Kassem v Commissioner of Police

[2021] NSWCATAD 213

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Kassem v Commissioner of Police [2021] NSWCATAD 213

Hearing dates:

3 June 2021

Date of orders:

23 July 2021

Decision date:

23 July 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Naida Isenberg, Senior Member

Decision:

The decision under review is affirmed

Catchwords:

LICENSING- firearms – revocation - breach of licence conditions – participation requirements -public interest

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Cases Cited:

AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5

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

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16

Cook v Commissioner of Police [2003] NSWADT 30

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

Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31

Keane v Commissioner of Police, NSW Police[2008] NSWADT 68

Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218

Hook v Commissioner of Police [2020] NSWCATAD 250

Jameson v Commissioner of Polcie [2019] NSWCATAD 25

Lee v Commissioner of Police, NSW Police Force [2020] NSWCATAS 144

Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97

McDonald v Director General of Social Security (1984) 1FCR 353 at 357

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10

Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137

Prevetera v Commissioner of Police [2021] NSWCATAD 133

Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226

Vella v Commissioner of Police, New South Wales Police Service[2003] NSWADT 91

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

Wiltshire v Commissioner of Police [2005] NSWADT 75

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Walid Kassem (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
Hartmann & Associates, Solicitors (Applicant)
Maddocks (Respondent)

File Number(s):

2021/00021691

Publication restriction:

The publication of the evidence presented to the Tribunal in private session, and the publication of the confidential evidence and the confidential submissions filed by the Respondent is prohibited, pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013. The disclosure to the applicant of the material referred to in the order above, is prohibited, pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013.

REASONS FOR DECISION

1. The Applicant, Walid Kassem was first issued with a Category AB firearms licence in November 2013 for the genuine reasons of sport/target shooting and recreational hunting/vermin control. Shortly before his licence was due to expire, on 1 January 2019, the Applicant submitted a re-application from the Applicant and his licence was re-issued on 19 January 2019, to expire on 9 January 2024.

2. On 22 September 2019, the Applicant's firearms licence was suspended, and, on 15 October 2020, a decision was made to revoke his licence. After requesting an extension of time, the Applicant sought an internal review. As the Applicant was not notified of the outcome of the internal review within 21 days, the internal review was taken to be finalised on or about 7 January 2021: s 53(9)(b) of the Administrative Decisions Review Act 1997 (ADR Act). The Applicant now seeks review by this Tribunal.

Relevant legislation

3. The general principles of the Firearms Act 1996 (the Act) are set out in s 3 of the Act:

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

   ...

2. The objects of this Act are, relevantly, as follows:

   …

   (c)   to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm

   (d)   to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,

   …

   4. In relation to the genuine reason a person holds a firearms licence, s 12 of the Act provides as follows:

12 Genuine reasons for having a licence

...

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 or employee of the National Parks and Wildlife Service, the Department of Industry 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.

5. Section 7A(2) of the Firearms Act 1996 (the Act) provides that it is an offence to use a firearm other in connection with the “genuine reason” for possessing the firearms or if the person contravenes any condition of the Act. Section 24(2)(b)(ii) provides that a licence may be revoked if the licensee contravenes any provision of the Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention.

6. Section 19 of the Act provides that a licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose and to such other conditions as may be prescribed by the regulations.

7. Clause 29 of the Regulation provides that a licence that is issued for the genuine reason of sport/target shooting is subject to additional conditions, the licensee must comply with any applicable requirements of Part 10 (Participation requirements for club members). Clause 107 of the Regulation provides that the holder of a licence issued for the genuine reason of sport/target shooting (not being a category H licence) must be a member of at least one approved shooting club (other than a pistol club) and must, during each compliance period for such a club of which the person is a member, participate in not less than 4 shooting activities of an approved shooting club (other than a pistol club) whether or not of a club of which the person is a member.

8. Clause 31 of the Regulation provides that a licence that is issued for the genuine reason of recreational hunting/vermin control is subject to the condition that the licensee must comply with any applicable requirements of Part 10 (Participation requirements for club members). Clause 108(1) of the Regulation provides that the holder of a licence issued for the genuine reason of recreational hunting/vermin control to a member of an approved hunting club must be a member of at least one approved hunting club and must, during each compliance period for such a club of which the person is a member, participate in no less than 2 hunting club events. Clause 108(2) provides that cl 108 only applies where membership of an approved hunting club is the sole ground on which the licensee has established the genuine reason of recreational hunting/vermin control.

9. Section 24(2)(b)(ii) provides that a licence may be revoked if the licensee contravenes any provision of the Act or Regulation, whether the person has been convicted of an offence or not. Section 24(2)(b)(iii) provides that a licence may be revoked if the licensee contravenes any condition of the licence.

10. Section 24(2)(d) provides that a licence may be revoked for any other reason prescribed by the regulations. Clause 20 of the Firearms Regulation 2006 (Regulation) provides that 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.

Evidence

11. In addition to documents filed under s 58 of the ADR Act, I had before me confidential material filed pursuant to s 59 of the ADR Act. The Applicant is the subject of a number of Confidential Information Reports, and orders were previously made that pursuant to s 59 of the ADR Act the Respondent was not be required to lodge certain Confidential Material. Orders were also made prohibiting publication and disclosure of the Confidential Material and the Confidential Affidavit, or matters therein: s 64(1)(c) and (d) of the CAT Act. The publication and reporting of the hearing, including any evidence given during the hearing, was prohibited pursuant to s 64(1)(b) and s 64(1)(c) of the CAT Act.

12. The Applicant had provided the Respondent with detailed submissions and material in support of his request for internal review, and, at the hearing, relied on those submissions, which included a statement from the Applicant dated 12 December 2020. Character references were provided from Karrim Hallak dated 15 December 2020, Amer Eid dated 15 December 2020, and Mohomad Alameddine dated 14 December 2020.

13. On 27 April 2021, the Applicant also filed a document from the Victorian Game Licence Authority showing his licence history in that State.

Tribunal’s approach

14. Section 63 of the Administrative Decisions Review Act 1997 provides that in determining an application for review the Tribunal 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 the Tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shiv Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]- [34].

CONSIDERATION

What led to the revocation of the Applicant’s firearms licence?

15. On 15 October 2020, a decision was made to revoke the Applicant's firearms licence on the basis of his failure to comply with participation requirements. The Respondent contended that the Applicant had allowed his club membership to lapse between October 2017 and January 2018 and that his membership had expired on 31 January 2020. He also failed to attend the minimum required number of shooting activities/hunting club events. This raised concerns about his suitability to hold a firearms licence.

16. In summary, it was contended that the Applicant had contravened provisions of the Act and Regulation regarding participation requirements, and had also failed to comply with conditions of his firearms licence. Further, it was contended that the Applicant had come to the adverse attention of Police in 2010 and 2013. As a consequence, it was submitted, it was not in the public interest for the Applicant to continue to hold a firearms licence.

Contravention of the Act and failure to comply with licence conditions

17. Section 7A of the Act provides that contravention of a condition of a licence is an offence. Under s 19 of the Act, the Commissioner has broad powers to issue a licence subject to conditions, and such other conditions as may be prescribed by the Regulation. A number of provisions in the Regulation concern requirements of licence holders as a result of the genuine reasons relied upon to justify obtaining a firearms licence. For the genuine reason of sport/target shooting, cl 29(a) provides that such a licence is subject to the condition that the licensee must comply with any applicable requirements of Part 10 in relation to participation requirements for club members. Similarly, for the genuine reason of recreational hunting/vermin control, cl 31 provides that such a licence is subject to the condition that the licensee must comply with any applicable requirements of Part 10.

18. The participation requirements under Part 10 of the Regulation relevantly include that the holder of a licence issued for the genuine reason of sport/target shooting must be a member of at least one approved shooting club and must, during each compliance period for such a club of which the person is a member, participate in not less than 4 shooting activities of an approved shooting club: cl 107. Similarly, cl 108(1) provides that the holder of a licence issued for the genuine reason of recreational hunting/vermin control to a member of an approved hunting club must be a member of at least one approved hunting club and must, during each compliance period for such a club of which the person is a member, participate in no less than 2 hunting club events.

19. 'Compliance period' for an approved club means each consecutive 12-month period that starts on the day of the year that the club has determined to be the start of its compliance period for the purposes of participation by club members: cl 105 of the Regulation.

20. When the Applicant's licence application was made in 2013, the sole ground on which he established the genuine reasons of sport/target shooting and recreational hunting/vermin control was membership of the Sporting Shooters Association of Australia (SSAA). In his re-application dated 1 January 2019 he was not obliged to again specify his genuine reason, but the form contains a declaration that the Applicant could satisfy the legislative requirements and produce evidence of his genuine reasons. I accept that, by the ‘re-application’ he sought a continuation of his licence on the same basis as before.

21. Records of the SSAA were provided in the s 58 documents. That organisation’s compliance year is from 1 April to 31 March the following year. According to the records the Applicant had become a member on 19 September 2013 and his membership expired on 30 September 2017. He rejoined on 8 January 2018, which membership expired on 31 January 2020. According to the records the Applicant failed to comply with minimum attendance requirements in the following compliance periods: 2016/7, 2017/18, 2018/19, and 2019/20. In particular, the Applicant failed to participate in at least 4 target attendances: cl 107 of the Regulation, and failed to participate in at least 2 hunting club events: cl 108 of the Regulation.

22. The Applicant admitted in his statement of 15 October 2020 that he had not participated in 4 shooting activities and 2 hunting activities per year from April 20172. He noted that “over the years” he had gone “far and beyond the recommended shooting/hunting activities”. In this regard I observe that the SSAA records note his target participation in 2014/15 and 2015/16 was 12 and 7 shoots, respectively; his hunting in the same periods was recorded as 14 and 6, respectively. However, there is no provision for any averaging process of participation. Consequently, the fact that, during some compliance periods the Applicant had enthusiastically engaged in shooting and hunting activities, does not detract from his failure to meet his obligations in all periods.

23. Messrs Hallak, Eid and Alameddine in their references all wrote of going on many hunting trips the Applicant, including hunting on a number of properties. Mr Hallak also mentioned that the Applicant had been shooting on his land on 6-8 occasions between December 2018 until the Applicant’s licence was suspended in September 2019. What was written in the reference was not couched as an express permission to shoot on his land, and the Applicant did not provide such a document to the Firearms Registry to support his genuine reason of recreational hunting/vermin control. It was unclear if the Applicant had informed the Firearms Registry to this effect but certainly no evidence was available that he had done so. I was informed by the Respondent’s representative that, had he done so, he would not be considered to be in breach of cl 108 from the date that written permission is provided. It remains though, that he could not satisfy cl 107 in relation to sport/target shooting.

24. I am satisfied that the Applicant has contravened s 7A(2)(b) of the Act, by contravening a condition of his licence by his failure to participate in target attendances and hunting club events as specified, and this constitutes an offence. No charge was laid against the Applicant. However, a licensee need not be convicted of any offence for a contravention to be found: Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31 at [62] – [64].

25. In applying s 24(2)(b)(ii) of the Act, the Tribunal said in Lynch v the Commissioner of Police that:

[the fact that an individual] escaped a criminal conviction does not mean that he should therefore automatically escape an administrative sanction against his licence. It is necessary for an administrator to take a stand in dealing with serious contraventions that is seen as credible by the broader community, and sends the appropriate signal to licence-holders as to what is unacceptable.

26. The Applicant’s solicitor referred me to Yaghi v Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 (Yaghi) where there had been breaches of the safe storage requirements, the Tribunal said, at [32]

1. As the Parliament has not chosen to make mandatory the power to revoke the licence in circumstances such as Mr Yaghi's, but rather has provided the Commissioner with a discretionary power, it is reasonable to conclude that not all contraventions or breaches warrant the exercise of the power to revoke. There must be something more to be taken into account. It is suggested in another Tribunal decision concerning the Act that there may be a trivial or excusable contravention or breach which may not warrant the exercise of the discretion against a licensee, whereas a fundamental breach may (see Cusumano v. Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 at para 25).

   27. In my view Yaghi does no more than re-iterate the discretion given to the Respondent, and the Tribunal on review.

   28. In Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226 Hennessey DP said that if the breaches of the Act or Regulation are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety.

   29. In Bevan v Commissioner of Police [2004] NSWADT 1, the Tribunal stated at [26]:

... Parliament has given a clear indication that the Commissioner is to revoke or refuse a licence, unless the Commissioner is satisfied that the contravention was merely a technical breach, the conduct posed no risk to public safety and there was no evidence that the licence holder or applicant for a licence would in future engage in conduct that posed a risk to public safety(see s3(1)(a) of the Act). (Tribunal’s emphasis)

30. The Applicant's contravention in the present matter was not merely a “technical” breach; the Act sets out clear obligations and the Applicant has failed to comply with those obligations over a period of several years. His failure to comply cannot be disregarded as an oversight.

31. The Tribunal, in determining the review, however, must exercise its discretion in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23]. The underlying principles set out in s 3(1) of the Act 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: Keane v Commissioner of Police, NSW Police [2008] NSWADT 68 at [44].

32. The Applicant wrote in his statement of his “need” to hold a firearms licence because he said he had recently purchased a rural property which he intended would become his primary source of income. In submissions it was said that the property is about 100 acres south of Oberon in the central west. There was no further information available about whether he would become a primary producer. At no stage has the Applicant attempted to notify the Respondent of any changes to his genuine reasons as required by cl 15 of the Regulation; it was submitted on the Applicant's behalf that if he succeeds in his review application, he would include primary production as a genuine reason and delete sport/target shooting.

33. In Kingston v Commissioner of Police, NSW Police Force [2018] NSWCATAD 51, Ludlow SM found that the applicant had breached the condition relating to his genuine reason for holding a licence and participation requirements under the Act. In that case, the applicant could have also relied on occupying or owning land to support the genuine reason of recreational hunting/vermin control, so the discretion to revoke the applicant's licence on that basis was not exercised. In this matter though, the evidence was that the Applicant’s acquisition of the property is only relatively recent.

34. The Applicant's solicitor relied on Garder v Commissioner of Police, NSW Police Force [2018] NSWCATAD 199, where, Ludlow SM exercised the Tribunal’s discretion in the applicant’s favour notwithstanding the applicant had breached participation requirements. In that matter though, the applicant had only held a firearms licence for eight months before it was suspended, did not own a firearm and had failed to comply for a short period. Here, the Applicant who has held a firearms licence since 2013, owned several firearms, and the period of his non-compliance extended over a number of years. As the Applicant had previously complied with the participation requirements in the 2014/2015 and 2015/2016 compliance periods, I consider he was likely to be aware of the responsibilities attached to his licence. In his statement dated 15 October 2020 in support of his internal review application, the Applicant explained that his reason for not complying in 2017/2018 was that he did a lot of international and local travel, his fourth child was born which took a large toll on the whole family, and work was extremely busy not allowing much free time for himself. I accept that the Applicant may have been distracted, but nonetheless a licence attracts responsibilities that are ongoing irrespective of one’s personal circumstances.

35. I observe that the reference provided by Mr Hallak refers to he and the Applicant travelling "a fair bit together throughout 2017/2018, exploring many forests in Victoria using our Victorian Game Licence", which is somewhat inconsistent with the Applicant's contention that he was "busy" or that travelling to comply with requirements was an “impossible ordeal”.

The Applicant has come to the attention of Police: 2010

36. According to Police information, on 24 December 2010, the Applicant was identified as the driver of a vehicle which was stopped by Police 60kms south of Nyngan on the Mitchell Highway for travelling well below the signposted speed limit. Rear passengers were observed by Police to be standing within the vehicle and others had arms protruding from the vehicle.

37. When Police spoke to the Applicant, he was observed to be nervous and his hands were shaking. On the dash of the vehicle, Police reported seeing two hunting arrows which were covered by newspapers. The two arrows were located and seized. All occupants denied knowledge or ownership of the arrows.

38. The Applicant was questioned in relation to the location he was coming from and stated that he and the group had been on a religious pilgrimage from Auburn to Broken Hill, Cobar and Nyngan. When questioned about the locations at which the group had stayed, the Applicant stated a number of motels along the route, however he was unable to provide details. Further, Police noted that on the floor of the van in the rear compartment there appeared to be a number of rolled up tents and camping equipment, which appeared to contradict the Applicant's version that they had been staying at motels.

39. When Police asked the Applicant if there were any weapons in the vehicle or anything of a prohibited nature, the front passenger was seen to move two newspapers over the arrows. Due to this behaviour and the Applicant's nervous demeanour, Police decided to search the vehicle, which revealed an "enormous" amount of professional camping equipment and a toy machine gun.

40. [NOT FOR PUBLICATION]

41. [NOT FOR PUBLICATION]

42. [NOT FOR PUBLICATION]

43. [NOT FOR PUBLICATION]

44. [NOT FOR PUBLICATION]

The Applicant has come to the attention of Police: 2013

45. On 18 March 2013, the Applicant was issued with a caution by Sydney Water Police for fishing near Cabarita without a fishing licence. The Applicant claimed to be unaware of his obligation to have a licence and he was cautioned. While there was a clear obligation to have a licence I do not regard his failure to do so to be, of itself, of great significance and I give this transgression little weight. Having said that though, the conduct further demonstrates the Applicant’s preparedness to disregard his statutory obligations.

Is it contrary to the public interest for the applicant to continue to hold a firearms licence?: s 24(2)(d) of the Act and cl 20 of the Regulation

46. Section 24(2)(d) of the Act provides that a licence may be revoked for any reason prescribed by the Regulation. Clause 20 of the Regulation provides that 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.

47. The expression “public interest” is not defined in the Act. A decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the ‘public interest' is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. The “public interest” factor allows a consideration of issues going beyond the character of the applicant to be taken into account. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].

48. In his statement dated 15 October 2020 the Applicant wrote that that he has never been in trouble with the law, and that he had a clear record other than a speeding ticket. He wrote of compliance when a (safe storage) spot check was undertaken by Police. He also wrote of his “need” to hold a firearms licence because he said he had recently purchased a rural property which he intended would become his primary source of income. Private interests, however, are not the only matters taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657 at 681. 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 at [33]. The concept includes 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] VicRp 6; (1991) 1 VR 63.

49. The Tribunal has referred many times to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) where Hennessy DP at [28] said that in terms of public safety, “the Tribunal must be satisfied that there is virtually no risk”, while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] – [66].

50. The principle in Ward is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. Since Ward, Hennessy DP has cautioned against applying that language in a mechanistic way: see AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].

51. The underlying principles stated in s 3(1) of the Act 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. These controls include the requirement that a licensee comply with his or her obligations in relation to participation and also comply with the conditions of a licence. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 [at 23]. In considering whether an applicant should retain a firearms licence, the question is whether there is in all the circumstances a real and appreciable risk to the public. Where there is the possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Lee v Commissioner of Police [2020] NSWCATAD 144 at [94].

52. The Applicant has contravened a number of provisions of the Act and the Regulation, as well as conditions of his licence, by failing to comply with the participation requirements in clauses 107 and 108 of the Regulation. It was submitted on the Applicant’s behalf that it was an “unintended breach”. The public interest requires, however, that licensees be aware of, and comply with, the legislative requirements for holding a licence: Vella v Commissioner of Police, New South Wales Police Service [2003] NSWADT 91 at [4], and Cook v Commissioner of Police [2003] NSWADT 30 at [34]. Responsibilities of 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: Wiltshire v Commissioner of Police [2005] NSWADT 75 at [25].

53. In Todorovski v Commissioner of Police [2019] NSWCATAD 192 at [130], the Tribunal found that disregarding the requirement to support a genuine reason, particularly for a number of years, was not in the public interest. The Tribunal noted that:

...the admitted total disregard of the requirement over a period of five years in that case was a substantial dereliction that could not be overlooked. In those circumstances it cannot be in the public interest for the license to continue to hold the licence.

54. The Respondent submitted that that three members of the Applicant's family who held firearms licences had also failed to comply with the participation requirements. Also, that on 13 January 2021, the Applicant's brother was charged with an offence under s 70 of the Act, for making a statement that he knew to be false in a material particular in an application under the Act, by certifying that he could "satisfy the legislative requirements and produce evidence of [his] genuine reasons as specified within this application. I have disregarded the evidence in relation to the Applicant’s relatives; there was no evidence whatsoever that their conduct was relevant to that of the Applicant.

55. I accept that the Applicant came to the adverse attention of Police in 2010, when he was the driver of a vehicle that was stopped by Police for travelling slowly, and that he appeared nervous, was shaking and he potentially provided Police with inaccurate information. Although the Applicant was not charged with any offence it is inconsistent with the Applicant's claim in his statement that he "has never been in trouble with the law".

56. The Applicant’s solicitor referred me to the recent matter of Prevetera v Commissioner of Police [2021] NSWCATAD 133 in which the decision under review was set aside notwithstanding a breach by the Applicant of his obligations under cl 111 of the Regulation in relation to notification about membership of more than one club. It was also submitted on the Applicant’s behalf that his statement demonstrated that he was remorseful. His solicitor referred to Jameson v Commissioner of Police [2019] NSWCATAD 25 and Hook v Commissioner of Police [2020] NSWCATAD 250 in which the Tribunal’s discretion was exercised in favour of each applicant where there was remorse and a low likelihood of re-offending.

57. Each matter turns on its own facts. I am not prepared, in this matter, to accept that the Applicant’s contrition overcomes his disregard for the regulatory scheme.

58. A firearms licence is a privilege, not a right, and the enjoyment of that privilege is conditional upon the overriding need to ensure public safety. In considering whether an applicant should be afforded the privilege to hold a firearms licence, the Tribunal has held that where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm.

59. The Tribunal is required to look at the Applicant's conduct as a whole. Having regard to the Applicant's ongoing contraventions of the Act and conditions of his licence concerning participation requirements, and to a lesser extent, the information provided confidentially, I cannot be satisfied that the discretion should be exercised in the Applicant’s favour. In my view it would be contrary to the public interest for the Applicant to have a firearms licence.

DECISION

1. The decision under review is 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: 23 July 2021