Keegan Jacques v Commissioner of Police

[2017] NSWCATAD 145

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Keegan-Jaques v Commissioner of Police [2017] NSWCATAD 145
Hearing dates:	13 February 2017 and 20 March 2017
Date of orders:	09 May 2017
Decision date:	09 May 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Scahill, Senior Member
Decision:	Respondent’s decision affirmed
Catchwords:	Firearms licence revocation- not in the public interest
Legislation Cited:	Administrative Decision Tribunal Act 1997 Firearms Act 1996 Firearms Regulation 2006
Cases Cited:	Bottomley v Commissioner of Police, New South Wales Police [2005] NSWADT 211 Brosowski v Commissioner of Police [2003] NSWADT 182 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 Commissioner of Police, NSW Police v Lee NSW [2016] NSWCATAP 234 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179, (1979) 46 FLR 409 Hijazi v Commissioner of Police [2014] NSWCATAD 148 Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 Potts v Commissioner of Police, NSW Police Service [2010] NSWADT 311 Tannous v Commissioner of Police [2011] NSWADT116 Ward v Commissioner of Police [2000] NSW ADT 28 Wilkinson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 59 Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75
Category:	Principal judgment
Parties:	Jason Gregory Keegan-Jaques (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Counsel: Mr Ewell (Applicant)   Solicitors: Tsambas and Co (Applicant) Bartier Perry (Respondent)
File Number(s):	2016/00378123, 1610359

Reasons for decision

Background

1. This was an application by Mr Keegan-Jaques (the Applicant) for review of a decision of the Commissioner of Police to revoke the Applicant's firearm licence. The Applicant was issued with a category AB licence on 7 August 2015, to expire 1 October 2020. The licence was revoked by letter received by Mr Keegan-Jaques on 16 December 2015. The Respondent affirmed the decision after internal review dated 26 April 2016. The decision to revoke the licence is the decision under review.

2. The statement of reasons of 26 April 2016 (internal review decision) state that the Applicant was licensed under the Firearms Act 1996 on 7 August 2015 with a category AB firearms licence for the genuine reason of recreational hunting/vermin control, to shoot on another person’s rural land. On 9 December 2015, the Applicant's firearms safekeeping provisions at his home were inspected and approved by police. The storage facilities were approved after police instructed Mr Keegan-Jaques that additional fasteners were required to support the top of the safe.

3. The Respondent’s notice of revocation of the Applicant’s firearms licence dated 16th of December 2015 provided the following reasons: The Respondent referred to the Applicant’s criminal history, including behave in offensive manner; possess prohibited drug; drive with middle range PCA (X 2) assault officer in execution of duty and destroy or damage property. The safekeeping provisions were inspected and the Applicant was instructed to place additional bolts to secure the top of the safe. The provisions were approved on 9 December 2015. The Respondent noted that on his Facebook page, the Applicant had posted images of himself with high-powered firearms; young children dressed in camouflage holding firearms; and a firearm mounted on a boat parked outside the Applicant’s home. Since the issue of his firearms licence, the Applicant had come to notice regarding his Facebook profile which raised concerns regarding the images that he had posted with firearms. The photographs provided reasonable grounds to conclude that he had given children access to firearms and that he had used firearms for inappropriate and unauthorised purposes. Additionally, some of the Applicant’s Facebook comments could be viewed as threatening the safety of others. The Applicant’s criminal history demonstrated that he was not a person who strictly obeyed the law. The drink driving offence in 2006 was committed while the Applicant remained subject to a good behaviour bond for an earlier offence relating to assaulting a police officer. Further, the elements of some of the Applicant’s charges demonstrated a significant disrespect for police officers. These factors formed a reasonable basis on which to conclude that the Applicant may choose to ignore firearms laws designed to protect the public. The Respondent was satisfied that the Applicant’s continued authorisation for firearms could pose a risk to public safety contrary to the Tribunal’s requirement set out in Ward v Commissioner of Police [2000] NSW ADT 28. The Applicant’s firearms licence had been issued for recreational purposes only. The Respondent’s considered that public safety should be given more weight than the Applicant’s desire to hunt.

4. The Applicant sought internal review. He said that he was not responsible for all comments made on his Facebook account as it was accessed through his work phone. He implied that the comments had been made by his stepfather who works in his business. He denied having disrespected the police. He said his .308 Winchester calibre Remington Arms Model 700 bolt action repeating rifle (the Remington) had not been illegally modified by him, as he would not know how to modify it. He said the picture of a child holding a firearm was his young child holding a toy gun on a camping trip. He said that the gun was not always mounted on the boat. The gun had been positioned on the boat for no longer than a couple of minutes. He was about to go on a hunting trip at the time. The picture of the child holding guns in camouflage was not his child. He had taken the photo on a hunting trip. He referred to aspects of his criminal history as being an incident where family and alcohol were involved. He did not think that the drink driving offence had been committed while he was on the bond. He had rarely had a drink in the past 12 years. His hobby meant a lot to him and he has spent a large amount of money on a hunting vehicle and firearms. He had deleted his Facebook account. He provided a number of references as to his good character from family and friends.

Statement of reasons on internal review

5. The statement of reasons referred to the Facebook material, the Applicant’s criminal history and his previous adverse traffic history, as recent as June 2015. Concerns are now raised regarding the Applicant’s willingness and ability to comply with firearms legislation and as a result, the internal reviewer was unable to eliminate the possible risk to public safety if the Applicant were to be authorised for firearms.

6. The likelihood of risk is something to be assessed by reference to the Applicant’s prior conduct see Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSW ADT 182 at [41]. The licensing regime is not about punishment but rather about protecting the public. It 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 Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. The reviewer was unable to eliminate the possible risk to public safety if Mr Keegan-Jaques were to continue to be authorised for firearms. The public’s right to safety outweighs an individual’s privilege to possess and use firearms.

7. The Reviewer considered that the traffic record report for the Applicant’s driver licence demonstrated the Applicant's significant disregard for driving laws and regulations in New South Wales over an extended period.

8. The internal Reviewer considered the underlying principle of the law in relation to firearms licensing, 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. There are several provisions which allow the Commissioner to revoke a licence, including section 24 (2) (d) of the Firearms Act 1996 (the Act) which states that a licence may be revoked for any other reason prescribed by the Firearms Regulation 2006 (the Regulation). Clause 19 of the Firearms Regulation 2006 prescribes that a licence may be revoked if the commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence. The Respondent decided it was not in the public interest for the Applicant to have a firearms licence. The principal issue is whether there is a risk to the safety of the public if a person retains their firearms licence. This is to be assessed by reference to a person's prior conduct. The Applicant's criminal and traffic history indicated a lack of regard for the law. The Respondent considered that the traffic record gave indication of the Applicant's disregard of the law and raised concerns that the Applicant is not sufficiently responsible to be a firearms licence holder. The Respondent concluded that it was not in the public interest for the Applicant to have a firearms licence.

The Applicant's case

9. The Applicant provided an affidavit and gave oral evidence at the hearing. The Applicant provided detailed oral and written submissions in support of the application. The Applicant stated that after he was granted his firearms licence, he obtained further permits on 28 September 2015 - 18 November 2015. In the following weeks, he purchased 12 firearms and two storage containers and ammunition boxes. During the three months he had the firearms, he used them in accordance with the terms of the permit, including to control vermin such as goats and wild dogs on properties. He had not modified any of the firearms he acquired. He had not allowed any children to hold or possess his firearms. At all times, he had used and stored his firearms in accordance with the laws of New South Wales. At no time since being issued with the licence did he disobey any laws concerning safety and security of his firearms, or any other law. After the police came to inspect his storage facilities on 9 December 2015 he made arrangements to have additional bolts installed on the following day.

10. The Applicant was cross-examined by the representative for the Respondent.

11. The Applicant agreed that amongst his criminal offences was an occasion in November 2004 when he kicked in a glass door and yelled obscenities at the police. On another occasion, he struggled with police and had run away. He had been convicted of two mid-range prescribed content of alcohol (PCA) offences, the more recent one in March 2010. In May 2012, he had been convicted of behaving in an offensive manner.

12. The Applicant agreed that his driving offences ranged from 1996 to 2015, when he was aged 17 through to 36. When asked about each matter, he said he “did not recall it” repeatedly. He said, “If that’s what’s on the record - that’s what it is.” He had been convicted of driving unlicensed. He had been convicted of not wearing a seat belt 3 times in 2000, 2003 and 2013. He agreed that a number of the infringements had been incurred over the age of 35.

13. The Applicant was shown a photo of the Remington firearm. The ballistics expert, Mr Wilson, had said it was a prohibited weapon as it had both a telescopic and detachable stock. In response, the Applicant said he didn’t know much about it. He didn’t know much about the brand. He was shown photos of the firearm on the boat. He said it had not remained there for long. He had been taking it out of the car. He was shown a photo of the facial injury that he had posted on Facebook referring to the Remington saying: “She bites.” Mr Keegan-Jaques was then shown a comment on Facebook which read “Ha, the adjustable stock wouldn’t pull out.” He could not remember why he had said the stock was adjustable. He said to the Tribunal maybe someone had mentioned it to him. Maybe his post was worded wrong. He was not a firearms expert.

14. The Applicant was shown a photo which showed that the stock was detachable by moving a lever. In response, he said “Not that I’m aware of.”

15. The Applicant was shown photos posted on October 19, 2015 on Facebook with the caption “Good weekend away with the boy.” One of the photos showed a child with his back to the camera wearing an ammunition belt. The caption stated: “All training for the bleak future mate”. He denied that the photo depicted his son or that he had been training his son to use firearms. He thought that someone else could have had the telephone at the time, as the phone usually stays at home with the workers and there is no service up there.

16. The Applicant agreed that he had made a number of posts about his firearms, including the purchase of new firearms and photos showing his firearms. He said that he thought his Facebook account had been on a private setting. He did not know how the police had got access to it. He said he did not know who Rod Hill was who had also posted to his Facebook page. He denied that derogatory comments about Ms Hanson-Young, an Australian politician and a German female politician were his. He didn’t know what they referred to.

17. He said during the cross-examination that he was seeing many of the Facebook posts for the first time. He said he could not keep up with the cross examiner in reading them.

18. He was asked about some posts relating to having cruised through Lakemba which included derogatory remarks about Muslims. He said that it was a juvenile act. It was bravado and they had talked up what they had done in the Facebook posts.

19. He was asked about a Twitter account labelled “Jason Jaques infidel”. He said it didn’t ring a bell, even though it contained aspects of his name. He said he didn’t have a Twitter account. If he had a Twitter account there was nothing on it. He agreed that he may have used the term “Australian infidel”. He thought that some of the posts might have been about the war in Russia. He said that his posts had led to threats of violence including the comment “apparently, my mother is going to get raped a lot”. He said he had experienced a lot of trouble over the last year. He had got rid of Facebook. He said, “I didn’t know that just speaking to people could cause such problems”.

20. The Applicant said that the photo of his children together with his firearms had been taken when the firearms were out for cleaning. He denied being part of a doomsday prepping group. He commented that he did not know how to explain some of the posts. He said he would not make the same mistake again. He said he had got older and changed.

21. The Applicant agreed with the suggestion that traffic laws were for the safety of the public.

The Applicant’s submissions

22. The Applicant said that he had committed no offence in relation to his firearms.

23. The Applicant referred to the matter of Potts v Commissioner of Police, NSW Police Service [2010] NSWADT 311. Mr Potts had also expressed strong views about a section of the community. The Tribunal had not considered this a reason to revoke his firearms licence.

24. The most serious of the Applicant’s criminal offences, assault police, had been dealt with under section 10. There was no suggestion he had committed offences in relation to his firearms licence. It was a quantum leap to say that taking photos of his firearms was a breach of section 9 of the Firearms Act 1996.

25. The Tribunal was not being asked to find whether the Applicant had himself modified the Remington firearm. The Applicant was unable to adjust the stock and it was not readily detachable. He had acquired the firearm through a master licensee. It would be unfair on the Applicant to punish him when the master licensee had allowed the sale of the Remington. It was likely that the master licensee needed to protect his own position by insisting that the Remington was not modified when he assisted in the sale to the Applicant. The only thing that was clear about the Remington was that the Applicant was unable to adjust it.

26. Sergeant Peters had been unable to confirm whether the Facebook photo showed a genuine firearm in the child’s possession. She thought it was possibly a toy or replica. The Applicant said it was a toy. The Respondent bore the onus of proof to show that the Applicant had given a real firearm to a child. The Tribunal would need to be satisfied on the balance of probabilities that it was a firearm in the child’s hands and that the Applicant had provided it to the child. The Applicant himself could not confirm that the child in the photos was his son. The photos had been taken more than 12 months ago.

27. One of the few things that the Facebook posts actually establish is that the Applicant goes to the country for hunting trips for the purposes of hunting vermin with other families.

28. The Applicant conceded that some of the content in the Facebook posts and comments were “vile”. However, they were private communications. The police officers concerned had to go looking for them. They were not communications that the Applicant was broadcasting to people who would find them offensive. It was open to the Tribunal to find that the comments and the trip to Lakemba were silly bravado. There was no suggestion that the Applicant had taken a firearm with him to Lakemba. The views were the Applicant’s private views and there was nothing to demonstrate that he had any intention of acting upon them. As Senior Member Molony said in the matter of Potts, this Applicant also had a tendency to “test the Dragon” The Applicant was exercising his right to free speech just as was Mr Potts had done. Just because the Applicant had expressed views in undesirable terms, this did not remove his right to free speech.

29. The Applicant had demonstrated appropriate engagement with the authorities. He was not someone who was recalcitrant. He had not breached the Firearms Act 1996. He did not demonstrate any aggression in his dealings with the police.

30. The Respondent had to rely on traffic offences going back five years, in the allegation that it was contrary to the public interest for the Applicant to be licensed. The Applicant had now matured. He has attained fatherhood and maturity. There had been no change in the Applicant’s circumstances since his licence had been issued. The police witnesses had acknowledged that the only real difference was the Facebook posts. An investigation was still going on in relation to the prohibited weapon 18 months after the event. In any event, the modification to the Remington did not turn it into a fully automatic firearm. It was a very low end modification and a technical breach. The police could now hold on to the firearm.

31. It was true that some of the Facebook posts were foolish. The Applicant has now deleted the account. He acknowledged the trouble that it had caused. The Applicant had not remembered traffic offences going back to the age of 26. The Applicant had acknowledged the silliness of driving through Lakemba. The music was being played on an iPhone and it was not blasting out the window. His Facebook comments may have been ill-advised, however they were not connected to the firearms licensing system. The comments were largely bravado and they were not acted upon. The Applicant submitted that he had been candid to the extent that he could be.

The Respondent's case

32. The Respondent’s section 58 documents included the Applicant's traffic record; firearms licence history; criminal record history; printouts of entries on the Applicant’s Facebook pages in December 2015; notice of revocation; internal review documents; internal review statement of reasons dated 24 April 2016; and the Applicant’s notice of application for review by the Tribunal lodged 27 May 2016. The Respondent also relied on detailed written submissions, which were supplemented by oral submissions at the hearing.

32. The Respondent also submitted written statements from

• Sergeant Kellie Peters dated 1 November 2016

• DSC Paul Hancock dated 1 November 2016

• Sergeant Geoffrey Steer dated 14 November 2016.

Statement of Sergeant Geoffrey Steer, dated 14 November 2016.

34. Sergeant Steer is presently the team leader of the Bias Crimes unit of the NSW Police Force. Sgt Steer had referred the contents of Mr Keegan-Jaques’ Facebook pages to local command, Sgt Kellie Peters, for review and action. Sergeant Steer was concerned by the comments on the Applicant’s Facebook page as they expressed views of hate against Muslims; they made comments of a violent nature and engaging in provocative conduct; they made comments of a violent nature regarding firearms and made it known that Mr Keegan-Jaques had firearms. Further, the photos and comments involved children depicted with firearms and inappropriately stored ammunition. Sgt Steer’s concerns were that strong views of hate expressed against Muslims are provocative and confirmed that Mr Keegan-Jaques had engaged in provocative behaviour. There were references to using firearms against politicians who expressed views different to those of Mr Keegan-Jaques. The posts had resulted in various threats being made against Mr Keegan-Jaques. This created an environment in which Mr Keegan-Jaques was advertising that he had numerous firearms. The references to violence and conflict distinguish Mr Keegan-Jaques from a person simply expressing views. The comments and posts show a propensity for targeted violence. In Sgt Steer’s view, Mr Keegan-Jaques was not a fit and proper person to hold a firearms licence New South Wales.

Statement of Sergeant Kellie Peters dated 1 November 2016

35. Sergeant Peters’ statement attaches Facebook comments, entries and a video exhibited on Mr Keegan-Jaques’ Facebook page. In her evidence before the Tribunal she said she had searched Mr Keegan-Jaques’ name on Facebook and it had come up and she had accessed his Facebook pages. Sgt Peters expressed her concerns about the hatred for a section of the community and threats of violence contained within the material.

36. Under cross-examination, Sgt Peters agreed that the video of the Applicant driving through Lakemba did not show that any attention was paid to him. There had been no engagement with pedestrians. She agreed that it was not an offence to point a gun at a camera. She thought that the firearm that the child was holding in the photograph could be a toy or replica. She thought that mounting a firearm on a boat would not be compliant with safe storage. Sgt Peters stated that she was not an expert in these matters. She agreed that there was no offence constituted by children being in proximity of firearms. She said that the Facebook material was all public. She was not aware of the Applicant having engaged in any further offending. The only thing that had changed after the Applicant had been licensed, from her perspective, was the Facebook information.

Statement of DSC Hancock

37. DSC Hancock’s statement refers to the execution of a search warrant at Mr Keegan-Jaques’ place on 17 December 2015. DSC Hancock notes that a Remington firearm removed during the search was found by Steven Wilson ballistics expert to be a prohibited firearm, contrary to clauses 5 and 11 of schedule 1 of the Firearms Act 1996. The firearm had a readily detachable stock and it was a telescopic stock. This rendered the firearm a prohibited weapon. Mr Keegan-Jaques had told DSC Hancock at the time that he had purchased the weapon in its modified state. DSC Hancock had spoken to an unnamed firearms dealer who had assisted Mr Keegan-Jaques in the purchase of the firearm. The dealer said that the firearm had not been modified at the time Mr Keegan-Jaques had purchased it.

38. In his evidence before the Tribunal, DSC Hancock said that he had searched but the video of the search warrant could not be located. He said the Applicant had been very co-operative with the police. He did not know if any charges would be brought against the Applicant in respect of the alleged prohibited weapon. He thought it was unlikely. He had seen many rolls of camouflage tape at the Applicant’s home. He confirmed that there was no offence in pointing a firearm at a camera. It would depend though upon how the photos were used.

Summary of the Respondent’s submissions

39. The Respondent provided written submissions filed in the Tribunal on 21 November 2016.

40. The Respondent submitted that the decision to revoke the Applicant’s firearm licence was justified by his criminal history; his history of traffic infringements; his contraventions of the Firearms Act 1996 and the incompatibility of the Applicant’s comments on Facebook with the privilege of holding a firearms licence and the risk his conduct created.

41. Keeping in mind the objects and principles of the Firearms Act 1996, it was not in the public interest for the Applicant to retain his firearms licence. The Respondent referred to the matter of the Commissioner of Police, NSW Police v Lee NSW [2016] NSWCATAP 234 at [24] to [25] as authority for the proposition that in relation to the Firearms Act 1996, the Applicant’s previous conduct is relevant. Anything that the Applicant has done to affect public interest is relevant. The Respondent referred to the Applicant’s criminal history and his traffic history. In the matter of Tannous v Commissioner of Police [2011] NSWADT116 at [32] and [37], the Tribunal had stated that traffic rules are designed for public safety. The Applicant’s repeated breach of these was a repeated breach of measures designed to protect the public.

42. In relation to the prohibited firearm, the Respondent said that even if the firearm had been modified prior to the purchase of it by the Applicant, there was an obligation that was personal to the Applicant to ensure that he did not possess a prohibited firearm. See Hijazi v Commissioner of Police [2014] NSWCATAD 148 at [22] to [23].

43. The Applicant had been in breach of safe keeping requirements under section 39 of the Firearms Act 1996. The Respondent pressed that a Facebook post showed the Applicant’s son in possession of firearms. Further the Respondent did not accept that the Applicant’s son had been shown with a toy gun.

44. The Applicant’s promotion of his ownership of guns on Facebook at the same time as posting hate messages and making comments about conflict put public safety at risk. This meant that the Applicant had not taken reasonable precautions to ensure the safe keeping of his firearms contrary to section 39 of the Firearms Act 1996.

45. The Applicant would know that his Facebook posts would be circulated beyond immediate friends. The Respondent submitted that the Tribunal should not accept that the Applicant’s stepfather had made the posts. The posts are more than the mere expression of a view. In this respect, the Respondent relied upon the statement of Sgt Geoffrey Steer as the Facebook posts referred to hate, guns, politicians and children.

46. In short, the Applicant’s messages of hate and provocation had provoked a strong response. The existence of firearms in that environment created an obvious risk to public safety. The public would be very concerned that a person with the Applicant’s history and continued disobedience of laws, with his strongly held views expressing hate, and his willingness to engage in acts of provocation, combined with his references to violent acts and firearms, along with the environment that creates, with a risk to public safety, would be given the privilege of firearms licence.

Relevant Legislation

Firearms Act

Section 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, and

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

(2) The objects of this Act are as follows:

(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(b) to establish an integrated licensing and registration scheme for all firearms,

(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,

(e) to ensure that firearms are stored and conveyed in a safe and secure manner,

(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

9 Authority conferred by licence-additional matters

(cf 1989 Act s 21 (2), APMC 1 (b), 3, 4)

(1) A licence that authorises the licensee to have possession of a firearm also authorises the licensee to have possession of the firearm while:

(a) taking it to a licensed firearms dealer for the purpose of:

(i) selling it, or

(ii) having it converted, maintained, tested or repaired and subsequently recovering it from the dealer, and

(b) taking it to a police officer for the purpose of having it inspected and subsequently recovering it from a police officer, and

(c) taking it to a police officer for the purpose of surrendering it.

(2) ………

Firearms Act

section 24 - Revocation of licence

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

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

(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 P1F licence or a visitor permit authorising the licensee to carry out security activities of a kind authorised by a P1F licence under the Security Industry-the P1F licence or visitor permit 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.

47. Clause 19 of the Firearms Regulation 2006 stipulates 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. Section 11 of the Act sets out general restrictions on the issue of firearms licenses. The relevant provisions are subsections 3(a), 5(b) and (d), and (7), as follows:

"(3) A licence must not be issued unless:

(a) 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, and ...

…

(5) A licence must not be issued to a person who:

…

(b) has, within the period of 10 years before the application was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or

...

(d) is subject to a good behaviour bond, whether entered into in New South Wales or elsewhere, or ...

…

(7) Despite other provisions in this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest

48. Section 24(2)(a) of the Act prescribes that the Commissioner may revoke a firearms licence for any reason for which the licensee would be required to be refused a licence of the same kind.

49. Section 24(2)(b)(ii) of the Act) provides that the Commissioner may revoke a firearms licence if the licensee contravenes any provision of the Act or the Regulation, whether or not the licensee has been convicted of an offence for the contravention.

50. Section 24(2)(b)(iii) of the Act provides that the Commissioner may revoke a firearms licence if the licensee contravenes any condition of the licence.

Firearms storage

39 General requirements on licensees

(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.

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

51. With limited exceptions, section 75(1)(c) of the Firearms Act 1996 provides a person may apply to the Tribunal for a review of the decision to revoke a licence.

52. Section 63 of the Administrative Decision Tribunal Act 1997 ("the ADT Act") 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. The Tribunal is not restricted to a consideration of the material that was before the Commissioner, 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 179; (1979) 46 FLR 409.

53. A frequently used phrase is that, when conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker.

54. Section 63(3) of the ADT Act sets out the possible outcomes of the Tribunal’s review: The Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

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

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

Discussion of case law on public interest

55. The Tribunal's role is to decide what the correct and preferable decision is having regard to the material then before it. The Respondent contends that it is not in the public interest for the Applicant to hold a licence. A discussion of relevant case law was set out by the Tribunal in the case of Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276:

69 The Applicant's individual interest in retaining his licence must be subordinate to the public interest in ensuring public safety. This position is supported by the decision of Comalco Aluminium (Bell Bay) Ltd v O'Connorand Others (1995) 131 ALR 657 where it was stated at 681:

"The purpose of the reference to 'public interest’ is to ensure that private interests are not 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."

70 In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at paragraph [25], the Appeal Panel said that the 'public interest' "is an inherently broad concept giving [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual".

71 There is discretion with respect to whether to revoke the licence in this case. The Tribunal has previously found that any discretion must be exercised to promote the objects of the firearm legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and the discretion is to be exercised in clear preference to the public interest than an individual's private interests. That view has been followed in numerous decisions and I agree that it is the correct approach to be taken in this matter.

72 In Wilkinson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 59 Deputy President Hennessy stated at paragraph [25]

25 As the Firearms Act does not list factors which a decision maker must take into account when exercising a discretion about revocation, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act. ...

73 A firearm licence is a privilege and not a right. Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 at paragraph [25].

74 The underlying principles of the Act stated in section 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, New South Wales Police Service [2000] NSWADT 28, at paragraph 28, Deputy President Hennessy said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk".

56. The likelihood of risk is to be assessed by reference to relevant prior conduct: Brosowski v Commissioner of Police [2003] NSWADT 182 at [41].

Analysis of the Applicant’s evidence

The Applicant’s traffic infringement history

57. The Applicant was unable to recall the traffic offences. Some of the offences are repeated e.g. speeding, PCA and not wearing a seatbelt – the last, on three occasions. On one view this demonstrates that the receipt of infringements had made little impact on the Applicant. They did not cause him to change his behaviour. The repeated infringements also suggest a lack of concern for either the public’s or his own safety.

The Applicant’s criminal history

58. The Applicant has 2 offences demonstrating his lack of co-operation with police. However, the evidence of DSC Hancock was that the Applicant had been co-operative with the police and the execution of warrant. In this respect, the Tribunal accepts the Applicant’s submission that he had matured in his approach to dealing with the police.

The alleged prohibited weapon

59. Mr Wilson’s evidence that the Remington was a prohibited weapon was not contradicted. The Tribunal is satisfied that the Remington was a prohibited weapon. The Tribunal is satisfied that the Applicant possessed a prohibited weapon.

60. When asked about the modification, the Applicant said he was not a firearms expert. He denied knowing much about the Remington firearm. The Tribunal considered this an inadequate response to the fact that a firearms licensee bears an obligation to comply with firearms regulation.

61. The Applicant denied modifying the Remington. There was no evidence before the Tribunal that the Applicant had modified it himself. The Applicant denied knowing that the stock was adjustable. However, the Applicant’s comment on Facebook that “Ha, the adjustable stock wouldn’t pull out”, contradicts this.

59. The Tribunal finds that the Applicant was aware that the stock was adjustable and that he was not honest with the Tribunal about this knowledge.

60. The Applicant’s professed lack of knowledge about his firearms was of concern, given the responsibilities on a firearms licensee – irrespective of the licensee’s longevity of licensing. The Applicant’s professed lack of knowledge about aspects of his firearms is also of concern to the Tribunal given the large number of firearms that the Applicant had acquired in the short period he was licensed.

The Facebook posts

64. When taken through the posts on his Facebook pages, the Applicant was vague about which ones were his and which had been posted by others under his name. He said he thought that access to his posts was private; however he denied knowing Rod Hill who had posted on his page. This indicated to the Tribunal that the Applicant was not concerned about ensuring that he posted material only to friends. His denial that he had posted material which was on his Facebook page was not credible. At the least, the Tribunal was satisfied that the Applicant allowed items not posted by him to remain on his Facebook page. The Applicant told the Tribunal that he did know how to explain the posts and that he couldn’t keep up with the cross examiner in looking at the Facebook page. This was despite the fact that the Facebook posts had been identified by the Respondent as a significant aspect of the Respondent’s reasons for revoking his licence. The Applicant had been provided with the materials prior to the hearing of his application.

65. The Tribunal does not find that the Applicant had given possession of his firearms to children. The Tribunal could not be satisfied that the child in the photos on Facebook was holding a real firearm.

66. The Tribunal does not make findings that the Applicant had breached firearm storage requirements.

67. The Applicant had repeatedly referred to his gun ownership and had advertised it on Facebook by posting photos. The photos were set up to be intimidatory. For example, there is a photo in which the viewer looks down double barrels. The Applicant had also threatened violence in his Facebook posts.

68. The Applicant himself stated that his posts had led to many threats of retribution. This is of concern in a context where the Applicant had firearms on hand at his home. It also underlines the fact that the posts had gone beyond friends - they were not private. The Tribunal is satisfied that the Applicant himself created a threat to public safety by his posts linking firearms with hatred.

69. The Applicant was evasive about a Twitter account. He said he didn’t remember it. This was not credible as the account name contained his name and a reference to “Australian infidel”. The Applicant agreed that he had referred to himself in these terms. The Applicant’s evidence that this was not his Twitter account was not credible.

70. The Tribunal accepts that the Applicant had dealt appropriately with police in relation to the execution of the search warrant at his home. The Applicant said that he had got older and had changed, but there was no other evidence provided to demonstrate this by the Applicant. The Applicant said “it” would not happen again but he did not explain what “it” was. The Applicant showed no appreciation of his behaviour in relation to the Facebook posts professing hatred to a section of the community. The Applicant minimised his behaviour. “I didn’t know that just speaking to people could cause so many problems.”

Findings on the evidence

71. In the present case, the Respondent relied upon 4 main areas of objection to the Applicant retaining his licence. They were

• The Applicant’s criminal history

• The Applicant’s history of traffic infringements;

• The Applicant’s contraventions of the Act; and

• The risk created by the Applicant’s Facebook posts.

72. The Respondent submits that these indicate a lack of regard for the law and that it is not in the public interest for the Applicant to hold a firearms licence.

73. The Tribunal is required to look at the Applicant's conduct as a whole, in the context of the firearms legislation, and decide whether it is in the public interest for the Applicant to hold a firearms licence at this time.

74. The Applicant submits that he has committed no further offences or traffic infringements. He submits that he has matured. He did not know that the Remington had been modified when it was sold to him. He had not given possession of his firearms to children. He was entitled to express his views privately. His trip to Lakemba and his description of it were bravado. He had provided references from people who thought well of him.

75. The overriding principle of the Act is public safety. The Act confirms that firearm possession and use is a privilege conditional on public safety.

76. The Applicant’s traffic history shows a disregard for public safety and his own safety as he repeated traffic offences.

77. The Applicant’s behaviour in posting hate statements coupled with displays of his firearms led to threats being made to him.

78. As has been noted on several matters, the Tribunal found the Applicant’s evidence about the matters put to him as evasive and in many points not credible.

79. The references did not deal with the issue for consideration by the Tribunal – that is was it in the public interest for the Applicant to continue to hold a firearms licence. As a result they did not assist the Tribunal in deciding this issue.

80. The Tribunal must be satisfied that the Applicant’s licensing for possession of firearms presents “virtually no risk”. The Tribunal identifies potential risks as including but not limited to:

• theft of the Applicant’s firearms – given his advertising of them through Facebook;

• safety risks to those around the Applicant when he uses them, given the Applicant’s professed lack of knowledge about his firearms – including that one was a prohibited weapon; and

• the risk of retaliatory violence towards the Applicant for advertising his views together with his possession of firearms.

81. The Tribunal is satisfied, viewing the Applicant's conduct as a whole, that it is not in the public interest for the Applicant to hold a firearms licence. The Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety. The Tribunal considers it is relevant that the Applicant was in possession of what on balance appears to be a prohibited weapon. The Applicant professed ignorance of this and said he was not an expert on firearms.

82. In this context, the Applicant also created an environment where he advertised his possession of a number of firearms, while professing hatred for a section of the community on his Facebook page. The Applicant himself raised concerns about the threats he received as a result of his Facebook postings.

83. The Tribunal cannot be satisfied that there is virtually no risk to the community presented by the Applicant’s licensing to possess firearms.

84. The Respondent’s decision 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: 09 May 2017