arising from a consideration of the evidence and law.

Applicant’s evidence

35. Exhibit ‘A1’ - application.

36. Exhibit ‘A2’ – three character references.

The Commissioners’ evidence

37. Exhibit ‘R1’ - documents filed under s 58 ADR Act on 23 August 2022.

38. Exhibit ‘R2’ - documents filed under s 58 ADR Act on 11 October 2022.

39. Exhibit ‘R3’ - documents filed under s 58 ADR Act on 13 February 2023.

40. Exhibit ‘CR4’ - Confidential documents

41. Both parties were legally represented. They provided written submissions and made oral submissions at hearing. The applicant did not make himself available for cross-examination.

The applicant’s evidence

42. The applicant provided no statement and gave no oral evidence.

43. In written submissions he contends that he was working on a farm for Mr Mank as a farmhand on a property owned by Ms Harris. He asserts his only association with Mr Mank and Ms Harris is one of employer/employee.

44. The submissions acknowledge that Mr Mank and Ms Harris live some distance down the road. The applicant concedes he purchased a number of firearms belonging to Ms Harris at a fair market price. This was after Mr Mank attempted suicide.

Character References

45. The applicant included three character references. The references attest to his community involvement, him being a hard and reliable worker and a person who can be relied upon. Due to the authors not referring to the matters for consideration in this proceeding, I give them little weight.

Applicant’s submissions

46. In written submissions the applicant contends that the Tribunal should find that his only association with Mr Mank was an employment relationship. He asserts that the relationship with Mr Mank has ceased and that the purchase of firearms from Ms Harris was at fair market value. Where the applicant has filed no evidence in support of these submissions I do not accept those submissions.

47. I accept that the applicant has held a firearms licence for a period of three years without any incident recorded. Apart from a poor driving record, the applicant has no recorded criminal history.

48. The applicant submits that he is being ‘punished’ for having an association as an employee with Mr Mank who is a member of an OMCG. This is in the context of there being no evidence available to prove that he is not a fit and proper person to hold a firearms licence. He asserts that when balancing the real and appreciable risk and excluding the minimal, fanciful and theoretical risk, the Tribunal could and would be satisfied on the evidence before it, that it would be in the public interest to allow the applicant to apply for the reinstatement of his firearms licence.

The Commissioner’s submissions

49. The Commissioner submits that the Tribunal should be satisfied on the available evidence that the applicant:

1. the applicant is involved (knowingly or unknowingly) in a scheme facilitated by Mr Mank and/or Ms Harris to ensure that Mr Mank and Ms Harris could continue to access their firearms despite not holding licences to do so;

2. the applicant has a close association with Mr Mank, whose criminal record and OMCG membership makes it contrary to the public interest for the applicant to hold a firearms licence; and

3. the applicant has a demonstrated history of resorting to violence in the face of aggressive behaviour.

50. I accept these submissions.

The Applicant’s firearms licence is designed to circumvent the licensing scheme

51. The Commissioner submits that the applications made by the applicant in applying for a firearms licence on 8 June 2018 was within three weeks of the seizure of Ms Harris’ firearms from the Mank/Harris business property and the date Mr Mank was served with the FPO and WPO. The applicant then applied for six permits to acquire firearms between 5 October 2018 and 14 March 2019. The six firearms acquired by the applicant were the same firearms which were seized from the Mank/Harris business property on 21 May 2018. No permit to acquire any firearm was applied for by the applicant other than the firearms seized from Ms Harris on 21 May 2018.

52. I accept the Commissioner’s submission that the inference that can be drawn from the sequence of these events is that the applicant either knowingly or unknowingly facilitated the storage of firearms formerly owned by Ms Harris at the Mank/Harris business property. It is unfortunate that the applicant did not give evidence to explain his conduct. To give him the benefit of the doubt, it may be that Mr Mank and Ms Harris took advantage of the applicant’s naivety so that they could maintain access to their firearms after they were seized from Ms Harris. However, in the absence of any evidence from the applicant, the applicant’s motivation remains unknown.

The Applicant’s association with Mr Mank creates a risk to the public safety if the applicant were to hold a firearms licence

53. Mr Mank’s criminal history and antecedents are such that the applicant’s close association with him means that it is not in the public interest for the applicant to hold a firearms licence. I have given consideration to the Tribunal’s discussion in El Saadi v Commissioner of Police (No 2) [2021] NSWCATAD 336, where SM Walker stated at [66], that ‘continued associations with ‘known criminals’ is a consideration worthy of reasonable weight’. In accordance with the authorities I am not satisfied that the applicant’s clean criminal record is sufficient to overcome a risk to the public safety where he maintains an association with a person who has an extensive criminal history.

54. I have taken into consideration that this is aggravated by the fact that the applicant purchased Ms Harris’ firearms from her after her licence and permits were revoked and that the firearms were stored on the Mank/Harris business property. I accept the Commissioner’s submissions that there is a risk to public safety that is real and not fanciful or theoretical. I find that these circumstances disclose that a finding of ‘virtually no risk’ could not be made.

55. As indicated above, I am not able to find that the applicant has established that he no longer has an ongoing relationship with Mr Mank in any form. The applicant continues to live at the Mank/Harris business property, which property is in close proximity to the residence of Mr Mank and Ms Harris. I am not satisfied that the relationship was merely one of an employment relationship in the absence of any evidence from the applicant, and in circumstances where the Commissioner has been denied the opportunity to cross-examine him on this and other issues.

56. I place significant weight on the applicant’s association with Mr Mank, in particular, and to a lesser degree Ms Harris, in assessing risk to public safety.

Applicant’s history of resorting to violence

57. On 5 July 2019, the applicant was involved in an altercation where he punched another person in the face because he said the other person was ‘acting crazy and aggressive’. This is clearly an act of violence that I give moderate weight to. Again, it is unfortunate that the applicant did not appear to give evidence with respect to this incident. Without the Commissioner having the opportunity to cross-examine the applicant about this incident, I agree with her submissions that I should not accept the applicant’s submissions which seek to minimising the circumstances of the incident.

58. In determining whether the applicant is a fit and proper person to be trusted to have possession of firearms without danger to public safety or the police, the requirement is to consider the fitness and propriety of the applicant. This invites a consideration of his conduct and character. The overarching purpose of determining whether an applicant is a fit and proper person is the protection of the public. The basic test involves 3 things: honesty, knowledge of requirements and ability to comply. In Weckert v Commissioner of Police, NSW Police Force [2010] NSWADT 197, the Tribunal made an assessment as to the honesty of the applicant’s conduct, which led to a decision to affirm the Commissioner’s decision to revoke the applicant’s firearms licence. That reasoning, in the Commissioner’s submissions is apposite.

59. In conclusion the Commissioner submits that the correct and preferable decision is to affirm the decision under review.

My consideration

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

Public interest

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

Section 3 of the Firearms Act 1996 provides:

3 Principles and objects of Act

(1)   The underlying principles of this Act are:

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

(b)   to improve public safety:

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

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

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

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

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

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

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

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

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

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

66. In Laing v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 315, the Tribunal said, which I adopt:

[31]   In O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, [13], the High Court held that the “public interest” imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police, New South Wales Police Service v Toloeafoa [1999] NSWADTAP 9, [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms:

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

[32]   The concept does include standards acknowledged to be for “the good order of society and for the well-being of its members”: Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657, 681, the High Court said:

The purpose of the reference to public interest is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner’s consideration. The effect of the reference is to amplify the “scope and purpose” of the legislation.

[33]   The issue of public interest allows for matters going beyond the applicant’s character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, [33].

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

…

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

68. In Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that “In determining this issue it is my view that 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”. Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74]. The notion of “virtually no risk” should be taken into consideration with some caution.

69. The underlying principles of the Firearms Act stated in s 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. In Ward v Commissioner of Police, NSW Police Service at [28] the Deputy President said that in terms of public safety, ‘the Tribunal must be satisfied there is virtually no risk’.

70. Given my findings with respect to the applicant’s association with Mr Mank, I find that the factors related to public safety should be weighed against the applicant’s favour. The applicant moved his firearms into a safe at the Mank/Harris business property. He did so in circumstances where there is at least a possibility that Mr Mank knew where they were and how to access them. This is in circumstances where Mr Mank has a history of both self-harm and firearm related criminal activity. In the absence of any evidence from the applicant, and given having considered the documentary evidence before me, I have concerns that the applicant cannot exercise continuous and responsible control over firearms because of his way of living and domestic circumstances.

71. This is in my view not in the public interest. The applicant’s conduct in this regard does not further the principles set out in s 3 of the Firearms Act which include:

‘(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

…’

72. I therefore cannot be satisfied that there is ‘virtually no risk’ to public safety were the decision to be set aside.

Whether the applicant is a fit and proper person to hold a firearms licence

73. I accept the Commissioner’s submissions that the success of the firearms licensing regime is dependent on a person being a fit and proper person who can be trusted to have possession of firearms without danger to the public or to the peace. The Commissioner submits, which I accept, that the applicant is not possessed of ‘sufficient moral integrity and rectitude’, when using the language of the Appeal Panel in Austin v Commissioner of Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [58] so as to permit him to be safely trusted to use and possess firearms.

74. I accept and have found that the applicant has not been convicted of any criminal offences. However, that does not detract from his association with persons known to be involved in criminal activity, allegations of violent behaviour and a poor traffic record which demonstrate that the applicant lacks fitness and propriety to hold a firearms licence. I find that conduct in relation to traffic offences may indicate an inability to observe or have intentional disregard for legal regulations which are imposed for public safety. This indicates a lack of respect and regard for the applicant’s own safety and that of the public. The applicant’s extensive history of non-compliance with the licensing scheme for driving motor vehicles demonstrates a disregard for public safety.

75. I have also considered the applicant’s history of attacking another person who he perceived to be aggressive. Without any explanation from the applicant, I find that this demonstrates an inclination of him resorting to violence when threatened, rather than removing himself from possible harm.

76. Overall, taking into consideration all of the evidence, I am not satisfied that the applicant has demonstrated he is a fit and proper person to hold a firearms licence.

77. The public interest is only served where a person is fit and proper to hold a firearms licence. That involves a licensee, such as the applicant, furthering the principles in s 3 of the Firearms Act. I am not satisfied that the applicant has done so for the reasons set out above.

78. I am satisfied that the correct and preferable decision is to revoke the applicant’s firearms licence. The decision under review is affirmed.

79. In the circumstances I conclude there is a real and appreciable risk to the public should the applicant hold a firearms licence. It is not in the public interest for the applicant to continue to hold his firearms licence.

Orders

1. The decision under review is affirmed.

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

Registrar

Decision last updated: 31 October 2023