Lee v Commissioner of Police

[2020] NSWCATAD 144

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Lee v Commissioner of Police [2020] NSWCATAD 144
Hearing dates:	20 February 2020
Date of orders:	01 June 2020
Decision date:	01 June 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	The decision under review is affirmed
Catchwords:	Administrative Law – firearms licensing -- public interest – fit and proper person.
Legislation Cited:	Firearms Act 1996 Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997
Cases Cited:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16 Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63 Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65 Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145 Lee v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 254 Lee v Commissioner of Police, NSW Police Force [2017] NSWSC 1849 Majoribanks v Commissioner of Police [2012] NSWADT 67 Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206 Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Stephen Lee (Applicant) Commissioner of Police (Respondent)
Representation:	Solicitors: Applicant (Self Represented) Maddocks (Respondent)
File Number(s):	2019/00322211
Publication restriction:	Nil

Reasons for Decision

Introduction

1. Stephen Lee ("the Applicant") has sought external review of a decision by a delegate of the Commissioner of Police (“the Commissioner” or "the Respondent") under the Firearms Act 1996 ("the Act"). The Respondent determined to refuse the Applicant's application for a Category AB firearms licence.

Background

2. The Applicant has previously held firearms permits and licences in a number of different capacities. He held a Category ABCDH firearms licence from 2011. In June 2013 he re-applied for the Category ABCDH firearms. However, his application was refused. That refusal was affirmed on internal review and he applied to the Tribunal for review of that decision. At first instance, in December 2015, the Tribunal allowed the Applicant to retain the licence: see Lee v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 254. The Respondent successfully appealed that decision: see Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234.

3. In August 2018 the Applicant applied for a personal Category AB firearms licence. In his application he identified the genuine reason as “recreational hunting/vermin control”. His application was refused in June 2019. He sought an internal review of the refusal and in September 2019 the internal review affirmed the refusal.

Applicable legislation

4. Section 9 of the Administrative Decisions Review Act 1997 ("the ADR Act") provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred on the Tribunal by section 75 of the Firearms Act 1996 (“the Act”).

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

6. The Act sets up a scheme to license people to possess and use firearms. One of the underlying principles of that Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms.

7. The Tribunal’s jurisdiction includes review of decisions by the Commissioner of Police to refuse to issue a licence or permit; to revoke a licence or permit and to impose a condition on licence or permit.

8. Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation. The principles and objects of the Act confirm that possession and use of firearms is a privilege that is conditional on public safety. Section 3(1) provides:

(1)   The underlying principles of this Act are:

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

(b)   to improve public safety:

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

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

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

9. Section 11 of the Act provides for the issuing of licences. Section 11(3) provides:

(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 (including a firearms licence under a previous Act), 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 set out in Part 4 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.

...

(5A)   A licence must not be issued to a person if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that:

(a)   the person is a risk to public safety, and

(b)   the issuing of the licence would be contrary to the public interest.

...

10. The Tribunal’s function in relation to applications before it is set out in section 63 of the ADR Act:

63 Determination of administrative review by Tribunal

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

(a)   any relevant factual material,

(b)   any applicable written or unwritten law.

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

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

(a)   to affirm the administratively reviewable decision, or

(b)   to vary the administratively reviewable decision, or

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

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

11. The issue in the present case is whether the correct and preferable decision is to affirm, vary or set aside the Commissioner’s decision and, specifically, whether the Applicant is a fit and proper person to hold a licence under the Act and whether or not it is contrary to the public interest for him to do so.

12. The standard of proof applying in these proceedings is the civil standard. That is, the balance of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party.

13. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 [at 23].

14. The discretion must be exercised keeping in mind the activities which are authorised by a licence/authority/certificate etc. under the Act. Accordingly, the objects and purposes of the Act are relevant. The principal issue in determining public safety is whether or not there is a risk to the safety of the public if the Applicant’s licence to possess firearms is returned to him.

Fit and proper person

15. The Act places an emphasis on licensees being fit and proper for the role. The Tribunal has considered the issue of whether an Applicant is a fit and proper person to hold a licence under the Act on numerous occasions.

16. Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].

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

18. 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 the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said:

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.

19. They went on to say at 388:

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.

20. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said:

In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.

21. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court discussed the meaning of the term ‘fit and proper’ (at 156-7):

"The expression `fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. `Fit' (or `idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."

The Public Interest

22. The Tribunal has also considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence:

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

23. The 'public interest' 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, NSW Police Force [2013] NSWADTAP 16.

24. “Public interest' embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to 'the public interest' is 'to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.

The material before the Tribunal

25. The Applicant relies on his own evidence and submissions. He has provided a number of character references and other material in support of his application. The additional material includes a DVD episode entitled 'Hunting' in the documentary series 'Living with the Enemy'.

26. The Commissioner relies on the evidence of Senior Constable Wayne Jackson, of the NSW Firearms Registry, as well as a significant volume of other material relating to the Applicant’s criminal record and other issues relating to the use or misuse of firearms. This includes references to content of the Applicant’s social media pages and related information as well as a number of videos.

The Respondent’s case

27. The Respondent has identified the following issues as relevant to the matter before the Tribunal

1. on 22 November 2000, the Applicant was found guilty of six explosive related offences and was fined $3,000;

2. the Applicant has a protracted history of firearms related contraventions, which took place between 27 April 2004 and 4 December 2016;

3. in 2014, the Applicant pleaded guilty to the charge of operating an unapproved shooting range and two charges of using a firearm on an unapproved shooting range;

4. the Applicant was the subject of a range of investigations regarding the illegal sale of fireworks and the Applicant was, subsequently, warned on two separate occasions for illegally selling fireworks;

5. the Applicant's firearms and weapons authorisations with respect to personal and business use were either revoked or refused;

6. the Applicant has failed to demonstrate any acknowledgment or contrition for his firearms offences and continues to hold the view that his conduct was not dangerous;

7. various footage demonstrates the Applicant's ongoing high level interest in accessing prohibited firearms, associated commentary and unsafe behaviour with respect to firearms;

28. The Respondent also provided the following chronology of events relating to the Applicant’s licensing. This chronology is not in dispute:

1. In 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 subsequently fined $3,000.00;

3. In 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. In 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. In April 2012, the Applicant posted a YouTube video of him and his son "shooting some 45s" for the Applicant's 45th birthday at an unapproved shooting range. The video showed the Applicant handing a .460 revolver to his son, who then fired it at suspended metal targets. The final round appeared to be with high-power ammunition that had been placed in the revolver by the Applicant without his son's knowledge. At the time of this incident:

1. the Applicant's son's high calibre pistol permit had expired about 4 months previously;

2. the shooting took place at an unapproved shooting range; and

3. the .460 revolver being used was a prohibited pistol under section 4C(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:

1. using an unauthorized prohibited firearm;

2. operating an unapproved shooting range;

3. using a firearm, namely a "M14 World War II rifle" and a .45 pistol, on an unapproved shooting range; and

4. 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.

10. 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;

29. These issues are also discussed in Lee v Commissioner of Police, NSW Police Force [2017] NSWSC 1849 at paragraphs [9] – [11].

30. Much of the detail relating to the incidents to which the Respondent has referred was considered in earlier proceedings before the Tribunal: see Lee v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 254 and Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234. I do not propose to restate that information here.

31. The Respondent also provided the following summary relating to the Applicant’s history of traffic infringements dating back to 15 May 1984:

1. Negligent driving (two counts);

2. Drive whilst disqualified (two counts);

3. Failure to comply with conditions of provisional licence (five counts);

4. Exceed speed limit by more than 10 km/h (three counts)

5. Exceed speed limit by not more than 15 km/h (six counts)

6. Exceed speed limit by more than 15 km/h but not more than 30 km/h (three counts);

7. Exceed speed limit by more than 20 km/h but not more than 30 km/h;

8. Exceed speed limit by more than 30 km/h (two counts);

9. Not wear seat belt while driving (two counts);

10. Drive contrary to stop sign;

11. Disobey traffic lights (two counts);

12. Drive using hand-held mobile device (two counts); and

13. Not keep left.

32. His driver’s licence has been suspended on six occasions as a consequence of some of these contraventions. He has also been charged with driving while disqualified on two separate occasions. In June 2019 he was caught driving an unregistered vehicle.

Senior Constable Wayne Jackson

33. Senior Constable Jackson is a firearms and weapons instructor and is Compliance Coordinator at the NSW Firearms Registry. He provided details relating to a number of issues, including the Applicant's previous licences and permits; criminal history; failure to comply with his obligations under the Act and associated legislation. He expressed concerns about issuing the Applicant with a firearms licence.

34. The wide range of matters that Senior Constable Jackson’s evidence addresses includes:

1. Failure to comply with the applicable safe storage requirements.

2. Failure to comply with the applicable record keeping obligations

3. The possibility that the Applicant used firearms whilst unlicensed

4. Operating an unlicensed paintball business

5. The unsafe shooting of a paintball gun

6. Use of an unauthorised prohibited firearm in contravention of a theatrical armourer licence

7. The operation of an unapproved shooting range

8. Failure to comply with the conditions of a High Calibre Pistol Permit

9. Possess prohibited weapon and supply/sell a prohibited firearm and weapon

35. Much of his evidence relates to issues that were considered in the earlier matters that were before the Tribunal. This is discussed in significant detail in the earlier proceedings and I will not repeat it here. I note that Senior Constable Jackson considers those issues are relevant to the matter before the Tribunal.

36. In addition to the Applicant's updated criminal history report he provided a copy of the Applicant's traffic record and noted that the Applicant has a lengthy traffic history, for a range of infringements, spanning from 1984 to 2019.

37. He noted that in 2013 the Applicant was charged with the following offences:

1. use unauthorised prohibited firearm between 13 August 2012 and 16 July 2013, namely a CZ Scorpion sub machine gun pistol with serial no B0024 and B0228;

2. operate an unapproved shooting range between 20 April 2012 to 16 July 2013;

3. two counts of use firearm on an unapproved shooting range between 13 August 2012 and 16 July 2013, namely a M14 World War 2 rifle and a .45 caliber pistol;

4. sell, between 12 August 2012 and 30 January 2013, a firearm to person unauthorised to possess it, namely a Harrington and Richardson Firearms M14 sold by Mr Lee as a firearm dealer to Mr Lee personally (when he did not have a permit or licence to purchase it); and

5. possess, between 13 August 2012 and 30 January 2013, a firearm he was not authorised to possess, namely a Harrington and Richardson Firearms M14.

38. However, he said the he understands that, in return for the guilty plea, the prosecutor agreed to withdraw several of the charges. He did not agree to the withdrawal of those charges. The Applicant was sentenced in relation to the lesser charges. He considers that the Applicant’s conduct posed a significant safety risk to members of the public and to himself.

39. Senior Constable Jackson referred to a number of videos in which the Applicant expressed his interest in firearms and criticism of firearms legislation. He referred to the Applicant's YouTube website and noted that these videos are still available to be viewed by the public.

40. He also referred to new video footage that was posted onto the Applicant’s YouTube channel in July 2016. A video titled "New Style Hand Grenade Test Fire" shows a group of people throwing live military grenades into a body of water. Those throwing the grenades are told to throw them into the deepest part of the water, to contain the blast and shrapnel from escaping the water, and therefore preventing injury. The Applicant threw the grenade into the shallow water, resulting in both him and the instructor running back from the resultant explosion.

41. Senior Constable Jackson stated that he considers that such conduct demonstrates that the Applicant is unable to follow instructions or respect authority when using dangerous weapons. He noted that the video remains publicly available online.

42. He also referred to a number of videos, presumably filmed during trips to Cambodia, which the Applicant has uploaded to YouTube. The videos demonstrates the Applicant’s ongoing high level interest in accessing prohibited military firearms. An example that Senior Constable Jackson referred to is video footage titled 'LG 440 40mm Grenade launcher Firing exploding rounds' that was posted onto the Applicant’s YouTube channel in April 2018. Copies of these videos were provided to the Tribunal.

Senior Constable Jackson referred to views that the Applicant has expressed in regard to firearms legislation. For example, the Applicant has equated the regulatory regime as government control and an infringement of civil liberties and asserted that “The gun laws have really been bad for legal gun owners”. In Senior Constable Jackson’s view, those statements demonstrate that the Applicant holds beliefs which are potentially incompatible with the objects of the Act.

43. Senior Constable Jackson stated that he considers that the Applicant’s conduct displays a fundamental disregard for his licensing obligations and a complete lack of understanding of those obligations. He would be very concerned if the Applicant was issued with a personal firearms licence under the Act because the Applicant has:

1. had significant offences for disobeying traffic laws;

2. twice, operated a business and maintained firearms without authorization following the expiry of his paintball permit;

3. on numerous occasions, failed to record firearm transactions properly and fully;

4. operated an unapproved shooting range that was never approved in accordance with the and which was unsafe;

5. on multiple occasions demonstrated non-conformance with the requirements of the various licences that he has held;

6. maintained that he was 'test firing' firearms at the unapproved shooting range when he was shooting to celebrate his birthday;

7. allowed his son to fire a high calibre pistol, without ensuring that his son was authorized to use such a firearm;

8. played a 'joke' on his son by secretly placing high powered ammunition in the gun;

9. used an M14 was a prohibited firearm, despite knowing that it was a prohibited firearm that he was not allowed to use, and posted a video of himself doing so on YouTube;

10. posted videos which publicly displayed a disregard for the Act, a disregard for the safety of himself and others and set a bad example for other paintball users; and

11. posted videos to his YouTube channel which appear to show that he has used firearms very recently and whilst unlicensed and showing a complete disregard for the licensing system of the Act.

The Respondent’s Submissions

44. In addition to the contentions relating to his firearms offences, it is submitted that the Applicant’s extensive history of traffic infringements, some of which are repeated, demonstrate a disregard for public safety and his own safety. Furthermore, the nature of the Applicant's offending, with particular emphasis on the Applicant's offences of driving while disqualified, reveal a disregard for a regulatory scheme aimed at ensuring public safety.

45. The Respondent relies for support on views expressed by Senior Member Scahill in Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145. The Senior Member noted at paragraphs [75] - [76] that:

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

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

46. The Senior Member determined at [81] that:

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. ...

47. The Respondent also noted that the Applicant has also been the subject of numerous police intelligence reports for the illegal sale of fireworks in the Broken Hill, Parkes and Narrabri areas, between 1999 and 2017 and was on two separate occasions warned for selling fireworks to the public without a permit. However, it appears that the Respondent has subsequently accepted that the Applicant is authorised to sell fireworks to a person who is authorised to possess fireworks.

48. In relation to the need to comply with the obligation to record transactions relating to firearms properly, the Respondent relies on comments made by Judicial Member Pearson L in Morabito v Commissioner of Police [2006] NSWADT 181 at paragraph [26]:

26 The importance of the licensing and registration scheme in the maintenance of public safety is obvious. Law enforcement agencies must be able to identify those who hold firearms, and trace particular firearms, if, for example, they have been used in the commission of an offence. The licensing and registration requirements depend for their effectiveness on compliance with record keeping requirements in Part 5 of the Act. The purpose of the obligations to record transactions relating to firearms is to ensure that firearms can be located and identified and their history traced. The records kept by the applicant for the Swedish Mauser did not provide an accurate statement as to the circumstances of its acquisition, or the time that it was in the applicant’s possession.

Fit and proper person

49. The Respondent contends that the evidence supports a finding that the Applicant has not accepted the significance of his conduct that resulted in the removal of his firearms and prohibited weapons authorisations. This is illustrated by the fact that he maintained a challenge to the decisions, ultimately seeking leave to appeal the decision to the Supreme Court.

50. The Respondent noted that, in his internal review submissions, the Applicant downplayed the gravity of his firearms offences stating that his actions were objectively not dangerous. The Respondent also noted that the Applicant has continued to post videos on YouTube demonstrating an ongoing high level interest in accessing and using prohibited military firearms in an unsafe manner. The Respondent contends that this is not representative of a person with an innate respect for, and understanding of, broader community expectations with respect to firearms.

51. The Respondent referred to views that I expressed in Majoribanks v Commissioner of Police [2012] NSWADT 67 where I stated at paragraph [77]:

In my view this lack of acceptance is a significant factor to be weighed in the process of assessing whether I can have confidence that improper conduct will not occur again if the Applicant were granted the licence. It is difficult to find that confidence in the case of an individual who has previously engaged in improper conduct and who continues to deny aspects of the conduct.

52. The Respondent submits that the Applicant’s failure to accept the significance of his misconduct pursuant to the Act, combined with his criminal history, indicates that he does not have the judgement to determine what is a responsible and legal activity or action and that he cannot be trusted to have possession of firearms without presenting a danger to the public safety or peace.

53. The Respondent also contends that 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 and that the Tribunal could not be satisfied that the Applicant is a fit and proper person to hold a firearms licence.

54. The Respondent acknowledges that the Applicant’s character references all speak highly of the Applicant. However, it submits that the references do not demonstrate the referee’s awareness of the Applicant's wrongdoing or the broader community expectations with respect to firearms. It is submitted that these references should be given little or no weight.

55. The Respondent submits that in the circumstances, the Tribunal would be satisfied that the Applicant is not a fit and proper person to hold a firearms licence.

56. The Respondent also contends that it is not in the public interest for the Applicant to hold a firearms licence.

The public interest

57. The Respondent referred to views that Hennessy DP expressed in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 where, in terms of public safety, she stated at paragraph at [28]:

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

58. Since the decision in Ward, Hennessy DP has cautioned against applying that language in a mechanistic way. 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.

59. The Respondent notes that the Ward formulation has been held to apply to the public interest test as well as to the "fit and proper person" test.

60. Applying this understanding of the law, it is submitted that it would be contrary to the public interest for the Applicant to continue to hold his firearms licence for a number of reasons.

61. The Respondent submits that the Tribunal is required to look at the Applicant's conduct as a whole. It contends that the Tribunal could not conclude that there is virtually no risk after considering the Applicant's numerous breaches of the Act, lengthy traffic infringement record, conduct in relation to the use of fireworks, failure to display remorse or recognise the serious nature of his non-compliance with the Act, and his publicly expressed views in relation to firearms regulations and licensing.

62. For these reasons The Respondent submits that the correct and preferable decision is to affirm the decision to refuse to issue the Applicant a firearms licence.

The Applicant's case

63. The Applicant submitted that insofar as his criminal history involves offences relating to explosives and firearms, the firearm conviction referred to in his criminal history is over thirty years ago and the explosives offences were twenty years ago. Those matters are therefore well and truly spent.

64. He further submitted that the more recent charges occurred over seven years ago and they were eventually dealt with without proceeding to conviction. He said that in reaching her decision, the Forbes Magistrate considered the Applicant’s good character, the relatively trivial nature of the offences and the extenuating circumstances. He said that he would not have referred to the conduct that resulted in the charges as "trivial" however it was explained to him at the time that in that context the expression "trivial" referred to the incidents as being on the lower end of the scale of seriousness.

65. He conceded that he has a considerable history of breaching traffic/road laws but submitted that it is unfair to compare a lack of compliance with traffic laws and an ability to comply with the firearm legislation. He also provided evidence to explain the circumstances relating to some specific incidents. He submitted that firearm legislation is to be taken with a far greater degree of seriousness than traffic laws as it has a much greater effect on public safety. In this regard he offered the comparison between firearms offences and a traffic offence such as using an unregistered trailer. He noted that relative level of seriousness is reflected in the fact that the penalties associated with firearm legislation are much greater than with traffic laws and do not simply allow for mechanisms such as a demerit points scheme.

66. In relation to the Respondent’s concerns relating to his fitness, propriety and trust the Applicant noted that his explosives/pyrotechnics licence was suspended and the security clearance required for him to hold such licence was cancelled as a consequence of the charges relating to his use of firearms. His explosives/pyrotechnics licence and the security clearance were ultimately reinstated on internal review of the decision.

67. He submits that, while the term fit and proper may be considered at varying standards between different industries, there are similarities between the use of explosives and the use of firearms. They carry very similar responsibilities in relation to community safety and community expectations and the importance of compliance and safe storage.

68. In regard to his references, the Applicant noted that these references are provided by community leaders, elected representatives of the community, heads of educational institutions and sitting Members of the Legislative Council of NSW and the House of Representatives. He submitted that all of the referees are people who hold their positions because of their passion and commitment to the community and society. He said that they would not be supportive of his application if they felt it would in any way compromise community safety.

69. In regard to the applicable standards and attitude to firearms and firearm safety he submitted that community expectations in relation to firearm usage and ownership have increased continually throughout the years and he would expect this to continue. He accepts that those entrusted with the authority of a licence are in essence being trusted to ensure that the safety of the community is not endangered by the ownership and usage of firearms.

70. He contends that he has an excellent understanding of the legislation and that he now understands and accepts that only absolute compliance is acceptable. He recognises that his own personal circumstances do not outweigh the need for public safety. He submitted that he accepts the position of zero tolerance to contraventions and expressed contrition in regard to previous contraventions.

71. The Applicant noted the Respondent’s assertion that his contrition cannot be sincere because he has previously challenged the decisions of both the Respondent and the Tribunal. He submits that this assertion is unfair as he was simply accessing the procedural fairness that was available.

63. In regard to his continued assertion that his conduct was not dangerous, the Applicant accepts that there was an element of potential danger to the conduct but differentiates between theoretical danger, or perceived danger, and putting the community at real risk of harm. In that regard he noted that both the Forbes Magistrate and the Sergeant bringing the charges against him considered that the case against him was borderline.

64. He accepts that all contraventions are serious because of the requirement for absolute compliance, and because of the community expectation that those with the authority of a firearms licence must not only understand but also comply with the legislation that applies to the ownership and usage of firearms. He also accepts that the conduct that resulted in the charges was serious as it related to compliance. However, he submitted that the conduct was untimely considered on the lower end of the scale of seriousness as it presented almost no real risk of harm to the public.

65. He disputes the Respondent’s assertion that he has not acknowledged any wrongdoing or demonstrated any contrition. He stated that he has escalated his study of the firearms legislation to ensure future compliance and improve his understanding of the previous wrong doings. He noted that some of his referees acknowledged that he had spoken of the guilt and embarrassment that he feels in regard to his contraventions. He said that it is not true to suggest that he blames the registry for the current circumstance. Rather, he does not deny that he has expressed frustration with the licensing process.

66. The Applicant noted that this matter only relates to his application for a category AB firearms licence for the genuine reason of hunting and its utilization on his farm as a primary producer for the controlling of vermin and humane destruction of livestock. He said that he has a firm belief that primary producers and hunters who are controlling invasive species play a huge roll that ultimately benefits the broader community.

67. He does not deny that he has a keen interest in firearms. It has been a big part of his life and associated businesses in the past. Similarly, he does not dispute the Respondent’s assertion that he has a continued interest in "prohibited Military Firearms". He agreed that he has travelled oversees to countries that allow the opportunity for tourists and civilians to lawfully experience the usage of such firearms. He noted that those firearms are not prohibited in countries such as Cambodia and he believes this travel is actually an example of his preparedness to comply with the Act and related legislation. For example, he has travelled to Cambodia to take part in activities that are not permitted within Australia. He said that this is done in conjunction with and under the direct supervision of the Cambodian armed forces or local guides licensed for the activity.

68. He said that he has rejected offers to engage in similar conduct in Australia. He submits that he has demonstrated his commitment to compliance by traveling thousands of kilometres to a jurisdiction that allows for such activities and rejecting the opportunity to take part in similar opportunities close to home without the time, cost and effort associated with such travel.

69. In regard to the Respondent’s assertions regarding the videos that he has posted, he submits that some of the videos are fictitious and made for entertainment. He noted that in filming a video which is in the most part entertainment, the risk or potential for danger has been purposely overstated for the benefit of the production. He says that videos of that kind are, therefore, not completely factual and could not be categorized as a documentary. He also noted that in other circumstances there would be both fiction and non-fiction within the same production.

70. The Applicant submitted that he has been involved with firearms for over 45 years and that he has seen many changes to legislation and public perception in that time. He now accepts that he has been foolish at times and understands that when thinking of gun crime he had felt that he was not part of the problem. However, he stated that his life has been forever changed because of his contraventions and the charges against him. This has brought a complete understanding of the need for unconditional absolute compliance in regard to the use of firearms.

71. He accepts that community expectations around firearm ownership have changed and he stated that his expectations have changed too. In this context, he is seeking the personal firearms licence for the genuine reasons of primary production and recreational hunting/vermin control.

Consideration

81. This is a matter that primarily involves consideration of the public interest. 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 by the Tribunal’s Appeal Panel or that the Supreme Court refused the Applicant's request for leave to appeal. I note that the Respondent has suggested that the Applicant's pursuit of his rights of appeal indicates that he has not accepted the significance of his conduct. In my view that is an irrelevant consideration. No criticism can be made of any citizen who exercises their legal rights as the Applicant has done.

84. I also note that the Respondent has suggested that the Tribunal should take the Applicant’s publicly expressed views in relation to firearms regulation and licensing into account. Senior Constable Jackson’s view is that the Applicant’s beliefs are potentially incompatible with the objects of the Act. I do not agree with this submission. The Applicant is entitled to express his political opinions.

85. I note that there is no suggestion that the Applicant has been charged with any offences relating to expressing his opinions or that he has engaged in any unlawful conduct in that regard. He has posted on social media as an avenue to express his political opinions. In my view this is not a relevant consideration in these proceedings.

86. It is also relevant that the Applicant has not been charged with any recent firearms offences. The Respondent has been critical of the Applicant’s interest in firearms and has expressed concern in regard to the content of videos posted on his Youtube page. I have viewed the videos that the Respondent has provided tot eh Tribunal and I agree with the Respondent’s summary of the content. However, the Applicant has referred to the entertainment nature of the videos and asserted that they are not documentaries. There is no evidence before me to contradict the Applicant in that regard. I cannot be satisfied that the videos are more than entertainment or that they demonstrate that Applicant has a disregard for public safety and his own safety.

87. I note that the Applicant has expressed contrition in regard to his offences. I also note his submission that his preparedness to comply with the Act and related legislation is demonstrated by the fact that he has travelled oversees to countries that allow him to engage in the use of firearms in ways that are not prohibited in those countries. He has done so in preference to engaging in prohibited conduct closer to home. In the absence of evidence to contradict that view, I accept it.

88. Contrary to the Respondent’s submission 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.

89. However, it is my view that the outcome of this matter primarily involves consideration of the public interest.

90. The public interest requires that all licensees be aware of, and comply with, the legislative requirements. 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.

91. The Appeal Panel in Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206 stated at paragraph [133]:

In our view, the possibility that the holder of a licence may not comply with the law is a relevant matter in exercising a discretion to revoke a license on public interest ground. As stated above, the test is very wide and in matters of public safety and the possession and use of firearms, it could hardly be suggested to the contrary.

92. Similarly, the possibility that an applicant for a licence may not comply with the law is a relevant matter in exercising discretion to refuse a licence on public interest ground.

93. The question of risk is not, however, to be approached in an absolute or mechanistic way. In Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 the Tribunal noted at paragraphs [64] – [66]

64. In relation to the Act’s emphasis on the overriding need to ensure public safety, reference is usually made to Ward v CoP [2000] NSWADT 28, [28], in which Hennessy DP 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 not pose any risk to public safety. Indeed, her Honour could not have been totally satisfied of that, as the applicant had been convicted of an offence of violence and had been the subject of an apprehended violence order. Some other cases to a similar effect are reviewed in Green v CoP [2014] NSWCATAD 59, [72] – [79].

65.   In Webb v CoP [2004] NSWADT 110, for example, Montgomery JM when considering the question of public safety stated that, “In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration”: [32].

66.   The question of risk is therefore not 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.

94. The question is whether there is in all the circumstances a real and appreciable risk to the public. Where there is the possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm.

95. 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.

96. I share that concern but my concern is based on the Applicant’s traffic record. His extensive history of breaching traffic/road laws is not in dispute. I do not agree with the Applicant’s submission that it is unfair to compare a lack of compliance with traffic laws and one's ability to comply with firearm legislation. I agree with the Respondent’s view that the Applicant's extensive history of traffic infringements demonstrate a disregard for public safety and his own safety as well as a disregard for a regulatory scheme aimed at ensuring public safety. I agree with the views expressed by Senior Member Scahill in Keegan Jacques v Commissioner of Police referred to above.

97. The traffic laws and regulations 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.

98. In my view, 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.

99. I also note that the Applicant has indicated that he is seeking a licence for use as a primary producer. However, his application indicated that he sought the licence for “recreational hunting/vermin control”. If granted, the licence would not permit the humane destruction of livestock on his property.

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.

Order

1. The decision under review is affirmed.

**********

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

Registrar

Decision last updated: 01 June 2020