Lee v Commissioner of Police

[2022] NSWCATAD 302

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Lee v Commissioner of Police [2022] NSWCATAD 302

Hearing dates:

26 July 2022

Date of orders:

14 September 2022

Decision date:

14 September 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Levine, Senior Member

Decision:

(1)   The Decision under review is set aside.

(2)   A Category A, B, and C firearms licence is to be issued to the Applicant as an owner of rural land for recreational hunting/vermin control and primary production.

Catchwords:

ADMINISTRATIVE REVIEW – Licensing – Firearms – Refusal to issue category A, B, and C firearms licence – Fit and proper person – Whether licence would be contrary to the public interest in light of firearm and traffic history, including conduct relating to recent vehicle safety infringement – Significance of earlier findings by Tribunal

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Firearms Act 1996 (NSW)

Cases Cited:

AML v Commissioner of Police [2013] NSWADT 5

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

BY v Director-General, Attorney-General’s Department [2002] NSWADT 79

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

Constantin v Commissioner of Police [2013] NSWADTAP 16

Esterman v Commissioner of Police [2014] NSWCATOD 70

Haining v Commissioner of Police, NSW Police Service [1999] NSWADT 6

Joseph v Commissioner of Police [2017] NSWCA 31

Hijazi v Commissioner of Police, NSWPF [2015] NSWCATAD 252

Hill v Commissioner of Police, NSW Police Service [2002] NSWADT 218

Keegan-Jaques v Commissioner of Police [2017] NSWCATAD 145

Lee v Commissioner of Police, NSW Police Force [2015] NSWCATAD 254

Lee v Commissioner of Police, NSW Police Force [2017] NSWSC 1849

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

Madziala v Commissioner of Police [2021] NSWCATAD 269

Martin v Commissioner of Police [2017] NSWCATAD 97

Masterson v Commissioner of police, NSW Police Force [2017] NSWCATAP 206

Nguyen v Commissioner of Police [2007] NSWADT 16

Tannous v Commissioner of Police [2011] NSWADT 116

Ward v Commissioner of NSW Police (2000) NSWADT 28

Texts Cited:

None

Category:

Principal judgment

Parties:

Stephen Lee (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
Applicant (Self-represented)
Maddocks Lawyers (Respondent)

File Number(s):

2022/00074339

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. This case concerns review of a decision to refuse a firearms licence application.

2. On 21 August 2021, Mr Stephen Gary Lee (the “Applicant”) applied for a Category A, B, and C Firearms Licence from the Commissioner of Police (“Commissioner” or “Respondent”). In his application he noted that he is the owner of rural land and employed in the business of primary production, farming, and grazing. His additional reasons for the Category B licence included “humane destruction of larger vermin/appropriate actuation, calibre and for target animal (vermin)”, as well as the humane destruction of “animals and/or stock”. For the Category C licence, he specified the additional reasons of “quantity of vermin and/or animals to be humanely destroyed and controlled” and the “large numbers of terrestrial pest … and avian pest… for protection of crops and domestic stock in the activity of primary production”.

3. On 10 October 2021, the Applicant was notified that his licence application had been refused under section 11 of the Firearms Act 1996 (NSW) (“Firearms Act”) by a Senior Adjudicator at the NSW Firearms Registry acting as a delegate of the Respondent (“Decision”). The Decision referred to the refusal, in 2013, of all the Applicant’s firearms and permit applications on account of contraventions of the Firearms Act. The Decision placed significant weight on comments made in 2016 by the Appeal Panel of the NSW Civil and Administrative Tribunal (“Tribunal”) about Mr Lee’s breaches of firearms legislation over a 13-year period and his “lax attitude”. (Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 (“Lee AP”)). It also pointed to this Tribunal’s in June 2020 by SM Montgomery, who considered that, despite Mr Lee’s good character, “more time would need to pass” before he “could be confident that the Applicant has demonstrated sufficient regard for public safety and his own safety [and] for regulatory schemes aimed at ensuring public safety.” (Lee v Commissioner of Police [2020] NSWCATAD 144 (“Lee 2020”)). The Decision concluded that issuing the licence would be contrary to the public interest within the meaning of section 11(7) of the Firearms Act.

4. Mr Lee emailed the firearms registry on 27 October 2021 to find out what it would consider to be a “reasonable passage of time” before reconsidering granting him a firearms licence. As the firearm licence contraventions happened over eight years ago and the Tribunal had recently accepted his good character, Mr Lee sought this guidance to help decide whether to request internal review. Mr Lee received no response. On 3 November 2021, Mr Lee applied to the Respondent for internal review of the Decision under section 53 of the Administrative Decisions Review Act 1997 (NSW) (“ADR Act”).

5. On 21 February 2022, the Firearms Registry notified Mr Lee that, after conducting an internal review, a different Senior Adjudicator had affirmed the Decision to refuse his category A, B, and C firearms licence. The internal review adjudicator referred to Mr Lee’s firearms licensing history between 1991 and 2013, his criminal history showing what he considered “deceitful and unsafe misconduct” involving firearms, prior adverse decisions of this Tribunal, and an incident on 9 October 2021 in which Mr Lee was stopped by police for a random breath test, issued with a traffic infringement notice for obscuring his rear number plate and a warning for driving with an unsecured load (“9 October 2021 Incident”). The internal review adjudicator expressed concern about the behaviour of Mr Lee towards the police officer during the 9 October 2021 Incident and found that “based on this recent adverse police attention” he could not be satisfied that similar conduct would not be repeated and that Mr Lee may “similarly disregard aspects of the firearms regulatory scheme.” The internal review adjudicator was also not satisfied that there was a special need for a Category C firearms licence. Based on the totality of the information before him, the internal review adjudicator concluded that Mr Lee’s conduct “raises very real and relevant concerns” as to his “ability to adhere to regulatory schemes aimed at ensuring public safety” and “an ongoing lack of regard for the traffic laws and regulations.” He therefore affirmed the Decision.

6. On 15 March 2022, Mr Lee filed his application with this Tribunal for administrative review of the Decision, under section 75(1)(a) of the Firearms Act and section 9 of the ADR Act. In short, he submits that the correct and preferable decision should be to grant the firearms licence. He points to the passage of time and the efforts he has made to improve his compliance with public safety regimes. The firearms offences occurred over 8 (and in some cases over 30) years ago and that he has since matured, become a grandfather, and abided by all firearms regulation for the past 9 years. Any questions about his fireworks business have been resolved. As for traffic violations, he acknowledges his poor history but emphasises that he has worked hard to improve his driving habits. He says he has taken this on board especially after the decision in Lee 2020 linked the refusal of his licence to disregard for traffic safety. He waited to receive all his points back before he re‑applied for his firearms licence. The 9 October 2021 Incident related to unintentional non-serious infringements which he immediately rectified. Mr Lee rejects the characterisation of his conduct as improper and says he was anxious about any traffic fines impacting his prospects of regaining his firearms licence. Not having his firearms licence has had an “unimaginable negative impact”. He reiterated his need for the licence on his farm. He referred to earlier findings by two members of this Tribunal that he is of good character.

7. In the Respondent’s view, insufficient time has passed without incident for Mr Lee to be granted a licence. It says the 9 October 2021 Incident casts doubt on whether Mr Lee is a fit and proper person, but the Respondent’s main focus was on the public interest ground for refusal under section 11(7) of the Firearms Act. The Respondent submits the Tribunal should particularly take into account the most recent violations and conduct exhibited during the 9 October 2021 Incident, as assessed against the background of Mr Lee’s extensive history of firearms offences and traffic violations. The Respondent’s position is that the correct and preferable decision for this Tribunal is to affirm the Decision. The Respondent does not press the argument about genuine reasons for a Category C licence.

8. For the reasons that follow, and having considered all the circumstances, I find that issuance of a licence to the Applicant would not be contrary to the public interest. The Decision should be set aside and the Applicant should be granted a Category A, B, and C firearms licence.

Relevant Legislation

9. The Firearms Act sets up a scheme to license people to possess and use firearms. Section 3(1) of the Firearms Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. The Act’s underlying principles also include improving public safety by imposing strict controls on the possession and use of firearms.

10. Section 3(2) sets out the objects of the Firearms Act, which include:

(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 supply of firearms.

11. Section 8 of the Firearms Act sets out categories of firearm licences. Category A licences are for air rifles, rimfire rifles (other than self-loading), shotguns (other than pump action, lever action or self-loading), and shotgun/rimfire rifle combinations. Category B licences are for muzzle-loading firearms (other than pistols), centre-fire rifles (other than self-loading), shotgun/centre-fire rifle combinations, and lever action shotguns with a magazine capacity of no more than 5 rounds. Category C licences are for self-loading rimfire rifles with a magazine capacity of no more than 10 rounds, self-loading shotguns with a magazine capacity of no more than 5 rounds, and pump action shotguns with a magazine capacity of no more than 5 rounds.

12. For both Categories A and B, the following applies:

The licensee is authorised to possess or use a registered firearm of the kind to which the licence applies, but only for the purpose established by the licensee as being the genuine reason for possessing or using the firearm.

13. A Category C license authorises the licensee to possess or use no more than one registered self-loading rimfire rifle with a magazine capacity of no more than 10 rounds, and no more than one registered shotgun to which the licence applies that is specified in the licence, but:

only for the purpose established by the licensee as being the genuine reason for possessing or using the firearm and only on land used for primary production that is owned or occupied by the licensee or that immediately adjoins that land…

14. Section 10 of the Firearms Act requires applications for licences to be made in an approved manner.

15. Section 11 of the Firearms Act is headed “General restrictions on issue of licences” and contains the following provisions:

(1)    The Commissioner may issue a licence in respect of an application, or refuse any such application.

…

(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

(b)    in the case of a person who has never held a licence …, the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and

(c)    the Commissioner is satisfied that the storage and safety requirements … are capable of being met by the applicant, and

(d)   the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State.

16. Section 11(4), (5) and (5A) set out grounds for the Commissioner to refuse a licence to an applicant, including concerns about their way of living, prior suicide attempts, “intemperate habits or being of unsound mind”, previous convictions for “prescribed” offences, pending apprehended violence orders, or criminal intelligence reports indicating risk to public safety or public interest. None of those grounds are applicable in the present case, but give context to Section 11(7), which is relevant, and provides as follows:

Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

17. Section 12 of the Firearms Act provides that a licence can only be issued if the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm. An applicant has a genuine reason if the applicant (a) “states that he or she intends to possess or use the firearm for any one or more of the reasons set out in the Table to this section” and (b) “is able to produce evidence to the Commissioner that he or she satisfies the requirements specified in respect of any such reason.”

18. For the reason of “recreational hunting/vermin control”, section 12 requires an applicant to:

(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.

19. For the reason of “primary production”, section 12 requires the applicant to:

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

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

20. Section 13 provides, with respect to Category B licences:

Subject to the regulations, the Commissioner must not issue a category B licence to any person unless the person, in addition to establishing a genuine reason for being issued with the licence, produces evidence to the satisfaction of the Commissioner that there is a special need for the person to possess or use a firearm to which licence category B applies.

21. Section 14 provides, with respect to Category C licences:

Except as provided by section 17A, the Commissioner must not issue a category C licence to any person unless—

(a)    the genuine reason established by the person for being issued with the licence is primary production (or such other genuine reason as may be prescribed by the regulations), and

(b)   in addition to establishing any such genuine reason, the person produces evidence to the Commissioner’s satisfaction that there is a special need for the person to possess or use a firearm to which licence category C applies, and

(c)   the person produces evidence to the Commissioner’s satisfaction that any such special need cannot be met by any other means (including by the authority conferred by a category A or category B licence).

Jurisdiction to Review the Decision

22. According to section 9 of the ADR Act and sections 28 and 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (“CAT Act”), the Tribunal has jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review.

23. Section 75(1) of the Firearms Act gives this Tribunal jurisdiction, as it allows a person to apply to the Tribunal under the ADR Act for an administrative review of “(a) the refusal of or failure by the Commissioner to issue a licence”.

24. In determining an application for administrative review, section 63 of the ADR Act provides that this Tribunal is to decide what “the correct and preferable decision” is having regard to “any relevant factual material, and any applicable written or unwritten law”. It is well established that the Tribunal is not restricted to 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 (see, e.g., Tannous v Commissioner of Police [2011] NSWADT 116 (“Tannous”) at [25]). In determining an application for administrative review of a decision, the Tribunal may decide to affirm the decision, to vary the decision, to set aside the decision and make a decision in substitution, or remit the matter for reconsideration by the administrator (ADR Act, section 63(3)).

25. Under section 38(2) of the 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.

26. The standard of proof that applies is the civil standard, that is, on the balance of probabilities. These are not adversarial proceedings and accordingly no burden of proof falls on either party. (Lee 2020) at [12]).

27. As is apparent from the introduction above, this is not the first time that Mr Lee has applied to this Tribunal for administrative review of decisions by the Respondent to review or revoke licenses. In 2014 he sought administrative review of seven decisions, leading to SM Walker setting aside three of the decisions and confirming four of them, in Lee v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 254 (“Lee 2015”). Then, in 2016, the Appeal Panel in Lee AP allowed an appeal, setting aside the decision in Lee 2015. In 2018, the Supreme Court of NSW refused leave to appeal from Lee AP (Lee v Commissioner of Police, NSW Police Force [2017] NSWSC 1849 (“Lee SC”). In August 2018, Mr Lee re-applied, unsuccessfully, for a firearms licence. Mr Lee sought administrative review by this Tribunal, and SM Montgomery, in Lee 2020, considered that despite Mr Lee’s good character, “more time would need to pass” before he could be confident of Mr Lee’s regard for public safety.

28. The Tribunal has recognised that, “a later Tribunal should exercise caution in reopening prior, considered rulings of an earlier Tribunal” and that “[o]rdinarily a later Tribunal should adopt the ruling of the earlier Tribunal.” (BY v Director General, Attorney General’s Department [2002] NSWADT 79 at [22] (“BY”)).

Issues for Determination

29. The Tribunal must decide whether the Respondent’s refusal to issue the Applicant’s Category A, B, and C licence was “the correct and preferable decision” having regard to “any relevant factual material, and any applicable written or unwritten law”.

30. There are three issues for determination.

31. First, is Mr Lee a “fit and proper person and can be trusted to have possession of firearms without danger to public safety or the peace” within the meaning of section 11(3)(a) of the Firearms Act?

32. Second, should the licence sought by Mr Lee be refused on the basis that it would be “contrary to the public interest” within the meaning of section 11(7) of the Firearms Act?

29. If the Tribunal agrees with the Respondent on either of the first two issues and finds that the Applicant is not a fit and proper person, and/or that granting the Applicant’s licence would be contrary to the public interest, the Decision under review would be affirmed and no other issues need to be considered.

30. Third, if the Tribunal finds that Mr Lee is a “fit and proper person”, and that granting a licence would not be “contrary to the public interest”, then before substituting a decision granting any licence, the Tribunal must be satisfied of the other conditions for a licence in the Firearms Act including those in Section 11(3) and the genuine reasons in Section 12. The Tribunal notes, however, that these elements are not contested by the Respondent.

Material before the Tribunal

35. The Tribunal has had regard to the following material provided by the parties.

Applicant’s Materials

36. The documentary material from the Applicant comprised:

1. NCAT Application filed on 15 March 2022, attaching the Respondent’s 21 February 2021 notice of refusal and statement of reasons following internal review;

2. The Applicant’s documents filed on 20 June 2022, attaching:

1. Annexure 1: References (from 14 individuals, namely the Hon. Robert Borsak MLC; Phil Donato MP; David Good, former police officer/highway patrol; Mayor Ken Keith OAM; Pastor Matthew Kennedy; Stephen Bowler SSA Board Member; Rev Stephen Gaut; Principal Glen Wescott; Dan Fredericks, Library Officer; Jarod Lee, son; Peter Beddie, Primary Producer, neighbour; Dan Weber, Councillor; Clarke McGhie, Owner Operator, Hunting Guide; William Brookes, Explosives Compliance Consultant);

2. Annexure 2: SafeWork NSW documents connected with Mr Lee’s fireworks business (including security clearance, pyrotechnic licence, licence to supply, licence to transport, statement of attainment in explosives competency, security clearance cancellation and reasons for reinstatement upon internal review);

3. Annexure 3: District Court transcript 2014/54362 (allowing appeals against severity of penalties imposed in relation to three offences committed in 2012 and 2013, finding good character);

4. Annexure 4: Local Court transcript 2014/54362 (accepting guilty pleas in respect of 3 offences, withdrawing charges in 3 others);

5. Annexure 5: Transcript Case Number 2019/00322211 (Lee 2020) (a portion of which was excluded from evidence, as noted below);

6. Annexure 6: Decision of this Tribunal in Lee 2020;

7. Annexure 7: Transcript of Police body worn video recording and Photos from 9 October 2021 Incident;

8. Annexure 8: Rates notices for the Applicant’s farmland; and

9. Annexure 9: Federal police check.

3. The Applicant’s Reply Submissions of 22 July 2022, attaching:

1. Annexure 10a: Firearms Dealers Licence and Conditions;

2. Annexure 10b: WorkSafe NSW Historic Licencing;

3. Annexure 10c: COPS Reports relating to fireworks;

4. Annexure 10d: Statement of witness and subpoena from incidents in 2008;

5. Annexure 10e: Statements from Jarod Lee and A Beggs concerning an incident on 3 June 2022;

6. Annexure 10f: COPS Report firearms audit;

7. Annexure 10g: Paintball documentation;

8. Annexure 10h: Load restraint guide;

9. Annexure 10i: SafeWork NSW fireworks permit documents;

10. Annexure 10j: Reference, Stephen Larsson, dated 1 July 2022; and

11. Annexure 10k: Mr Lee’s Opening Statement from Lee 2020;

4. The Applicant’s Opening Statement, dated 22 July 2022;

5. Email from the Applicant, dated 25 July 2022, attaching some additional pages for Annexures 10i and 10f.

Respondent’s Materials

37. The documentary material from the Respondent comprised:

1. The Respondent’s materials under section 58 of the ADR Act, filed on 3 May 2022:

1. Firearms Licence History (detailed further below);

2. Criminal History (detailed further below);

3. Traffic Record Report (detailed further below);

4. COPS Information (detailed further below);

5. Mr Lee’s re-application for a personal firearms licence of 24 August 2021;

6. Notice of refusal from the Respondent to Mr Lee dated 10 October 2021 and the email response from Mr Lee of 27 October 2022;

7. Internal review submission of Mr Lee dated 3 November 2021 and the Internal review statement of reasons dated 21 February 2022;

8. Relevant case law, including a copy of the judgment in Lee SC.

2. A USB containing body worn video footage taken by Senior Constable Tolley on 9 October 2021 filed with the section 58 materials.

3. The Respondent’s submissions of 18 July 2022, accompanied by a Statement of Senior Constable Joshua Tolley dated 8 June 2022 (“Tolley Statement”).

38. All of the above-referenced evidence was admitted to the record, without objection from either side, with the exception of portions of the transcript from proceedings in Lee 2020 that appeared from page 58 to 65 of Annexure 4 to the Applicant’s Submissions. It was agreed by the Tribunal and the Parties that those pages were generated from a sound recording of a private session of the hearing that had been inadvertently disclosed to the Applicant, and they would not form part of the record in the present proceedings. The Parties and the Tribunal agreed in any event that those portions of the transcript were irrelevant, and as such, any further materials submitted in relation to those portions were likewise irrelevant and would be given no weight.

39. The Respondent confirmed that there was no application to lodge confidential information under section 59 of the ADR Act and that there was no expectation of the hearing requiring a private session under section 49 of the CAT Act.

Summary of Prior Firearms Offences

40. The firearms licence history referenced at paragraph 37(1)(a) above included the following undisputed chronology of events related to the Applicant’s licensing and firearms related contraventions (recounted in Lee 2020 at [28]; also quoted in the Respondent’s Submissions):

(1)   On 7 August 1987, the Applicant was convicted in Broken Hill Local Court for possessing a firearm without holding a shooters licence and also driving while disqualified;

(2)   In November 2000, at the Roma Magistrates Court in Queensland, the Applicant was found guilty of six explosives offences and was fined $3,000.00.

(3)   On 27 April 2004, the Applicant was given a warning by Police for being in possession of unregistered firearms and being in possession of an expired licence.

(4)   On 27 May 2008, the Applicant had 21 paintball firearms seized, as he was in possession of an expired licence and had failed to have the licence reinstated.

(5)   On 25 April 2012, the Applicant posted a YouTube video of him and his son “shooting some 45s” for the Applicant’s 45^th birthday at an unapproved shooting range. The video showed the Applicant handing a .460 revolver to his son who fired it at suspended metal targets. The final round appeared to be with high-power ammunition that had been placed n the revolver by the Applicant without his son’s knowledge. At the time of the incident: (a) the Applicant’s son’s high calibre pistol had expired about 4 months previously; (b) the shooting took place at an unapproved shooting range; and (c) the .460 revolver being used was a prohibited pistol under section 4(C)(1)(a) of the Act.

(6)   Towards the end of the video, the Applicant fired at a birthday cake that appeared to contain some explosive. The Applicant’s conduct was considered by Police to be unsafe, reckless and in complete disregard of the obligations of licence holders;

(7)    In January 2013, the Applicant posted a YouTube video titled “M14 – now a prohibited firearm”. It shows the Applicant firing eighty rounds from the M14 at his unapproved shooting range. He commented that he is going to have to sell it as he cannot use it on his D class permit. The M14, being designed for military purposes, is a prohibited firearm under item 5 of schedule 1 to the Act;

(8)   In April 2013, Police seized paintball guns in the Applicant’s possession following the expiration of his paintball permit. He had retained possession of the paintball guns and continued to conduct a paintball business after the permits expired on both occasions;

(9)   In July 2013, during an electronically recorded interview, the Applicant informed police that he had approval from both the Local Police and the Firearms Registry to operate a shooting range on his property. The NSW Police found no records showing that the Applicant had made an application for approval of a shooting range or mobile gallery. The Applicant was charged with the following offences: (a) using an unauthorized prohibited firearm; (b) operating an unapproved shooting range; (c) using a firearm, namely a “M14 World War II rifle” and a .45 pistol, on an unapproved shotting range; and (d) selling a firearm to a person unauthorized to possess it.

(10)    In October 2013, following an audit of his firearms, the Applicant’s licences and permits were revoked. The Applicant’s applications for a High Calibre Pistol Permit and Theatrical Weapons Armourer Permit were refused. These decisions were affirmed on internal review and ultimately affirmed by the Tribunal’s Appeal Panel. The Supreme Court refused the Applicant’s request for leave to appeal.

(11)   In October 2014, at Forbes Local Court, the Applicant was found guilty, without conviction, of operating an unapproved shooting range and two counts of using a firearm on an unapproved shooting range.

41. Further details about the above incidents were set out in Lee 2015 and Lee AP.

Summary of Prior Criminal History

42. Separate from the firearms and licensing offences summarised above, and the driving offences summarised below, the only other criminal history of the Applicant relates to incidents (including charges for break enter and stealing) from over 35 years ago from the Broken Hill Children’s Court in 1984.

Summary of Prior Traffic History

43. The following summary relating to the Applicant’s history of traffic infringements dating back to May 1984 was also not in dispute (as recounted in Lee 2020 [31] and the Respondent’s submissions):

(1)   Negligent driving (two counts) [1984]

(2)   Drive whilst disqualified (two counts) [2011];

(3)   Failure to comply with conditions of provisional licence (5 counts) [1984, 1988];

(4)   Exceed speed limit by more than 10 km/h (three counts) [2009, 2010, 2016]

(5)   Exceed speed limit by not more than 15 km/h (six counts) [1990, 1994, 1995, 2003, 2004]

(6)   Exceed speed limit by more than 15 km/h but not more than 30 km/h (three counts); [1994, 2007, 2016]

(7)   Exceed speed limit by more than 20 km/h but not more than 30 km/h; [2009]

(8)   Exceed speed limit by more than 30 km/h (two counts) [1984, 1995];

(9)   Not wear seat belt while driving (two counts) [2006, 2007];

(10)   Drive contrary to stop sign [1997];

(11)   Disobey traffic lights (two counts) [2003, 2004];

(12)   Drive using hand-held mobile device (two counts) [2009, 2018]; and

(13)   Not keep left [2009]

44. It was also noted in Lee 2020 [32] that the Applicant’s driver’s licence had been suspended on a number of occasions as a consequence of some of these contraventions (though all of these were more than a decade ago).

Summary of More Recent Traffic Contraventions

45. By the time that Mr Lee applied for his licence afresh in July 2021, he had managed to get back all his demerit points. However, as noted above, in October 2021, at a random breath testing stop in Parkes, Police noticed an unsecured load in the tray of the Mr Lee’s vehicle and observed that the Applicant’s number plate was partially obscured by a trailer plug attachment.

46. Senior Constable Joshua Tolley described the incident as follows:

5.    Me Lee submitted to a breath test which produced a negative result.

6.    I asked Mr Lee what he had been doing before pulling over, as his driving appeared to suggest that he may wish to avoid stopping at the RBT.

7.    I noticed an unsecured load, being two large four-wheel drive mud tyres in the tray of the 4 x 4 vehicle. Mr Lee said that he would secure the load and proceeded to do so.

8.    I returned to the Police vehicle to check Mr Lee’s registration and licence status.

9.    On returning to Mr Lee’s vehicle, I observed that the number plates on the rear of the vehicle were obscured by an attachment used to tow a trailer. Even at a distance of 2 metres, the number plate could not be correctly identified. The correct registration was not able to be obtained until the driver of the vehicle removed the attachments from the obscured number pla[t]es at my request.

10.    In my view, Mr Lee appeared to be very anxious and asked me a number of times what I was doing and if everything was ok. I explained the issues with his vehicle and that his number plate needed to be visible from 20 metres away. After undertaking registration/licence status checks I returned to Mr Lee’s vehicle and we had a conversation with words to the following effect:

I said:   You’re going to get a ticket in the mail […] for one of the two offences.

Mr Lee said:   Can I talk to you with that on [Body Worn Video]? Is there any way you can not give me a fine? It’s going to be a real big issue for me in the long run. I’ve had issues with my gun licence.

I said:      This won’t affect your gun licence.

Mr Lee said:   Yes it will.

I said:      How?

Mr Lee said:   I’ve fought them in court. Do you know who I am or not? I’m good friends with [I think you’re friends with]… anyway. I fought them in the Supreme Court. The last time in the Court case they disregarded everything the Firearms Registry said except he said I had a bad driving record. Eight months ago I finally got all my points back. … The Magistrate said that as long as you have no more incidents, you can get your firearms licence back. [so] I’ve been waiting eight years for this. If I lose my points, the guys [at the Registry] will probably use that against me to stop me getting my licence and I really need it for my [work on the] farm. I feel sick right now. Is there anything else you can do? [something else I can do?]

I said:   You’re going to get at least one infringement.

Mr Lee said:   Is there any way you [I] can do something else?

I said:   No. I don’t know what you’re suggesting to me, but I’m certainly not open to it.

Mr Lee said:   No no no [sorry] I’m not even remotely suggesting that. [Sorry, no, no, no] Both of those things I didn’t deliberately do. Is there any allowance?

I said:   There is, but I’m choosing to take action.

Mr Lee said:   Do they include points?

I said:   They both include points.

Mr Lee said:   Is there any way… is there some other penalty I can get?

I said:   That’s what is going to happen, you’re going to get a ticket in the mail.

Mr Lee said:   Can you [please] consider this?

I said:   I have considered it, and there were two offences. That’s all, have a good day.

Mr Lee said:   Please man.

47. The above description of the interaction between Senior Constable Tolley and Mr Lee is consistent with Mr Lee’s own description of the incident and the video recording of the incident which the Tribunal has watched. Some minor discrepancies between the Tolley Statement and Mr Lee’s own transcription of the video are marked above in square brackets.

48. Senior Constable Tolley added in his statement, that he found Mr Lee’s requests to turn off the body worn camera, “along with behaviour towards me regarding the action taken, to be unusual and inappropriate.”

49. Mr Lee’s photographs and the video footage show that the trailer plug obscured a letter of the number plate, and that the mud tyres were visible by a few centimetres above the tray. As soon as the police officer pointed these out to Mr Lee, he removed the trailer plug and secured the tyres.

50. Mr Lee received a traffic infringement notice for using a “Class A vehicle number plate obscured/defaced”, for which he received a $469 fine and 3 demerit points. He filed a request for leniency, but it was unsuccessful. He was not issued with an infringement notice in respect of the load in the trailer.

51. In February 2022 a minor defect notice, requiring no further investigation, noted that the lift of one of Mr Lee’s vehicles exceeded 50mm and there was a non-compliant bull bar and muffler. Mr Lee had this repaired immediately.

Hearing

52. At the hearing on 26 July 2022, the Applicant appeared via video to make submissions and to answer questions from the Tribunal. He represented himself.

53. No witnesses were called by the Respondent. The Respondent’s legal representative, Ms Norquay of Maddocks, informed the Tribunal that she was prepared to make Senior Constable Tolley available for cross-examination. The Applicant said he did not wish to cross-examine Senior Constable Tolley. The Tribunal explained that would mean that the factual account of Senior Constable Tolley was effectively unchallenged and the Applicant confirmed that he did not wish to question Senior Constable Tolley. It was noted that the Tribunal had the video recording and transcript of the interaction between the Applicant and Senior Constable Tolley on 9 October 2021. Mr Lee was content to rely on his submissions about the weight and meaning to be given by the Tribunal to the Tolley Statement.

First Issue to be Determined: Is Mr Lee a Fit and Proper Person under Section 11(3)(a) of the Firearms Act?

The Test for Fit and Proper Person

54. Under section 11(3)(a) of the Firearms Act a licence must not be issued unless 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”.

55. Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence (Lee 2020 at [15]-[21]).

56. The issue is to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Toohey and Gaudron JJ held, at 380, that:

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

57. Chief Justice Mason stated in the same case that

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

58. In the context of the Firearms Act, the Tribunal has held that fitness and propriety must be considered in the context of at all times ensuring public safety (Lee 2020 at [17]). The Administrative Decisions Tribunal in Nguyen v Commissioner of Police [2007] NSWADT 16 stated:

The fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety. In my opinion Parliament has made this clear with the additional words in s. 11(3)(a) of “…and can be trusted to have possession of firearms without danger to public safety and the peace.” That is, s. 11(3)(a) of the Act requires the Commissioner to determine the fitness and propriety of an applicant for a licence by having regard to the applicant’s conduct and whether that conduct is such that he can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace.

59. In Haining v Commissioner of Police, NSW Police Service [1999] NSWADT 6 at [41], O’Connor DCJ observed that “[whether] a person is ‘fit and proper’ to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry and the public policy objectives leading the legislature to regulate the industry.” The Applicant’s fitness and propriety to hold a licence under the Act are therefore to be considered in light of the legislature’s purpose of minimising the high risks associated with firearms, addressing related public safety issues, through a licensing regime and the notion that firearm ownership and use is a privilege and not a right.

60. The Tribunal notes that when the Tribunal most recently considered whether the Applicant was a fit and proper person in Lee 2020, SM Montgomery noted:

81. The Applicant’s fitness and propriety has been brought into question as a result of his long history of offences relating to the use of firearms as well as other offences. However, it is my view that sufficient time has passed for limited weight to be given to those offences.

82. It is not in dispute that the Applicant was charged in relation to a number of firearms related offences in 2013 or that he was found guilty of a number of the offences in 2014. It is relevant that no conviction was recorded. I accept that the Forbes Magistrate was satisfied that the Applicant was a person of good character.

83. I note that the Applicant has previously sought review of the refusal to grant a firearms licence. It is not in dispute that the refusal was affirmed.

61. SM Montgomery also found that “no criticism could be made of any citizen who exercises their legal rights as the Applicant has done” in respect of his earlier applications for administrative review and appeals, which constituted an “irrelevant consideration”. SM Montgomery likewise found irrelevant previous expressions of Mr Lee’s political opinions. It was relevant to SM Montgomery that the Applicant had not been charged with any recent firearms offences and that he had expressed contrition in regard to his prior offences. SM Montgomery accepted Mr Lee’s preparedness to comply with the Act and conduct demonstrating awareness and compliance with the Act (Lee 2020 at [83]-[86]. SM Montgomery concluded on fitness and propriety that:

87. I am satisfied that the Applicant acknowledges the seriousness of the matters that gave rise to the licence and permit revocations. I also accept that the Applicant is a person of good character. In my view, sufficient time has passed since the most recent firearms offences for me to be satisfied that the Applicant is a fit and proper person to hold a category AB firearms licence.

The Respondent’s Submissions on Fit and Proper Person

62. In the present case, despite SM Montgomery’s findings in Lee 2020, the Respondent “maintains concerns regarding the Applicant’s conduct, particularly in the moments leading up to and during” the 9 October 2021 incident referring to the following from the Tolley Statement:

1. The Applicant was asked what he had been doing before pulling over, as his driving appeared to suggest that he may wish to avoid stopping at the RBT;

2. The Applicant attempted to cause Senior Constable Tolley to reconsider his decision to issue a traffic infringement notice. The manner in which the Applicant addressed this issue was considered to be unusual and inappropriate;

3. The Applicant twice asked Senior Constable Tolley to turn off his body worn video;

4. The Applicant asked Senior Constable Tolley if he knew who he was and who he was “friends with” but then did not complete the sentence.

63. The Respondent submits that this conduct “suggests that he unduly attempted to influence the police officer in the execution of his duty” and that this is a relevant consideration as to whether the Applicant is a fit and proper person for the purpose of possessing and using firearms. This would, in the Respondent’s view, constitute evidence going against the fitness and propriety to hold a firearms licence that must be weighed by the Tribunal against any evidence of the Applicant’s good character (which, the Respondent acknowledged, was supported by the Applicant’s positive character references).

64. The Respondent submits that in these circumstances, the Tribunal should be satisfied that the Applicant is not a fit and proper person to hold a firearms licence. At the Hearing, the Respondent it specifically relied on the 9 October 2021 Incident, but that the Incident was to be viewed against the background of Mr Lee’s total earlier record.

The Applicant’s Submissions on Fit and Proper Person

65. The Applicant maintains that he is a fit and proper person to hold a gun licence. His submissions in this respect related to (1) the positive findings on his fitness and propriety in Lee 2020 and further efforts to improve since Lee 2020; (2) the characterisation and context of his conduct during the 9 October 2021 Incident; (3) evidence of his good character; (4) evidence of his understanding of the responsibilities of holding a firearm licence.

66. First, he recalls that SM Montgomery actually made positive findings with respect to him being a fit and proper person to hold a firearms licence (Lee 2020 at [81] to [88]). He fully understands why, on the public interest element in Section 11(7) of the Act (discussed below), the SM Montgomery nevertheless found he had not exhibited appropriate respect for the importance of road safety regulations (the Tribunal deals with this element further below). He notes his “appalling past driving record” and states that he is now “a different driver and person” than he was some years ago. Some of this, he says, has to do with maturity and responsibility as a father, husband and grandfather of nearly 12 grandchildren. He points to his recent improvement as a driver and that he had managed to go three years since the last NCAT application without losing any demerit points. He says, with respect to SM Montgomery’s comments in Lee 2020 that he has taken these “on board and I have changed many of my habits as to not break the law again”. He points to using Bluetooth in all his vehicles, using cruise control where possible, checking his seatbelt even on the farm, leaving more time to drive so as to no get impatient and accidently speed, and take regular stops. He checks trailers more regularly and inspects all his vehicles on a regular basis and fixes faults at the earliest possible time. He waited until he received all the points back on his driver’s licence before he reapplied for a firearms licence.

67. Second, with respect to the 9 October 2021 Incident, Mr Lee comments that the offence itself (having a trailer plug connection partially interrupt the view of the number plate) was “unintentional and did not pose a risk to public safety”. He said it is not an example of intentional or malicious disregard of the law and that he has since had the plug adjusted by an auto electrician so the issue is resolved and will never happen again. He does acknowledge that he was the operator of the vehicle and ultimately responsible and should have noticed it himself and dealt with it sooner. He expresses hope that his “recent perfect driving record carries some weight as I hope the same reflects positively … as it relates to my respect and willingness to abide by regulatory provisions”. He also points out that none of his offences have been at the “high end” of public safety issues like driving under the influence of alcohol.

68. Mr Lee strongly denies the suggestions that he improperly sought to evade the RBT or influence the police officer. He explains that he remembered he had to pick up some medicine for his sick cow and turned around to head back past the RBT to get to the farm centre. He was not avoiding the RBT stop. He tested negative on the RBT. He explained that he became extremely nervous and anxious as he “knew anything that may happen next would affect [his] chances of obtaining [his] firearms licence again”. He tried to relay that to the police officer, but it made the situation worse. The police offer also disagreed it would affect his firearms licence. Mr Lee says at no time did he suggest some type of bribe and he finds this accusation ridiculous (noting all police interactions are video recorded) and it is not part of his culture to bribe police officers. At the hearing, when the Tribunal asked him why he asked the police officer if there was anything else he could do, Mr Lee explained that he was hoping there might be an alternative to losing points, like taking the vehicle directly to the mechanic to fix it. Mr Lee also refers to his character reference from David Good, a retired police officer of over 30 years who notes that in his previous role as a highway patrol officer had stopped thousands of motorists and “witnessed the full spectrum of reactions”. Rarely did he think any of them were actively attempting to influence him in his duties – many were “nervous, upset, embarrassed, or exhibiting a whole host of other benign human reactions”.

69. Third, Mr Lee has supplied a number of character references in support of his application. These include community leaders, peace keepers, retired police officers, educators, ministers of religion, farmers and politicians, all who attest their opinion that Mr Lee could now be trusted with a firearms licence.

70. Fourth, with respect to his appreciation of the privilege of firearms use, Mr Lee submits that he has come to realise the community expectations in relation to firearm usage, storage and ownership has changed considerably, as have his. He appreciates that the Firearms Registry considers the lax attitude to firearms regulation as unacceptable and even the slightest infringement of the law is considered serious. He submits that he now has a much better understanding of the legislation as for the past 9 years he has needed to read and learn a great deal in order to prepare himself for various applications and proceedings. He keeps up with ongoing changes to legislation and intends never to make the slightest mistake in the firearms law and regulations. He confirms that he still has safe storage facilities and recalls he has passed security clearance for explosive licences in connection with his fireworks business (and at the hearing the Respondent acknowledged he was authorised to sell fireworks to authorised buyers). He accepts that his reckless behaviour and attitudes of many years ago needed serious adjusting. He thus requests the Tribunal to consider that he has demonstrated a preparedness to understand and comply with his legislative responsibilities.

The Tribunal’s Consideration on Fit and Proper Person

71. The Tribunal finds that Mr Lee is a fit and proper person within the meaning of section 3(a) of the Firearms Act.

72. The Respondent has noted that this Tribunal previously found Mr Lee to be a fit and proper person (in Lee 2020). The Respondent accepts that, “a later Tribunal should exercise caution in reopening prior, considered rulings of an earlier Tribunal” and that “[o]rdinarily a later Tribunal should adopt the ruling of the earlier Tribunal.” (BY at [22]). The Respondent has thus focused on the 9 October 2021 Incident as evidence that Mr Lee is not a fit and proper person.

73. Before making findings on the 9 October 2021 Incident, the Tribunal notes that Mr Lee’s good character is not in question. The Respondent accepts that there are over a dozen references from members of the community, including community leaders, former police officers, and religious leaders, who attest to Mr Lee being an honest, well-regarded and upstanding citizen who has contributed to the Parkes community as a businessman, family man and active member of the Baptist Church community. Most referees were aware of his prior infringements. The Tribunal also notes that the District Court took account of Mr Lee’s good character in 2015 and the magistrate in Forbes similarly accepted his good character in 2014.

74. The Tribunal also accepts that despite his prior driving history and firearms offences dating to the 1980s, Mr Lee has demonstrated a commitment to improving his compliance with both firearms regulations and the traffic safety regime. The Tribunal accepts that in the period since his firearms were cancelled almost a decade ago, he has made efforts to familiarise himself with the legislation and regulations and takes compliance very seriously, a point accepted also by the Tribunal in previous decisions.

75. As for respect of road safety laws, the Tribunal accepts that Mr Lee has also, even since Lee 2020, made a substantial improvement. He has described the steps he actively takes to comply with vehicle safety (see paragraph 66 above). These efforts paid off. Up until the 9 October 2021 Incident, had successfully managed to avoid incurring further demerit points. His previously “lax attitude” has also improved. He has taken on board the remarks in Lee 2020 about respecting traffic regulations and acknowledging the link between showing respect for one public safety regime (driving) with respect for other public safety regimes (firearms). He has not only expressed that shift in attitude through his words in his written submissions to the Tribunal and answers to questions during the hearing, but has also demonstrated it in his actions, as described above and as evident in his three years without clear of demerit points.

76. The primary point of contention for the fit and proper person test remains the 9 October 2021 Incident. That has two aspects – the nature of the infringement itself, and the insinuations about Mr Lee’s comments to the police officer.

77. With respect to the infringement itself, the Tribunal does not find the trailer plug placement to be of such a serious concern as to justify a finding that he is not a fit and proper person to hold a firearms licence. The Tribunal has seen the photographs and watched the video of Mr Lee immediately removing the trailer plug. Mr Lee also states that he subsequently had it checked and adjusted by a mechanic. Likewise, the evidence showed that the trailer load was immediately covered, no fine was issued for the trailer load, and Mr Lee has provided the load restraint guide from the transport commission. The Tribunal accepts that the trailer plug and load issues on 9 October 2021 were unintentional, caused no harm to others, and were addressed immediately by the Applicant. Furthermore, the Applicant takes responsibility for his action and appreciates that both could potentially have impact public safety or cause harm, and assures that he carefully checks his vehicles now for compliance.

78. As for the suggestion that Mr Lee improperly tried to influence the police officer, the Tribunal rejects the Respondent’s characterisation of the 9 October 2021 Incident as fanciful. The Tribunal has read the Tolley Statement and the transcript from the encounter, and has watched the body worn video, and considered Mr Lee’s explanations in response to questioning from the Tribunal. The Tribunal accepts that Mr Lee was anxious and nervous during the encounter. This was because he had recently filed his reapplication for a firearms licence after a 9 year wait and after finally reaching no demerit points on his driver’s licence. He was worried that those efforts could be jeopardised by any possible new infringement recorded. He expressed that anxiety to the police officer who dismissed his concerns. The reason he asked if he knew who he was or if he was friends with others who might know him was to provide context for that anxiety. It was known to some in the community that Mr Lee had been trying to get his firearms licence back, and the Tribunal finds that Mr Lee was simply trying to ascertain if the police officer was already aware of that background so that he could understand why he was so anxious about losing any points. When Mr Lee asked if there was anything else that could be done, the Tribunal finds he did not mean to offer a bribe, but rather to see if other action, such as a caution or going straight to the mechanic, could be done instead of incurring demerit points. Mr Lee denied straight away to the officer that he was trying to do anything inappropriate, when he said “no, no, no …I’m not even remotely suggesting that”. In the Tribunal’s view, a finding that Mr Lee was seeking to influence the officer improperly would be inconsistent with the evidence, including as to Mr Lee’s character and the video of the encounter itself. The video actually shows that despite his anxiety, Mr Lee was reasonable, polite, followed instructions and immediately took steps to rectify the issues.

79. The Tribunal accordingly does not consider the 9 October 2021 Incident to impact negatively on its assessment of Mr Lee’s fitness and propriety under section 11(3)(a) of the Firearms Act.

80. The Tribunal further notes that the Applicant has no history of violence, drug or alcohol abuse or mental health issues. He has expressed contrition for his past behaviour and a genuine commitment to improve his habits and comply with regulatory regimes aimed at public safety.

81. Accordingly, the Tribunal confirms that it is satisfied under Section 11(3)(a) of the Firearms Act that Mr Lee is a fit and proper person.

Second Issue to be Determined: Would Issuing a Licence to Mr Lee be contrary to the public interest under Section 11(7) of the Firearms Act?

The Test for Public Interest

82. Having established that Mr Lee is a fit and proper person, this case now turns on the “public interest” test in Section 11(7) of the Firearms Act. Section 11(7) of the Firearms Act provides that, despite any other provision of the Act, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of a licence would be contrary to the public interest.

83. The expression “public interest” is not defined in the Firearms Act. The Tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act (Lee 2020 at [13]). The underlying principles of the Act as stated in section 3(1) stress the overriding need to ensure public safety.

84. The “public interest” factor allows a consideration of 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 (Constantin v Commissioner of Police [2013] NSWADTAP 16, Lee 2020 at [23]).

85. Public safety is to be given paramount consideration, and the public needs to be confident that those who are afforded the privilege of a firearms licence will comply with the legislative requirements. Where there is the possibility of a threat to public safety, the public’s right to safety must outweigh an individual’s personal interest and privilege to possess and use a firearm (Hill v Commissioner of Police, NSW Police Service [2002] NSWADT 218 at [24]).

86. In an oft-cited passage referenced by the Respondent, Hennessy DP in Ward v Commissioner of Police [2000] NSWADT 28 (“Ward”) 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. Ward was a case on the “fit and proper person” test, but the formulation has been held to apply to the public interest test under section 11(7) as well (Masterson v Commissioner of Police [2017] NSWCATAP 206 at [130]). Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police [2013] NSWADT 5 at [7], that Ward itself had set aside a decision to revoke a firearms licence, because the Tribunal was satisfied that despite the fact that the applicant had assaulted his partner, he was a fit and proper person to have a firearms licence. Hennessy DP recalled that “[t]he ‘virtually no risk’ comment was made in the context of the ‘fit and proper person’ test” and was not a substitute for the relevant tests set out in the Firearms Act.

82. Other cases have pointed out that 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 [2017] NSWCATAD 97 at [64]-[66]).

83. In determining whether the issue of a licence is contrary to the public interest, the Tribunal is entitled to take into account criminal conduct, whether or not that conduct has resulted in an individual being charged or convicted of criminal offences, or whether the particular offences charged have not been proven or have been dismissed (Joseph v Commissioner of Police [2017] NSWCA 31 at [62]–[64] (“Joseph”)). It is the conduct, rather than the conviction, that is of concern to the Tribunal (Esterman v Commissioner of Police [2014] NSWCATOD 70 at [30] (“Esterman”).

84. In relation to prior violations of the Firearms Act, the Appeal Panel in Lee AP stressed at [70] that the Tribunal should take into account “all the established infringements and come to a view on the totality of the evidence.” That is so even if prior contraventions relate to one type of licence when considering whether another type of licence should be revoked (Lee AP at [25], citing Hijazi v Commissioner of Police, NSW Police Force [2015] NSCATAP 82 (“Hijazi”)). The Appeal Panel in Lee AP noted with respect to Mr Lee, that:

115. Even if most of the breaches relate to the dealer and theatrical licenses and permits, and those relating to the personal licence and permit are less serious, Mr Lee has demonstrated by his conduct since at least 2000, that he is unable or unwilling to comply with the ‘strict controls on the possession and use of firearms.’ [as required by section 3(1)(b) of the Act].

90. The Tribunal has recognised that there is a community expectation that those who are afforded the privilege of a firearms licence have maintained a lawful lifestyle and can demonstrate that they will be able to comply with the legislative requirements. (Madziala v Commissioner of Police, NSW Police Force [2021] NSWCATAD 269 at [36]).

91. This expectation extends to other areas of public safety regulation, including traffic violations. It is well established that an applicant’s history of repeated breaches of traffic laws and regulations is a relevant consideration in regard to firearms licensing issues. For example, in Tannous at [37], Huntsman JM was satisfied that, when he viewed the Applicant’s conduct as a whole, it was not in the public interest for him to hold a firearms licence. He stated:

I considered that the Applicant’s repeated breach of traffic laws and regulations aimed at ensuring public safety (in particular, the breaches of the requirement that drivers of motor vehicles be licensed…) indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety and I consider it relevant that the Applicant has failed to comply with requirements of the firearms licensing scheme in relation to firearms storage, and that this follows on his conduct of repeatedly breaching traffic laws and regulations aimed at public safety. In recent years the Applicant has been before the courts for the breaches of regulations and laws aimed at public safety in relation to his driver’s license, and has also been before the court for possessing prohibited drugs. I am satisfied that the evidence in this matter indicates a course of recent conduct by the Applicant which has shown disregard for laws which protect public safety and a lack of compliance with the law generally.

92. In Keegan-Jaques v Commissioner of Police [2017] NSWCATAD 145 (“Keegan-Jaques”), Scahill SM stated:

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.

…

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.

93. In Lee 2020, Montgomery SM emphasised:

97. The traffic laws and the firearms regulatory scheme are both aimed at ensuring public safety. A disregard for a regulatory scheme aimed at ensuring public safety is a relevant consideration in regard to a determination of whether or not it is contrary to the public interest for the Applicant to hold a firearms licence. Given the extensive history of traffic infringements, I cannot be satisfied that similar conduct will not be repeated or that he may similarly disregard aspects of the firearms regulatory scheme.

94. In light of these understandings of the “public interest” test and the relevant legislation, the Tribunal now sets out the Parties’ position on the application of the public interest test to this case. It will then consider, on the totality of the evidence before it, whether it would be contrary to the public interest for Mr Lee now to be issued with a firearms licence.

The Respondent’s Submissions on Public Interest

95. Applying the above-cited legal authorities to the facts of the present case, the Respondent submits that it would be contrary to the public interest for Mr Lee to be granted a firearms licence.

96. The Respondent maintains that it is necessary to consider all conduct, viewed individually or collectively, to assess whether it is not in the public interest for the Applicant to have a personal firearms licence. In this connection, the Respondent refers to all of the Applicant’s prior contraventions of the Firearms Act (including for categories other than a personal firearms licence) as well as his traffic history.

97. The Respondent points out that the Applicant’s infringements relate to “the full array of firearms licences” he has held and that his misconduct with respect to firearms and explosives stretches close to two decades, and should therefore be a significant factor in the Tribunal determining whether it is in the public interest for the Applicant to be issued with a firearms licence. The Respondent referred to the following remarks of SM Montgomery in Lee 2020 at [95]-[96]:

Prior conduct can provide some guidance but it is impossible to say with certainty how any individual will behave in the future. The Commissioner is properly concerned that the Applicant’s serious failures in regard to his use of firearms may be repeated…. I share that concern but my concern is based on the Applicant’s traffic record.

98. Although SM Montgomery focused on the traffic record, the Respondent maintains that the Applicant’s numerous contraventions of firearms regulations also remain relevant to whether it is contrary to the public interest for the Applicant to be granted a firearms licence. At the hearing, the Respondent stated that its focus was on the more recent traffic infringements and the 9 October 2021 Incident, but that the prior conduct of an applicant remains relevant always to decisions on firearms licences.

99. The Respondent submits that the offences for which the Applicant was issued with an infringement notice and warning at the 9 October 2021 Incident were serious and risky. The Respondent recalled that SM Montgomery had said in Lee 2020 at [100] that “The Applicant can apply for a new licence at any time and it may well be that with the passage of more time, absent any further incidents, the Applicant will be able to demonstrate that the licence should be granted.” The Respondent pointed out that the Applicant has failed to prove an absence of further incidents. Indeed, in addition to the 9 October 2021 incident, in February 2022 he received a vehicle defect notice in relation to a lift exceeding 50mm, non-compliant bull bar and muffler.

100. The Respondent concludes that looking at the Applicant’s conduct as a whole, including the firearms offences and his “extensive history of traffic infringements”, Mr Lee has demonstrated a disregard for public safety and his own safety. The Respondent argues that the Tribunal could not conclude that there is virtually no risk in granting him a licence.

The Applicant’s Submissions on Public Interest

101. The Applicant disagrees that it would be contrary to the public interest to issue him with a licence.

102. With respect to firearms, he points out that the last contravention took place over nine years ago in 2013 and the earliest contravention was 18 years ago in 2004. While the chronology of prior contraventions was undisputed, he provided a detailed commentary and explanations of the context for each. For example, he described the house move that he was undergoing when the paintball licence expired in 2008; and his reasons for believing that his son held a licence to have a high calibre pistol back in April 2012.

103. In the nine years since his firearms licences were revoked, he states that he has learned a great deal to understand the legislation better. He appreciates that those trusted with the authority of a firearms licence must understand the legislation and he makes efforts to keep up with ongoing changes. He further notes that he still has safe storage facilities. He also is well aware of the importance of absolute compliance with the explosives licences used for his fireworks business, and provided evidence of his recent licences. He noted that like the firearm licensing system, the licensing system for the fireworks business is regulated with the objective of ensuring public safety.

104. On traffic violations, as stated above with respect to the fit and proper person test, Mr Lee recognises his poor driving record stretching back to when he was a young driver. Some of the offences happened in the 1980s when he was a provisional driver. He says “there is no question that my position on compliance with the law and public safety has significantly altered from when I was a provisional driver and before me becoming a father and grandfather.”

105. He says that some time ago he made a “conscious decision to be a better driver” and that this is “reflected in the fact that I did achieve the reinstatement of all of my demerit points as a result of the commitment to this decision.” He also pointed out that this requires a continual commitment due to the extraordinary number of kilometres he travels annually as part of his business.

106. With respect to the defect notice in February 2022, Mr Lee explained that he has owned the vehicle in question for over 3 years and had it registered and checked 3 times. Each time the vehicle passed the test, and he was unaware of anything wrong with it. The muffler had become loose the night before, so he fixed it the best he could, with a tie down, as they were on the road 600 km from home, as an interim solution until he could get back and have it repaired. He has taken steps to rectify the issue with the bull bar.

107. At the hearing, Mr Lee acknowledged expressly to the Tribunal that driving regulations are aimed at public safety and he appreciates how showing respect for that regulatory regime is relevant to the firearms licensing regime which is also based on public safety concerns. This connection was less clear to him at the time of his administrative review application before SM Montgomery.

The Tribunal’s Consideration of Public Interest

108. The Tribunal now considers whether on the totality of the material, it would be contrary to the public interest to issue Mr Lee as a rural property owner with a category A, B, and C licence for hunting, vermin control and primary production.

109. Both Parties have referred the Tribunal to earlier decisions in which findings have been made about Mr Lee, and both have indicated that this Tribunal should ordinarily adopt the ruling of an earlier Tribunal (citing BY at [22]).

110. On the one hand, the Respondent urges the Tribunal to adopt the same ruling as the Appeal Panel in Lee AP, which found:

114. The Tribunal concluded … that Mr Lee’s “record of repeated failures to renew licences and permits, the clear and substantial contravention involved in the operation of an unapproved firing range and his other varied infringements lead to the conclusion that general deterrence requires the application of a sanction in this case”. The Tribunal reasoned that public confidence in the licencing scheme will be maintained if “those whose conduct does not meet the required standards” are not permitted to hold a firearms licence or permit.

115. Even if most of the breaches relate to the dealer and theatrical licences and permits, and those relating to the personal licence and permit are less serious, Mr Lee has demonstrated by his conduct since at least 2000, that he is unable or unwilling to comply with the “strict controls on the possession and use of firearms”: Firearms Act, s 3(1)(b).

116. Mr Lee operated an unapproved shooting range between April 2012 and July 2013. The Tribunal described that item as a “clear and substantial contravention”. In April 2012… he used a .45 rifle and a number of .45 hand guns to fire at targets and a birthday cake containing explosives. He then handed a revolver to his son Jarod who fired five rounds at targets. The Tribunal did not accept Mr Lee’s explanation that he thought he was lawfully able to test firearms on his testing facility under his dealer’s licence. The Tribunal did accept Mr Lee’s evidence that he believed at the time that his son’s pistol permit was current. Ultimately, Mr Lee admitted the contraventions.

117. Another incident which the Tribunal found counted against Mr Lee was the sale as a firearms dealer of a prohibited firearm to himself when he had no permit or licence for it. The Tribunal found that Mr Lee completed that transfer after being told that it was impermissible and then posted a YouTube video of himself firing it, under the title, “M14 – Now a Prohibited Weapon”. Despite submitting to the Tribunal that he was purporting to conduct “testing” for the purposes of selling M14, he described his actions in the video as a “review”...

118. Mr Lee was in possession of firearms for paintball without a paintball games permit on two occasions – from March to June 2008 and again from March to April 2013. The Tribunal held that these incidents demonstrated a “casualness of attitude towards compliance with obligations as a permit holder” … and a “cavalier attitude to the regulatory scheme”….

119. … His infringements relate to every licence and permit he has held. They have taken place over a period of at least 13 years, despite at least one warning. They were not isolated or insignificant events. Even if there were no actual instances of dangerous conduct, Mr Lee has breached the legislation and exhibited a lax attitude over many years. In order for public confidence in the regulatory scheme to be maintained, the Commissioner’s decisions should be affirmed.

111. On the other hand, the Applicant refers to the more recent findings of SM Montgomery who was convinced that Mr Lee is a fit and proper person to hold a firearms licence, and whose concerns as to the public interest were less focused on historic failures in regard to his use of firearms, but rather centred on recent traffic violations and Mr Lee’s apparent disregard for a regulatory scheme aimed at ensuring public safety on the roads (Lee 2020 at [96]-[97]). SM Montgomery expressed the view that:

98. More time would need to pass before I could be confident that the Applicant has demonstrated sufficient regard for public safety and his own safety, as well as sufficient regard for regulatory schemes aimed at ensuring public safety. Notwithstanding the Applicant’s good character, given the seriousness of the Applicant’s record and taking into account all relevant considerations, in my view it is not in the public interest for him to hold a firearms licence at this time…

100. The Applicant can apply for a new licence at any time and it may well be that with the passage of more time, absent any further incidents, the Applicant will be able to demonstrate that the licence should be granted.

112. The two decisions (Lee AP) and (Lee 2020) are not inconsistent. Indeed, SM Montgomery acknowledged the seriousness of Mr Lee’s prior convictions. He also noted that it was relevant the Applicant “has not been charged with any recent firearms offences” (at [86]). SM Montgomery recognised in 2020 that with “the passage of time”, the absence of incidents, and a showing by the Applicant of an increased regard for public safety and for his own safety, that a new licence might be granted.

113. It falls on the Tribunal now to consider whether in consideration of all the Applicant’s prior conduct, including the most recent, whether sufficient time has passed, whether his attitude has improved, and whether concerns about the public safety and public confidence in the administration of the licensing system have been sufficiently addressed.

114. First, the Tribunal considers the Applicant’s previous undisputed conduct in relation to firearms. While some of these infringements occurred up to 18 years ago and some related to activities which are not subject of the present application (such as paintball games, operating a shooting range, dealing in firearms) and for some of the offences, no convictions were recorded, the Tribunal nevertheless takes them seriously. All prior offences relating to the Firearms Act are relevant to the assessment of whether refusal of a licence is contrary to the public interest (Hijazi, Lee AP). Conduct that did not result in conviction of criminal offences can still be taken into account in assessing public interest (Joseph at [62]-[64]; Esterman at [30]).

115. The Tribunal considers that the prior conduct is relevant insofar as it may indicate the risk of future disregard for the regime, and also insofar as it may dilute public confidence in the strict licensing system if applicants with a record of infringements are allowed to be licensed.

116. The seriousness and extent of the prior firearms infringements have been acknowledged by Mr Lee. He has not only expressed but demonstrated a commitment to familiarising himself with the firearms legislation and taking steps to ensure he is not in breach of it again. This included declining to participate in shooting activities on Commonwealth-operated ranges, traveling overseas to use firearms where it would be legal, and refusing even to touch firearms since his licences were revoked (see Lee 2020 at [87], and letters from Borsak, Bowler, Fredericks, Lee (the son.) The Tribunal finds his contrition and commitment to be genuine. The Tribunal is satisfied that with the passage of the last 9 years, the absence of any firearms offences in that period, and Mr Lee’s commitment to familiarising himself and complying with the statutory regime weigh against the concerns stemming from the earlier infringements and serve to diminish the possibility of a threat to the public’s safety.

117. Second, in parallel with the Applicant’s firearms-related development, he has made realisations and improvements in respect of traffic safety. Traffic laws and regulations and the firearms regulatory scheme are both aimed at ensuring public safety and disregard for one scheme is a relevant consideration in regard to determination of whether or not it is contrary to the public interest or the Applicant to hold a firearms licence (Lee 2020, Keegan Jaques, Tannous).

112. The last time Mr Lee was before the Tribunal he did not seem to understand how respect for traffic rules had any relevance to the firearms regime (see Lee 2020 [65]). By contrast, Mr Lee now does appreciate the relevance of respect for traffic safety. He expressed as much to the Tribunal at the hearing and the Tribunal found his statements to be sincere. The Tribunal also accepts Mr Lee’s written submission that he has made a “conscious decision to be a better driver” and that this is “reflected in the fact that I did achieve the reinstatement of all of my demerit points as a result of the commitment to this decision.”

113. In paragraph 75 above, the Tribunal noted steps Mr Lee has been taking to comply with road safety and the fruits of those efforts. Until the 9 October 2021 Incident, he had successfully managed to avoid incurring further demerit points.

114. For the reasons already set out above with respect to the fit and proper person test, the Tribunal does not accept that the 9 October 2021 Incident demonstrates that Mr Lee disregards public safety. He immediately addressed the trailer plug and load issues and has had other defects fixed. He has never been found to have driven while affected by drugs or alcohol or caused any harm to others or to property while driving. (cf. the repeat drink driving offences and failure to change behaviour in Keegan-Jaques at [57]). The Tribunal does not place weight on the minor defect notice issued to Mr Lee for one of his vehicles in February 2022. The vehicle had passed registration tests three times, and Mr Lee immediately and responsibly had a mechanic address the concerns that were subject of the notice.

115. The Tribunal does consider the prior offences of driving while suspended to be concerning, especially as they tended to show a disregard for a licensing scheme, however the Tribunal also takes into account that over a decade has passed since those incidents and the improvements demonstrated by Mr Lee in the past three years with respect to driving.

116. The Firearms Act does not set a timeline for how long an applicant must wait to reapply for a licence after having a licence revoked or refused. In order for the public to have confidence in the administration of the licensing system, the period must not be too brief, yet it need not endure indefinitely. Having weighed the totality of the evidence in the present case, and in particular considering the serious efforts the Applicant has demonstrated in complying with regulations aimed at public safety, as well as the passage of time since his last firearms offences and the evidence as to his good character, the Tribunal decides that it would not be contrary to the public interest to grant Mr Lee the licence for which he has applied.

117. For all the reasons set out above, either on their own, or in cumulation, the Tribunal does not consider the 9 October 2021 Incident, or Mr Lee’s prior history of other traffic offences or firearms infringements establish a likelihood of risk to public safety that would justify a refusal pursuant to Section 11(7) of the Firearms Act. I find that the correct and preferable decision is that it is not contrary to the public interest to grant him a firearms licence now. The Decision below should be set aside.

Remaining Issues to be Determined under Firearms Act

124. The Tribunal is satisfied that other elements set out in the Firearms Act are met.

125. As required by Section 11(3), Mr Lee is a resident of New South Wales who has held a firearms licence before. He has stated that he has the facilities for safe storage and the Respondent has not questioned this.

126. As noted above, Section 3(2)(c) of the Firearms Act requires “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”. The Tribunal is further satisfied that Mr Lee has genuine reasons for the licence that he seeks, as set out in Section 12.

127. He is the owner of rural land near Parkes and has provided rates notices and other documents concerning his properties. The Respondent has not questioned that he is the owner of rural land nor that he is engaged in primary production. At the hearing, Mr Lee described the land that he owns. After initially buying 300 acres for paintball (which land also has animals, and borders on national park land) he bought another property next door approximately 600 acres in size for primary production and applied for a C class licence. The family has since added another larger parcel of land where his son lives and they have a total of 2200 acres of farmland. His farm animals include around 800 head of Australian white sheep, 100 head of cattle, and some merino sheep. There has been a problem with foxes and the sheep. Especially after the heavy rains, the grass has grown and the fox problem has increased. It is easier to shoot foxes with a Category C firearm than with a pump or lever action firearm. Mr Lee also provided an explanation in response to concerns (now not pressed by the Respondent) that had been expressed in the internal review decision about his wife’s shooting needs (in addition to her other duties).

128. The Applicant explained the difficulties faced after his licences were revoked in terms of maintaining the farm with pest eradication and putting down stock. He explained that the C class licence is needed for effective control of pigs, foxes, ducks and galahs which cannot be achieved with a category AB licence. The pests are eating seed crops or hay crops and stopping them from growing. The numbers of pests are large due to the wet conditions and the Category C firearms are most effective at controlling them. Mr Lee has tried other methods to deal with the pests, including fencing, trapping and bow and arrow but they are inadequate. He has tried other methods for putting down stock (such as a hammer to the head) but this is unpleasant and less humane than a shot.

129. The Respondent stated at the hearing that it no longer presses its points in opposition to Mr Lee having genuine reasons for a Category C licence.

130. Based on the above considerations, the documents filed (including the original application, council rates notices, certified primary producer declarations, and valuations), Mr Lee’s own evidence at the hearing and the Respondent’s decision not to oppose the genuine reasons, the Tribunal is satisfied that Mr Lee has genuine reasons for the licence for which he has applied.

Conclusion

131. Based on all the considerations set out above, and having regard to the material before me, I am satisfied that the correct and preferable decision is to grant the licence that Mr Lee has sought. Accordingly, the Respondent’s decision should be set aside.

Orders

132. The Tribunal makes the following orders:

1. The Decision under review is set aside.

2. A Category A, B, and C firearms licence is to be issued to the Applicant as an owner of rural land, for recreational hunting/vermin control and primary production.

**********

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

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: 14 September 2022