Katelaris v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 71

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Katelaris v Commissioner of Police, NSW Police Force [2023] NSWCATAD 71

Hearing dates:

7 September 2022

Date of orders:

24 March 2023

Decision date:

24 March 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW – firearms licence – refusal - whether holding firearms licence contrary to the public interest – fit and proper person

Legislation Cited:

Administrative Decisions Review Act 1997

Children and Young Persons Care and Protection Act 1998

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Cases Cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Blayden v Commissioner of Police, NSW Police Force [2015] NSWCATAD 240

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

Constantin v Commissioner of Police [2013] NSWADTAP 16

Cusumano v Commissioner of Police [2001] NSWADT 50

Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65

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

Huckel v Commissioner of Police, New South Wales Police Force [2008] NSWADT 347

Khan v Commissioner of Police [2022] NSWCATAD 20

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

Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206

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

O’Brien v Commissioner of Police [2022] NSWCATAD 259

Principal registrar, Supreme Court of New South Wales v Katelaris [2001] NSWSC 724

Prothonotary of the Supreme Court of NSW v Katelaris [2008] NSWSC 389

Prothonotary of the Supreme Court of NSW v Katelaris (No 2) [2008] NSWSC 702

Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184

Ward v Commissioner of Police [2000] NSWADT 28

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

Category:

Principal judgment

Parties:

Andrew Katelaris (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Applicant (self-represented)
Bartier Perry (Respondent)

File Number(s):

2021/00365675

Publication restriction:

(1) Pursuant to s 49 of the Civil and Administrative Tribunal Act 2013, the hearing is conducted, insofar as it relates to the Confidential Material, in the absence of the Applicant, any legal representative for the Applicant and the public.

(2) Pursuant to s 59 of the Administrative Decision Review Act 1997, the Respondent is not required to lodge copies of the documents, that being the Confidential Material with the Tribunal in accordance with the s 58 of the Administrative Decision Review Act 1997.

(3) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication of the Confidential Material is prohibited.

(4) Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the disclosure of the Confidential Material, is restricted to the Respondent, the legal representatives for the Respondent and the Tribunal; and.

(5) Pursuant to s 64(1)(b) and s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication and reporting of the private hearing of this application, including any evidence given is prohibited.

REASONS FOR DECISION

1. This is an application by Mr Andrew Katelaris (“the Applicant”) for review of a decision by a delegate of the Commissioner of Police, NSW Police Force (“the Commissioner” or “the Respondent”). The delegate’s decision was to refuse the Applicant’s application for a category A firearms licence under the Firearms Act 1996 (“the Firearms Act”).

2. The decision was not subject to an internal review. However, an Order was made by this Tribunal on 15 February 2022 dispensing with the requirement for an internal review pursuant to s55(6) of the Administrative Decisions Review Act 1997 (ADR Act).

3. The reasons for the refusal stated that the delegate considered that it was not in the public interest for the Applicant to hold a firearms licence because of prior criminal history and conduct.

Issues for determination

4. The Tribunal is to determine whether the correct and preferable decision is to refuse the Applicant’s firearms licence application.

5. This determination requires consideration of whether it would be contrary to the public interest for the Applicant to hold a firearms licence. Also, whether the Applicant is a fit and proper person to hold a firearms licence.

Applicable legislation

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

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

8. The Firearms Act sets up a scheme to license people to possess and use firearms. One of the underlying principles of the Firearms Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms. Section 3(1) provides:

(1) The underlying principles of this Act are:

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

(b) to improve public safety:

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

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

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

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

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

10. Section 11(3)(a) of the Firearms Act prescribes that a firearms licence must not be issues 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.

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

Fit and proper person

12. The Commissioner must not issue a firearms licence to the Applicant unless 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”: s 11(3)(a) of the Firearms Act.

13. It is clear from those provisions that being a fit and proper person is a central consideration in the firearms licensing regime.

14. In discussing the meaning of the expression “fit and proper person”, Toohey and Gaudron JJ said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321:

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.

15. Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence (see - Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184).

16. Public interest considerations play a role in the assessment of fitness and propriety (see - Director-General, Transport New South Wales v AIC(GD) [2011] NSWADTAP 65 at [37]) and Smith at [30]).

17. In the context of the Firearms Act, fitness and propriety “must be considered in the context of at all times ensuring public safety” (see - Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at [22]).

The public interest

18. The term “the public interest” has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court stated at 681:

“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 Commission's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.”

19. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at paragraph [33] the Appeal Panel said that:

“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.”

20. In Cusumano v Commissioner of Police [2001] NSWADT 50 at paragraph [23] Deputy President Hennessy stated:

“There is no guidance in the legislation in relation to how these discretions [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.”

21. This approach has been applied consistently in matters where the reviewable decision is to refuse to grant a licence. That is, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.

22. Section 3 of the Firearms Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community’s interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at paragraphs [27] – [28] Deputy President Hennessy said that in terms of public safety:

“27 …The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward 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.”

23. Ward v Commissioner of Police dealt with the issues of whether the applicant was a “fit and proper person” to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at paragraphs [130] – [134].

24. The question of risk is not, however, to be approached in an absolute or mechanistic way, 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 paragraphs [64] – [66].

25. In determining these issues, 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 considered. Minimal, fanciful, or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at paragraph [32].

26. The Respondent has lodged a bundle of documents pursuant to section 58 of the ADR Act. Section 58(1)(b) of the ADR Act requires the administrator whose decision is the subject of an application for review to lodge with the Tribunal, within 28 days after receiving notice of the application, a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application to the Tribunal.

27. The Respondent applied to the Tribunal for an order under section 59(1) of the ADR Act that it not be required to lodge a copy of certain documents (“the Confidential Material”) with the Tribunal and for orders under sections 49 and 64 of the Civil and Administrative Tribunal Act 2013 (“the NCAT Act”).

28. The Tribunal made the orders under section 59 of the ADR Act and section 64 of the NCAT Act in relation to the Confidential Material. As a consequence, the Respondent was not required to lodge some material on which the Commissioner relies, and the Applicant has not been given a copy of that material. Some of the Confidential Material has been admitted into evidence in the substantive matter and I have taken that material into account.

The material before the Tribunal

29. As noted, the Respondent relies on a bundle of material filed pursuant to section 58 of the ADR Act (“the section 58 documents”) and annexures A and B to the written submissions. This material includes a number of records held in the Respondent's electronic database ("COPs"). The Respondent relies on records showing the Applicant’s criminal history and traffic record. The Respondent also relies on open and confidential statements provided by Senior Constable Kylie Owen dated 29 March 2022 and Senior Constable Owens annexed additional material to her confidential statement and the Applicant has not had access to that material. The Applicant has also not had access to a further confidential statement contained in the Confidential Material.

30. The Respondent’s solicitors provided written submissions in an open and confidential form.

31. The Applicant relies on his application and annexed documents. He also tendered emails of 6 April 2022, 2 August 2022, 1 September 2022 and 2 September 2022. He provided his own statement which is recorded in the emails dated 2 August and 6 April 2022. The Applicant relied on an ABC documentary in which he provided a link “Billion Dollar Crop” in his email dated 2 September 2022. The Applicant and the Respondents solicitor made oral submissions at the hearing.

The Respondent’s case

32. As noted above, the Applicant has applied for a category A firearms licence. He has applied to the Tribunal for external review of the refusal of that application. The Respondent relies on the section 58 documents and the Confidential Material. This includes a number of records held in COPs.

33. The Respondent contends that the Applicant's criminal and traffic history raises serious concerns about his ability and intention to abide by the law. Also, the Applicant’s defiance of professional regulatory obligations, his lack of candour, conduct and his associations, are incompatible with the privilege of holding a firearm licence.

Criminal history

34. The Applicant has the following criminal offences recorded against him. I have included the outcome of each offence, some of which it is noted were dismissed, withdrawn, or had a verdict of not guilty returned:

20 March 1992 – possess prohibited drug (fined $500 plus court costs) – appealed and dismissed s 556A

21 January 2002 – possess prohibited firearm, not keep safety – dismissed no prima facie case

27 January 2005 – supply prohibited drug commercial quantity and supply prohibited drug to child – withdrawn

27 January 2005 – cultivate prohibited plant (convicted 3 year bond)

8 June 2005 – possess prohibited drug (fined $300 plus court costs appealed conviction quashed)

11 May 2006 – possess prohibited drug (fined $300 plus court costs appealed conviction confirmed)

2 May 2010 – Resist or hinder police officer in the execution of duty (fined $350 plus court costs appealed conviction quashed)

2 May 2010 – Refusal to comply with direction (fined $200 appealed conviction quashed)

2 May 2010 – Resists officer in execution of duty (fined $350 - appealed conviction confirmed)

2 May 2010 – Assault officer in execution of duty (dismissed)

25 April 2012 – Resist officer in execution of duty x 2 and fail to comply with a direction (withdrawn and dismissed)

30 May 2017 – Various supply cannabis, indictable and large commercial quantity, manufacture prohibited drug, deal with property proceeds of crime (not guilty by verdict)

21 December 2017 – recklessly contravene non-publication order x 2 (withdrawn)

21 December 2017 – unlawfully broadcast/publish name of child x 2 (pending)

13 April 2018 – Possess prohibited drug supply cannabis commercial quantity (withdrawn)

12 May 2018 – Drive vehicle, illicit drug present in blood (conditional release order 9 months from 26.9.2018 to 25.6.2019)

35. I note of all of the above offences, the Applicant was convicted in three matters, some even after an appeal. The 12 May 2018 offence and two drug offences are serious and cumulatively attract significant weight. I note the 21 December 2017 remained pending at the time of hearing. I have cautiously given no weight to this offence given it remains to be determined. Similarly, I have considered the remaining offences in terms of the charges being withdrawn, dismissed of the Applicant having been found not guilty.

36. In relation to his criminal record, the Applicant’s evidence was that he has been an advocate for the use of cannabis. He contends that many of the charges relate to his activism in this area and they have been defeated at trial or on appeal.

Traffic history

37. The Applicant has the following traffic offences recorded against him:

29-11-2021 WYONG Court 19-02-2021 NOT GIVE PARTICULARS

AFTER CRASH - $400

04-06-2017 DISOBEY TRAFFIC LIGHTS EO - $433

28-12-2016 EXCEED SPEED LIMIT BY NOT MORE THAN 10 KM/H WHILST DRIVING A MOTOR VEHICLE (CAMERA DETECTED) Double demerit points provisions. - $114

14-01-2016 EXCEED SPEED LIMIT BY MORE THAN 10KM H BUT NOT MORE THAN 20 KM H WHILST DRIVING A MOTOR VEHICLE - $260

06-10-2013 EXCEED SPEED LIMIT BY NOT MORE THAN 10 KM/H WHILST DRIVING A MOTOR VEHICLE (CAMERA DETECTED) Double demerit points provisions - $106

15-07-2008 DUNGOG Court 02-01-2008 USE UNREGISTERED MOTOR VEHICLE - $300

21-01-2005 NOT KEEP LEFT OF DIVIDING LINE Double demerit points provisions - $173

14-11-2002 Demerit Points Suspension of Unrestricted (Class C) and Unrestricted (Class R) to commence on 19-12-2002 until 19-03-2003 inclusive, for the offence (s) of 27-09-2002, 22-03-2002, 26-05-2001, 06-11-2000,

27-09-2002 NOT KEEP LEFT - $123

15-08-2002 HORNSBY Court 22-03-2002 NEGLIGENT DRIVING - $100

26-05-2001 EXCEED SPEED LIMIT BY MORE THAN 15 KM/H BUT NOT MORE THAN 30 KM/H WHILST DRIVING A MOTOR VEHICLE - $184

06-11-2000 EXCEED SPEED LIMIT BY NOT MORE THAN 15 KM H WHILST DRIVING A MOTOR VEHICLE (CAMERA DETECTED) - $115

28-03-2000 EXCEED SPEED LIMIT BY MORE THAN 15 KM/H BUT NOT MORE THAN 30 KM/H WHILST DRIVING A MOTOR VEHICLE - $181

26-01-1999 EXCEED SPEED LIMIT BY NOT MORE THAN 15 KM/H WHILST DRIVING A MOTOR VEHICLE - $112

21-12-1998 EXCEED SPEED LIMIT BY NOT MORE THAN 15 KM/H WHILST DRIVING A MOTOR VEHICLE (CAMERA DETECTED) - $112

05-04-1997 EXCEED SPEED LIMIT BY MORE THAN 15 KM/H BUT NOT MORE THAN 30 KM H WHILST DRIVING A MOTOR VEHICLE - $174

28-03-1997 DISOBEY TRAFFIC LIGHTS -CAMERA DETECTED - $195

17-03-1995 EXCEED SPEED LIMIT BY NOT MORE THAN 15 KM/H WHILST DRIVING A MOTOR VEHICLE - $99

01-10-1989 DISOBEY TRAFFIC LIGHTS -CAMERA DETECTED - $135

27-04-1989 EXCEED SPEED LIMIT BY MORE THAN 15 KM/H BUT NOT MORE THAN 30 KM/H - $120

11-07-1988 EXCEED SPEED LIMIT BY MORE THAN 30 KM H - $150

25-01-1987 EXCEED SPEED LIMIT BY MORE THAN 30 KM/H - $100

27-04-1986 EXCEED SPEED LIMIT BY MORE THAN 15 KM/H BUT NOT MORE THAN 30 KM/H - $80

16-09-1983 EXCEED SPEED LIMIT BY MORE THAN 15 KM/H BUT NOT MORE THAN 30 KM/H - $80

07-01-1983 EXCEED SPEED LIMIT BY MORE THAN 15

KM/H BUT NOT MORE THAN 30 KM/H - $60

05-12-1982 EXCEED SPEED LIMIT BY MORE THAN 15

KM/H BUT NOT MORE THAN 30 KM H- $60

20-08-1982 EXCEED SPEED LIMIT BY MORE THAN 30 - $80

38. The Respondent contends that the Applicant's traffic history is deplorable and demonstrates a lack of regard for public safety by not adhering to road rules and placing others in the community at risk.

39. The Respondent submits that following further factors are relevant when deciding whether the Applicant ought to be granted a firearms licence:

1. The Applicant having has his firearms licence revoked in 2002 and 2007.

2. The Applicant’s failure to store his firearms safely in 2002.

3. The applicants deregistration as a medical practitioner in 2005 for inappropriate practices in prescribing drugs of addiction, breaches of conditions on his registration and inappropriate supply of cannabis to various people.

4. The Applicant’s contempt findings in 2008 made by the Supreme Court following abuse towards jurors (and an earlier contempt finding in 2001).

5. The 2015 complaint by the NSW Chief Health Officer, and the 2016 decision of the HCCC relating to the Applicant’s “unsafe and unethical conduct” in providing treatment as an unregistered health practitioner to two women and subsequent dishonesty and lack of care.

6. The Applicant’s failure in 2021 to comply with COVID-19 public health orders in not scanning into premises and wearing a mask.

7. The Applicant’s dishonesty in completing his firearms licence application form in 2021.

8. The Applicant’s association with the Church of Ubuntu, the Ubuntu Wellness Clinic and Mr Paul Burton.

[NOT FOR PUBLICATION]

40. [NOT FOR PUBLICATION]

41. [NOT FOR PUBLICATION]

42. [NOT FOR PUBLICATION]

43. [NOT FOR PUBLICATION]

44. [NOT FOR PUBLICATION]

45. [NOT FOR PUBLICATION]

46. [NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

47. [NOT FOR PUBLICATION]

48. The Respondent submits that in the circumstances it is not in the public interest that the Applicant holds a firearms licence. Based on all of the above matters, it is submitted that the correct and preferable decision is to affirm the decision to refuse the Applicant’s licence application.

The Applicant’s case

49. The Applicant provided a statement dated 2 August 2022  in which he addressed some of the issues that the Respondent has raised.

50. The Applicant said he has pioneered the use cannabinoids produced in cannabis plants CBD and THC and combinations of them in the treatment of children with intractable epilepsy. In 2017, after appearing in a television report featuring such treatment of a young epilepsy sufferer, his house was raided by police officers. He was charged with large commercial supply of Cannabis oil and spent six months in remand prisons before obtaining bail in the Court of Appeal. Following a jury trial a verdict of not guilty was returned on all charges. The Applicant submits this should not be used against him in assessing whether he is a risk to the public in having a firearms licence. He said “I say with pride that I have devoted my professional life to the advancement of patient welfare and have witnessed gratifying success in the areas of epilepsy, chronic pain, PTSD and more. The fact that I had to repeatedly perform acts of civil disobedience against an ill founded and draconian Cannabis prohibition, cannot and should not be used to impugn my good character. Due to my activism over thirty years there have been changes to three laws relating to industrial hemp and cannabis for nutritional and medical uses.”

51. The Applicant contends that the Tribunal should not have any concerns about people he has a close domestic relationship. He submits that on the open material before the Tribunal there is no evidence of close personal associates who have extensive criminal histories.

52. In relation to the offences relating to disclosing the name of any child involved in Children’s Court proceedings, he submits:

“For completeness I must inform the Tribunal that myself and Pastor Paul Burton are the first two people in NSW to be charged under Section 105 of the Children and Young Persons Care and Protection Act. This draconian legislation is a strict liability offence against mentioning the name of any child who has been, is currently or is reasonably likely to be involved in a Children's Court proceeding. The matter has been afoot now for over four years and began when twenty two police officers assisted two then FACS workers removed a severely afflicted child from his family at our clinic in Newcastle, where he had been receiving nutritional and Cannabis therapy with obvious benefit. When the mother refused to relinquish the child she was handcuffed to a chair and assaulted with pepper spray to the face. When supporters went to her assistance they were also assaulted. These things I have witnessed being done by the same organisation that is claiming that me having a firearms licence to enjoy club shooting would be a risk to the public! Our criminal prosecution has been stayed pending the outcome of a Constitutional challenge, which is currently awaiting judgement before the Court of Appeal.”

53. The Applicant maintains that a significant proportion of the COPs entries are “untrue, exaggerated or out of context”. He submits the Tribunal should not place any or any significant weight on those entries, which I have not. Particularly where some of the information may be included in the confidential material which the Applicant has not seen.

54. The Applicant has since his thirteenth birthday used firearms, mainly for sport, target shooting and some feral animal control. He was a registered medical doctor until his name was removed from the role of medical practitioners in 2005.

55. In relation to the traffic offences the Applicant said that he is not proud of his driving record. He contends that the majority of his offending relates to many years ago when he was “driving tens of thousands of kilometres” each year. He said that all the speeding offences were 15km or under, which the Applicant described as being “very low”. I do not accept this latter submission. It is evident looking at the traffic history above, at least eleven of the eighteen speeding offences were for a range above 15km and three for exceeding 30km above the speed limit. This speed can hardly be described as very low.

56. The incident on 29 November 2021, not give particulars after crash, the Applicant said involved a minor collision when he was reversing out of a petrol station on the way to see his mother who had been admitted to the intensive care unit in Hospital. He said his bumper bar caught the foot peg of a motorbike. He picked up the motor bike and placed it onto the stand, with the knowledge that the service station had CCTV.

57. It should be noted that the Applicant opposes the Tribunal considering any of the Confidential Material which he has not been able to access. In particular, any material which relates to concerns the Respondent may have with regard to his domestic circumstances and to persons he has a close association with who have extensive criminal histories.

58. He submitted that he does not need to establish his good character and has therefore not produced any character references, notwithstanding that he could have obtained such a reference.

59. He contends that the Tribunal should find that there is no risk to the public if the Applicant has access to firearms.

Discussion

60. This is a matter which concerns the public interest and specifically whether the Applicant is a fit and proper person and if it is not in the public interest for the Applicant to hold a firearms licence.

61. The Respondent has raised a number of issues of concern. I have considered each of those issues and I have formed the view that the decision under review should be affirmed.

Public interest

62. The Applicant has for many years shown a pattern of disregard for the law, disregard for safety and for others. His explanation of his conduct as being “civil disobedience” is rejected. The Applicant has an moderate criminal and extensive traffic history. His disregard for court processes and the two findings of the Supreme Court of contempt (Principal registrar, Supreme Court of New South Wales v Katelaris [2001] NSWSC 724 and Prothonotary of the Supreme Court of NSW v Katelaris [2008] NSWSC 389; Prothonotary of the Supreme Court of NSW v Katelaris (No 2) [2008] NSWSC 702) are significant. A conviction of contempt is an extremely serious matter, one which casts doubt on the Applicant’s respect for the law and whether he will comply with it in the future. More recent comments by the Applicant relating to the yet to be determined prosecution under s 105 of the Children and Young Persons Care and Protection Act 1998 (“Care Act”) are reflective of his current attitude see [52] above. His comments do not instil any confidence that he will comply with a law in which he disagrees with. There is a significant difference between an advocate for law reform and one who contravenes the law. In many instances the Applicant falls within the latter.

63. Similarly, the Applicant has a long history of non-compliance with professional obligations expected of him as a then registered health practitioner. In 2005, the Applicant was deregistered as a health practitioner for, inter alia, falling to comply with conditions on his registration. In 2016, the HCCC found the Applicant to have engaged in ‘unsafe and unethical’ conduct by providing treatment as an unregistered health practitioner. The HCCC made findings that the Applicant acts in self-interest and for ulterior motives, even if it is unsafe or unethical to do so. I have given this evidence significant weight.

64. I have considered the submissions in relation to the Applicant’s non-compliance with public health orders on three occasions in 2021. By themselves, they attract little weight, particularly in view of often tense COVID-19 arrangements that were in place in NSW. However, they form part of a pattern of the Applicant’s non-compliance with laws with which he does not agree.

65. I have considered the Applicant incorrectly answering the questions in his October 2021 application for a firearms licence where he answered ‘no’ to questions about whether he had ever had a firearms licence suspended or revoked. The Applicant’s licence history shows that on 2 February 2005 his licence was suspended and it was revoked on 12 September 2007. The Applicant is clearly an educated and intelligent man. He did not provide any evidence either in writing or orally disputing the allegation of dishonesty. I am satisfied that he did not answer the question honestly, which is of concern (see – s 70 of the Firearms Act; Blayden v Commissioner of Police, NSW Police Force [2015] NSWCATAD 240 at 53]).

66. The Applicant’s driving record is also noteworthy. As has often been observed in decisions of this Tribunal, both the traffic laws and the firearms provisions are designed with the aim of ensuring public safety (see Khan v Commissioner of Police [2022] NSWCATAD 20 at [96] and O’Brien v Commissioner of Police [2022] NSWCATAD 259 at [59] which are apposite). I agree with the Respondent that the Applicant’s driving record demonstrates a lack of responsibility in adherence to the law and a disregard for public safety.

67. The Applicant admits he is a close associate of Mr Paul Burton, through the Church of Ubuntu and the Ubuntu Wellness Clinic. The Applicant and Mr Burton are parties in yet to be determined proceedings under s 105 of the Care Act. The Respondent attempts to draw a link between Mr Burton and a potential for him to obtain access to a gun from the Applicant. Annexed to the submissions is a Facebook post purportedly from Mr Burton making a number of serious threats and allegations. The Applicant objected to the tender of this Facebook post. Without confirmation of the provenance of the post, I attach little weight to it.

68. I note that the Applicant has fewer recorded offences in recent years, apart from the 2018 drive under the influence of a prohibited drug. This offence is of particular significance when assessing the public interest. This is because it demonstrates a continued disregard for the law and public safety. The 2021 failure to provide details after an accident, is less significant given the Applicant’s explanation of the event. I have considered the Applicant’s explanation that the service station has CCTV cameras to capture the accident does not justify his failure to leave his details following, even on his evidence, a minor accident. I do not accept the Applicant’s explanation that just because the service station had CCTV camera’s he did not have to exchange his details. For example, the CCTV may not have been operating at the time of the accident. Nevertheless, it is a further matter which demonstrates a pattern of the Applicant’s disregard for the law.

69. I have considered the film Billion Dollar Crop and give it no weight as it pertains to this application. The film which depicts the Applicant, advocates for the legalisation of the use of hemp and cannabis for medical use. While I accept as a general proposition the law has since changed in this area, the law as at the time of the films production, did not allow for the legal use of cannabis. Advocacy for law reform can take place without one breaching the law.

70. Notwithstanding, that a number of the drug offences with which the Applicant was charged were withdrawn, dismissed or a finding of not guilty returned, which attracts little to no weight, the Applicant has a remaining moderate and relevant history of convictions. This includes an extensive traffic history and some drug offences. I have decided to give this history significant weight.

71. The material contained within the Confidential Material on which the Respondent relies is also of significance.

72. [NOT FOR PUBLICATION]

73. [NOT FOR PUBLICATION]

74. [NOT FOR PUBLICATION]

75. I understand that the Applicant does not have access to the Confidential Material. I have nevertheless considered that material and I have decided that it should be given significant weight.

76. The Applicant’s personal interest in having a licence cannot outweigh the public interest. The public’s right to safety must take precedence (see – Huckel v Commissioner of Police, New South Wales Police Force [2008] NSWADT 347 at [41] and Hill v Commissioner of Police, New South Wales Police Force Service [2002] NSWADT 218 at [22]).

77. In my view, the material leads me to the conclusion that at this time it is not in the public interest for the Applicant to be granted a firearms licence. I am not satisfied that there is virtually no risk to the public in the Applicant having access to firearms.

Fit and proper person

78. Similarly, I find that the Applicant is not a fit and proper person to hold a firearms licence. The nature of the Applicant’s consistent and repeated failure to comply with the law (findings of contempt, criminal history and significant traffic offending), his failure to adhere to the professional obligations as a health practitioner and his lack of candour in completing the licence application form, are in my view activities, which demonstrate improper conduct, that is likely to continue to occur, or at a minimum, I am not satisfied that the general community can have confidence that it will not occur in the future.

79. [NOT FOR PUBLICATION]

80. The Applicant has repeatedly engaged in concerning conduct which demonstrates a clear pattern of disregard for the law. Apart from his admission that he has a poor traffic record, he has not demonstrated any insight into his behaviour and describes most of his conduct as “civil disobedience”. The Applicant’s conduct and contempt for the law demonstrates he is not a fit and proper person to hold a firearms licence.

81. In these circumstances, the correct and preferable decision is to affirm the Respondent’s decision.

Order

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: 24 March 2023