Lee v Commissioner of Police, New South Wales Police Force

[2015] NSWCATAD 254

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Lee v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 254
Hearing dates:	12 May, 29 July, 16 November 2015
Date of orders:	03 December 2015
Decision date:	03 December 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	G Walker, Senior Member
Decision:	The decision under review is varied in accordance with the orders in para 207 of these reasons.
Catchwords:	FIREARMS LICENSING -- public interest -- theatrical licence -- dealer licence -- paintball licence -- interaction of licences –storage – military firearms -- political communication –deterrence --complexity.
Legislation Cited:	Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Crimes (Sentencing Procedure) Act 1999; Firearms Act 1996; Weapons Prohibition Act 1998.
Cases Cited:	BY v Director-General, Attorney-General’s Department [2002] NSWADT 79; Bottomley v Commissioner of Police, New South Wales Police Force [2005] NSWADT 211; Briginshaw v Briginshaw (1938) 60 CLR 336; Cook v Commissioner of Police, New South Wales Police Service [2002] NSWADT 223; Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; Hardy v Commissioner of Police, New South Wales Police Service [2006] NSWADT 218; Health Care Complaints Commission v Do [2014] NSWCA 307; Hijazi v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 148; Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218; Huckel v Commissioner of Police, New South Wales Police Force [2008] NSWADT 347; Jarod Lee v Commissioner of Police, New South Wales Police Force (NSWCATAD) 22 May 2014 ex tempore; Lee v Director of Public Prosecutions 2014/54362, 1 April 2015 ex tempore; Lee v Health Care Complaints Commission [2012] NSWCA 80; McDonald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 358; New South Wales Bar Association v Meakes [2006] NSWCA 340; O’Donnell v Commissioner of Police, New South Wales Police Force [2009] NSWADT 162.
Category:	Principal judgment
Parties:	Stephen Lee (Applicant) Commissioner of Police, New South Wales Police Force (Respondent).
Representation:	S Lee (Applicant in person) Bartier Perry (Respondent).
File Number(s):	1410143

Reasons for decision

1. The applicant Stephen Gary Lee on 25 March 2014 applied to this tribunal for the review of a number of decisions taken on 22 October 2013 by the respondent in connection with firearms and related permits held by the applicant, decisions that were affirmed on 25 February 2014 following an internal review (in these reasons collectively referred to as “the decision”).

2. The permits and licences were held by the applicant in a number of different capacities. The licences and permits and the action taken in relation to them were as follows:

1. Stephen Gary Lee, ID 102174634

1. On 27 June 2013 the applicant applied for a category ABCDH firearms licence (No. 106968687). That application was refused on 22 October 2013 and the refusal is a decision under review. The ground of refusal was that it was not in the public interest for the applicant to hold the licence, within the meaning of s 11(7) of the Firearms Act 1996 (the Act).

2. On 4 July 2013 the applicant applied for a High Calibre Pistol Permit (No. 410409280). That application was refused on 22 October 2013 and the refusal is a decision under review. The ground of refusal was that it was not in the public interest for the applicant to hold a licence, within the meaning of s 29(4) of the Act.

2. Stephen Gary Lee trading as Inland Firearms, ID 108709530

1. The applicant was issued with a Firearms Dealer Licence (No. 410461846) on 20 August 2011, to expire on 20 August 2016. That licence was revoked, however, on 22 October 2013. The revocation is a decision under review. The grounds of revocation were that the applicant had contravened the Act or the Firearms Regulation 2006, or both (s 24(2)(b)(ii) of the Act) and that it was not in the public interest for the applicant to continue to hold a licence: s 24(2)(d) of the Act and cl 19 of the Regulation.

2. The applicant was issued with a Prohibited Weapons Dealer Permit (No. 4107064812) on 29 October 2012, to expire on 28 October 2017. That licence was revoked, however, on 22 October 2013. The revocation is a decision under review. The grounds of revocation were that the applicant had contravened the Weapons Prohibition Act 1998 (the WP Act) (s 18(2)(b)(ii) of the WP Act), and that it was not in the public interest for the applicant to continue to hold the permit (ss 18(2)(a) and 10(4) of the WP Act).

3. Lee Family Trust – Stephen Gary Lee as Licence Holder, ID 109056921

1. As the licence holder for the Lee Family Trust, the applicant was issued with a Theatrical Armourer Dealer Licence (No. 410691377) on 19 May 2012, to expire on 19 May 2017. That licence was, however, revoked on 22 October 2013. The revocation is a decision under review. The grounds of revocation were that the applicant had contravened the Act or the Regulations, or both (s 24(2)(b)(ii) of the Act) and that it was not in the public interest for the applicant to continue to hold the licence (s 24(2)(d) of the Act and cl 19 of the Regulations.

2. On 17 June 2013, the applicant lodged an application for a Theatrical Weapons Armourer Permit (No. 411019339). The application was refused on 31 October 2013. The refusal is a decision under review. The ground of refusal was that it was not in the public interest for the applicant to hold the permit within the meaning of s 10(4) of the WP Act.

4. Lee Family Trust trading as Broken Hill Paintball – Stephen Gary Lee as Licence Holder, ID 104610170.

1. As the licence holder for Lee Family Trust trading as Broken Hill Paintball, the applicant was issued with a Paintball Games Permit (No. 405606123) on 15 March 2013, to expire on 15 March 2018. That permit was revoked, however, on 22 October 2013. The revocation is a decision under review. The ground of revocation was that it was not in the public interest for the applicant to continue to hold the permit, within the meaning of s 30(4)(b) of the Act and cl 20(1) of the Regulation.

Applicable legislation

3. Section 11(7) of the Act provides that “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”. Section 24(2)(d) provides that “A licence may be revoked:… for any other reason prescribed by the regulations”. Section 29(4) of the Act provides that “Despite any other provision of this section, the Commissioner may refuse to issue a permit if the Commissioner considers that issue of the permit would be contrary to the public interest”.

4. Section 30(4) provides as follows:

A permit may be suspended or revoked by the Commissioner:

1. for any reason for which a licence may be suspended or revoked under this Act, or

2. for such other reasons as may be prescribed by the regulations.

5. Clause 19 of the Firearms Regulation 2006 provides that “The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold a licence”. Clause 20(1) of the Regulation provides that “In accordance with section 30(4)(b) of the Act, a permit may be revoked if the Commissioner considers that it is not in the public interest for the person to whom the permit is issued to continue to hold it”.

6. Section 10(4) of the WP Act provides that “Despite any other provision of this section, the Commissioner may refuse to issue a permit if the Commissioner decides that the issue of a permit would be contrary to the public interest”.

7. Section 18(2) of the WP Act provides as follows:

(2)  A permit may be revoked:

(a)  for any reason for which the permit holder would be refused a permit, or

(b)  if the permit holder:

(i)  supplied information in, or in connection with, the application for the permit which was (to the permit holder’s knowledge) false or misleading in a material particular, or

(ii)  contravenes any provision of this Act or the regulations, whether or not the permit holder has been convicted of an offence in respect of the contravention,….

8. The tribunal’s function in relation to applications before it is set out in s 63 of the Administrative Decisions Review Act 1997:

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.

The issue in the present case is thus whether the correct and preferable decision in relation to each separate licence or permit is to affirm, vary or set aside the reviewable decision and, specifically, whether it is or is not in the public interest for the applicant to hold, or continue to hold, such licence or permit.

Respondent’s evidence

9. The respondent relied on the s 58 documents (exhibit R1) and on a further bundle of documents (part exhibit R2) as well as on the evidence of Detective Senior Constable Wayne Jackson, who is a firearms and weapons instructor and the Compliance Coordinator at the New South Wales Firearms Registry, which is part of the police force. In that role he deals regularly with firearms licensing matters, deals with problems, audits firearms dealers, provides training on firearms licensing and undertakes a number of other related duties concerning shooting ranges.

10. In his evidence in chief at the hearing, the witness adopted his lengthy written statement of 27 April 2015. The following is a summary of its contents.

11. After setting out of the applicant’s license history, the statement notes that in 2010 he had exceeded the speed limit in his motor vehicle by between 30 and 45 km/h and that in 2012 he was convicted for driving on the road while his licence was suspended. Following a firearms audit on 16 July 2013, the applicant’s licences, permits and all firearms were seized on 17 July 2013 and his licences and permits were suspended.

12. Following an investigation, the applicant was charged with the following offences:

• using an unauthorized prohibited firearm between 13 August 2012 and 16 July 2013 (the same dates apply to the other offences listed), namely a CZ Scorpion “submachinegun pistol”,

• operating an unapproved shooting range,

• two counts of using a firearm, namely a “M14 World War II rifle” and a .45 pistol, on an unapproved shooting range,

• selling a firearm to a person unauthorized to possess it, namely a Harrington and Richardson M14 sold by Mr Lee as a firearms dealer to Mr Lee personally, when he did not have a permit or licence to purchase it, and

• possessing a firearm he was not authorized to possess, namely a Harrington and Richardson M14 rifle.

13. The applicant pleaded guilty to the charges of operating an unapproved shooting range and the two counts of using a firearm on an unapproved shooting range. As part of the arrangements for the guilty plea, the other charges were withdrawn, although without the agreement of the Firearms Registry. On 3 October 2014, the applicant was sentenced in relation to the charges and given an 18 month good behaviour bond pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999. On 1 April 2015, the District Court upheld Mr Lee’s appeal on sentence. The conviction was set aside and an order made under s 10(1)(a) instead.

14. The applicant’s son, Jarod Lee, had his personal firearms licence revoked and an application for a category D licence was refused by the Commissioner following the discovery of his participation in a YouTube video titled “.45 calibre birthday party”. Jarod Lee did not hold a high calibre pistol permit at the time the video was filmed. In the video he is given a high calibre pistol by the applicant and fires it. Mr Jarod Lee challenged the Commissioner’s decision in this tribunal. In the course of those proceedings the applicant maintained that he was test firing in the YouTube video and that the shooting range was approved by Sergeant Colin Boggs. The tribunal affirmed the Commissioner’s decision on 23 May 2014.

15. The witness then listed a number of instances of alleged failure by the applicant to comply with his obligations under the Act and related legislation, as well as other conduct causing concern, including from a safety perspective. The first was that on two occasions, one in June 2008 and the other in April 2013, police impopunded 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.

16. The second related to the charge referred to above following the finding on 17 July 2013 of two .38 calibre CZ submachine guns that were found to be loaded with live ammunition. They were registered to the applicant’s Theatrical Licence. That licence permits Mr Lee to be an armourer, and the Act defines a theatrical armourer as “a person who carries on a business of providing firearms for the purposes of film, television or theatrical productions”. Under s 28(c) of the Act and cl 52 of the Regulation, a person may apply on behalf of a film, television or theatrical production, for a permit that will authorize the holder to use firearms in connection with that production. Under cl 52(5) and (6), however, the firearms must be modified to use blank cartridges only and the permit is subject to the condition that only blank cartridges may be used with any firearm to which the permit relates. The applicant had not obtained a permit under cl 52, his application having been refused. If he had held such a permit, he would have contravened the condition that firearms registered for that purpose not be used with live ammunition.

17. The applicant had posted numerous videos showing him handling and firing live ammunition for various firearms. Those videos were still available to be viewed by the public on YouTube.

18. Thirdly, the applicant had pleaded guilty to operating an unapproved shooting range, at what was referred to as the Staircase property, in contravention of cl 85 of the regulation. A person applying for approval of a range must inter alia obtain full development approval from the relevant local council, as well as the consent of all affected landowners. The applicant never applied for, and was never given, council or police approval to operate the shooting range in question. Local police do not have the authority to approve a range in the manner that the applicant alleges Sgt Boggs did (and which Sgt Boggs does not recall). Approval would never have been given for the range as it failed to conform with the safety area requirements laid down in the NATO standard. The required safety area extends across a public road and into adjoining properties. The range had no stop butts or backstop, there were numerous metal targets on the range that could have caused ricocheting and there was no mechanism for controlled shooting, such that a shooter could fire left and right, or up and down, thereby creating a risk of projectiles travelling outside the safety area.

19. The unapproved range was also on the same property on which the applicant operated his paintball business, the paintball site being between 30 and 40 m away from the firing range. That created a risk that paintball players could enter the unsafe area of the improvised range, or could be exposed to ricochet danger.

20. In his application for a paintball permit, the applicant had stated that he had applied all design requirements as stated in the Ranges Guide, chapter 7. One requirement of the guide is that “The minimum engagement distance is 6m”. In the YouTube clip titled “The shootout”, the applicant is seen using a paintball gun in close proximity to other participants, closer than 6 metres. In the video the applicant was not wearing appropriate protective gear while others in the video appear to be using their paintball guns.

21. Next, the witness noted that on 12 February 2011, a high calibre pistol permit was issued to Mr Jarod Lee, to expire on 28 December 2011 (and which did expire on that date). The permit conditions included;

• using a prohibited pistol only for participating in specialized shooting competitions,

• a prohibited pistol is one with a calibre of more than .38 but less than .45,

• a specialized shooting competition involves either metallic silhouette or single action shooting at ranges approved for those activities,

• the holder may not possess or use firearms for any other purpose, and

• the holder must participate in at least 4 club organized competitive shooting matches over each period of 12 months that are held at a shooting range approved for such activities.

22. Mr Jarod Lee had not attended a shooting competition at Springwood Pistol Club since November 2011.

23. On 25 April 2012, YouTube video was posted that showed the applicant and his son “shooting some 45s” for the applicant’s 45th birthday at the unapproved shooting range. The video showed the applicant handing a .460 revolver to Mr Jarod Lee, who then fired it at suspended metal targets at a makeshift firing range. 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 Mr Jarod Lee’s high calibre pistol permit had expired about 4 months previously. The venue was not Springwood Pistol Club or an approved shooting range, and no specialized shooting competition was taking place. The .460 revolver was a prohibited pistol under s 4C(1)(a) of the Act. Towards the end of the video, the applicant fires at a birthday cake that appeared to contain some explosive. In the opinion of the witness, the applicant’s conduct was unsafe, reckless and in complete disregard of the obligations of licence holders.

24. Next, the applicant posted a YouTube video titled “M14 – now a prohibited firearm” on 15 January 2013. It shows the applicant firing eighty rounds from the M14 at his unapproved shooting range. He comments 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. This incident, among others, is the subject of an analysis by Mr Laurie Campbell of the Firearms Registry Compliance and Intelligence Unit (exhibit R1, tab 10). The witness’s concern was that the applicant tried to register the M14 to himself, despite being made aware by registry staff that it was a prohibited firearm that could not be registered to him, and posted on the Internet a video of himself using it.

25. Next, the witness noted that under s 19(1) of the Act, the Commissioner may issue a licence subject to such conditions as the Commissioner thinks fit to impose, and that a Dealer and Theatrical Licence is subject to the conditions prescribed in Part 5 of the Act and the Regulation, or as the Commissioner thinks fit to impose, and that the storage requirements imposed by the Commissioner are the same as for a Dealer’s licence, that is that Level 7.

22. The applicant operated his theatrical armourer business on what was known as the Heraghty property. On the property stood a residential brick veneer house, and to the side of the house was a shed in which Mr Lee stored the guns relating to his theatrical licence. The shed was built of Colourbond steel panels secured with external bolts that could easily be undone with an 8 or 10 mm spanner or a small electrical screwdriver. Level 7 storage requirements stipulate inter alia that all external walls of the premises must be of solid construction consisting of concrete, brick or steel. The shed did not, in the witness’s opinion, meet level 7 safe storage requirements.

23. Next, the witness stated that the applicant had failed to comply with the obligation in s 45(2) of the Act to record full details of each firearm acquisition, receipt, supply or transfer. Following the audit of the applicant’s premises on 16 and 17 July 2013, the witness performed a detailed audit of the registers kept by Mr Lee under his dealer’s licences. He identified a failure to record properly the acquisition of firearms from David Cook, including the acquisition on 13 August 2012 of a Fabrique Nationale FN 49 rifle, which was a military weapon and prohibited under item 5 of schedule 1 to the Act. The entry recording the acquisition did not include the licence number of the supplier, suggesting that it was unregistered or acquired from an unlicensed person, or both. A dealer can be authorized to possess such a firearm, and it was recorded that it was acquired under the applicant’s theatrical licence. After acquiring it, Mr Lee transferred it to his personal licence, marking it as a Category D, which it was not. The applicant also recorded the acquisition of three Nonrico SKS rifles from a Mr David Coleman; these were also prohibited military weapons. The applicant’s entries recording his acquisition of these rifles had left the licence number blank, suggesting that they were unregistered firearms acquired from an unlicensed person. A search revealed that Mr David Coleman was not licensed or permitted to have possession of the prohibited firearms. The entry also marked the rifles as being Category D, which they were not. They were not available to Category D licence holders, or vertebrate pest control shooters and were acquired under the applicant’s theatrical licence.

24. The applicant had also recorded the acquisition of an M1 .30 carbine from Mr Wayne Norman Head. That also was a prohibited military firearm and Mr Head was not licensed to obtain it, nor had it ever been registered before Mr Lee acquired it. Mr Lee also marked it as a Category D which it was not. In the entry recording his acquisition of the M1, the applicant had left the seller’s licence number blank, suggesting that it was an unregistered firearm acquired from an unlicensed person. On 20 May 2013, the applicant recorded the disposal of the M1 to Mr Michael Greenland-Broadsmith, but the entry had been struck out. On 17 June 2013, Mr Lee transferred the M1 from his dealer licence to his theatrical licence. A later entry showed the acquisition from Mr Greenland-Broadsmith of a Valmet Hunter firearm, again leaving the licence number of the seller blank. The applicant also marked it as Category D, which it was not. As a prohibited military firearm, the M1 is not available to Category D licence holders, or vertebrate pest control shooters.

25. Next, in the course of his audit, the witness noted 18 other entries that were inaccurately or incompletely recorded. They included the acquisition under the theatrical licence of a “Maegun”, the colloquial name for an AK 47 manufactured in China. The model was initially recorded as an AK 47, but that entry was struck out and replaced by “386”. The AK 47 is a prohibited military weapon that may not be used by Category D licence holders. The inaccurate recording of the gun’s model could hinder the ability of police to undertake a search for all AK 47s registered in Australia.

26. Next, the witness detailed the possession and supply of a prohibited firearm to Mr Robert Larkin. On 21 April 2012, the applicant acquired four Cobray MAC 11 pistols from a Victorian dealer, Mr John Fox, under his theatrical licence. They were recorded by the applicant as having a 10 round magazine, but it appeared from information given to the Victorian firearms registry that they had been transferred to him with 32 round magazines. A pistol magazine with a capacity of more than 10 rounds is a prohibited article under cl 4(4)(f) of schedule 1 of the WP Act. The Cobray MAC 11 is considered a prohibited firearm as its appearance resembles that of an Uzi submachine gun, which is a prohibited weapon: see item 7, schedule 1 of the Act. At the time of acquisition, and until 29 October 2012 (when the applicant obtained a prohibited weapons dealer permit), he was not authorized to have the 32 round magazines for the MAC 11. Mr Larkin applied for a permit to acquire a (non-prohibited) pistol, but not the MAC 11. On 27 August 2012, the applicant sold one of the MAC 11s to Mr Larkin. Police later seized the pistol from Mr Larkin. It was found to be a prohibited firearm and the 13 round magazine that it held was also prohibited. The applicant was not authorized to sell the MAC 11 with 13 round magazine to Mr Larkin, who was not authorized to have a prohibited weapon. Mr Larkin did not have a permit under the WP Act.

27. The witness said that he was disturbed by the video titled “Who gave you the right to take my guns from me?” That video showed Mr Lee making the following statement:

There is a worldwide battle that has been going on for many years. This fight is not for money, land or power. It’s a fight for freedom. One major aspect of this fight is titled gun control. Which is cleverly disguised as being about guns, but really it’s about government control. In 1996 Australia lost the battle, but not the war, and the fight still rages on. There is now a battle in the land of the free and the home of the brave for their civil liberties. If America falls to the criers for gun control, the rest of the world will no longer have a measuring stick to measure what we have lost. With every battle lost its just another nail in the door of freedom that’s already been slammed shut in Great Britain, Europe and other parts of the world. In Australia, some battles have been lost but the war is not over. Yet.

32. “It is my view”, S/Const Jackson states, “that this statement demonstrates beliefs held by Mr Lee which are potentially incompatible with the objects of the Firearms Act 1996”.

33. The witness then noted other public safety matters, including two separate warnings delivered to the applicant in relation to selling fireworks to the public without a permit. Police also received a report on 29 June 2008 that the applicant was supplying fireworks to unauthorized persons, including children, one young child having allegedly suffered an ear injury as a result of the fireworks being let off. It was also alleged that on 27 – 28 March 2010, the applicant had a stall at the Central Western Arms and Collectibles Fair at Orange. It was alleged that during that fair Mr Lee approached another firearms dealer’s stall and offered him cash to allow him to fire military grade firearms and machine guns. At that time the applicant had no prohibited firearms licence or collector’s or dealer’s permit.

34. Under the heading “Recent developments”, the witness noted that the applicant had posted a video on YouTube in which it was stated that it concerned “Shooting feral pigs in outback Australia. Last year the hunting DVD asked to come on one of my contract shoots in far western New South Wales, Australia”. As the video was posted in 2015, the witness took the reference to “last year” as being 2014, but the applicant’s licences and permits were suspended from July 2013, and subsequently revoked. The applicant’s reply to comments about such videos suggested that he still possesses and uses firearms, including an SKS rifle, in disregard of the present tribunal proceedings and firearms legislation.

35. S/Const Jackson said he would be very concerned if the applicant were given licences and permits. Since 2008 he had had significant traffic violations, had twice operated a paintball business after his paintball permit had expired, had on numerous occasions failed properly and fully to record firearms transactions, had operated an unapproved shooting range that was unsafe and had failed to comply with licence conditions. In relation to the “. 45 calibre birthday party”, he had claimed to have been test firing the weapons, but that was not the case, and the range did not have the required bullet recovery box or bullet stop. He had allowed his son to fire a high calibre pistol without ensuring that he was authorized to use it and had played a practical joke by secretly placing high powered ammunition in the gun. Despite knowing that the M14 was a prohibited firearm that he was not permitted to use, he used it and posted a video of himself doing so on YouTube. In that video he admitted that he was not permitted to use it on his D class licence, and so would have to sell it. He also posted a video of himself using paintball guns unsafely within a distance of less than 6 m while not wearing protective equipment. In four videos posted in 2015, he had appeared to show that he has used firearms very recently and while unlicensed. That showed a disregard for the licensing system of the Act.

36. In cross-examination, the witness was asked only whether the theatrical weapon storage premises had been passed by the police. He agreed that they were checked and passed.

Applicant’s evidence

37. The applicant did not file and serve a witness statement as directed by the tribunal, which complicated the proceedings considerably. He did, however, supply a document containing a mixture of submissions and factual statements, together with a supplementary letter. This material was admitted into evidence as exhibit A1, to the extent that it consisted of representations of fact. In his oral evidence at the hearing, Mr Lee adopted those statements of fact. The document begins by explaining that in relation to the YouTube and music videos, he had three separate business interests involved, the first as a firearms dealer, the second in relation to his contract shooting business and the third as an entertainer involved in the production of videos and music related to firearms. For example, in the M14 video, he explains that the Firearms Registry now considers the weapon to be prohibited and that he is therefore unable to own it on his personal licence, but was allowed to have it as part of his dealer stock and to test it on dealer premises, but not to use it in his personal capacity as a contract shooter. The video shows a portion of the testing and review completed on the rifle, and includes a reference to the registry’s decision to classify it as a prohibited military style firearm. The testing was done in order to confirm that the M14 was in safe working order, as a client in Queensland wished to purchase it for aerial contract shooting, and the testing was done on his dealer test firing facility. A serving army ordnance expert had assessed it as safe and was present for the filming of the test firing.

38. It was not uncommon that he would be testing and utilizing the footage to advance his YouTube profile, or utilize it for a music video. That was where his two interests, as a dealer and a video producer and musical artist, would often cross. The footage so collected during testing was later edited for the purposes of YouTube clip and therefore did not in most cases accurately depict the testing procedure completed for safety or functionality. It might be dramatized in the interests of theatre or cut in order to remove the more mundane tasks.

39. In relation to productions, the genuine reason was often blurred, because using testing footage for a video was very different from using firearms as props for the exclusive purpose of creating a production. In relation to productions where firearms are used as props, the law is very clear and for that reason, after discussions with the registry, he chose to apply for his theatrical armourer’s dealer’s licence. He had noticed in the course of his work that in many cases the film and video industry does not fully understand its obligations in this area. For example, the production company involved in his earlier productions believed that if an actor was licensed for a category of firearm, then he or she is complying with the law when participating in a production without the requirement of a theatrical armourer to be present.

40. The document then dealt with the respondent’s points as set out in the revocation notice dated 31 October 2013 (exhibit R1, tab 7d). That document contains a number of factual grounds listed as “Entry” followed by a number.

41. As regards Entry 29, the registry had recently taken a different view concerning the classification of prohibited military firearms, as until quite recently weapons such as SKSs, M14s and M1 carbines were registered to individuals with class D authority, and still were. Further, he believed that the appropriate action when recording the licence type is only to include the licence details if the owner has the authority of that class of license for that particular firearm, and as it was being surrendered as unregistered and the individual surrendering it did not have the required class of licence, the applicant was not required to record his licence details under s 45(2)(d).

42. As the firearms registry had only recently changed its stance on this point, he did not allow Mr Greenland-Broadsmith to take possession of the M1 carbine until the registry would issue him with a registration certificate. Even though he had documents from the registry confirming that he had been granted the authority to purchase an M1, he did that because of his own experiences with the recent reclassification of such firearms.

43. As regards Entry 97, at the time of the transaction the registry had only commenced the reinterpretation of category D firearms. He had an offer for a contract shooting feral pigs from a helicopter, and the company required him to have a .308 for the purpose. He intended to use the M14 as it was already in his dealer stock. The registry told him he could not use it on his class D licence because it was a prohibited firearm. He found this confusing as all semi-automatic firearms on class D licences are classed as prohibited, but in later emails they changed the term to “prohibited military firearms”. He located another semi-automatic .308, but it was sold before he could purchase it. He doubted whether the M14 was still being used by any military force, and had never been used by the Australian Army. He had asked the registry to review the rifle’s classification, but they had not agreed to do so and asked him to re-enter it back into his dealer stock. The M14 never left his stock and he never used it as a contract shooter. He did, however, find a buyer for it as it is permitted for category D holders in other States. As a requirement of his dealer licence and at the request of the purchaser, he did test fire the M14 on his licensed test firing facility.

44. Entry 98 contained another example of the recent reclassification of military-style, previously class D, firearms.

45. In relation to Entries 102, 103 and 104, the registry’s recent reclassification is exemplified by his own SKSs, which are still registered as class D firearms. The Valmet Hunter is in fact an altered AK47 action, and it was recommended to the applicant by the registry as an alternative to the M14. With reference to David Coleman, the applicant reiterated his understanding of the licence details to be recorded when a firearm is being surrendered as unregistered and the individual surrendering it does not have the requisite class of licence.

46. He agreed that Entries 21, 23 and 24 have confusing make and model descriptions, but that was not for any mischievous purpose and was explained clearly in the correspondence with the manufacturer and importer, Ron Owen.

47. In relation to the purchases from the Victorian dealer John Fox, the relevant magazine capacities were in fact 10 rounds, and Mr Fox had supplied an email confirming that he only sold the applicant magazines capable of 10 rounds.

48. The applicant believed the registry applied the wrong part of the legislation concerning theatrical permits, which did not apply to him because he had a theatrical armourer’s dealer’s licence, not a theatrical permit that permitted only the use of blank cartridges. The video clip postings over a 6-year period were not done without consultation with the registry as to the genuine reason required. He continually asked about the type of licence required for a particular scenario, and in fact initially the registry did not believe a theatrical armourer’s license was required. It was the applicant himself who insisted, on the basis of some strict interpretations of the Act. His telephone records showed over fifty individual contacts with the registry in relation to licensing and genuine reasons for the posting or future creation of such clips.

49. As an authorized theatrical armourer, and authorized dealer, it would make no sense for him to record the firearms being used by him on the authorized safe store location, as the two licences had the same storage location. They never left the safe storage location.

50. He believed that the authority of his dealer licence did give him permission to test fire firearms at his dealer premises without the requirement for the dealer premises to have an authorized range. Nevertheless, safety was of the utmost importance to him, and because of that he had at different times engaged the expertise of a firearm safety specialist for the design of, or inspections of, targets and bullet stops. He was never asked for any details of his bullet stop when granted his dealer licence, which included the authority to test, but he would certainly have been able to show an effective bullet stop.

51. As regards the video “.45 calibre birthday party”, the firearm in question, although called a .460, is in fact a .45. The pistol in question was written into his dealer register of acquisitions. His son Jarod Lee had obtained his high-calibre licence about a year before the event, and the applicant believed at the time that his permit was current. The birthday cake allegedly containing explosives actually contained fireworks, which he was licensed and permitted to use and possess. There were also no members of the public in the area, as the property is remote and all gates were locked. The danger was only theoretical. He was acting under the authorization of his dealer licence.

52. A few weeks before the video was filmed, he telephoned the registry and was told that his theatrical dealer licence had been approved. A staff member informed him that actors were not able to use live fire on the licence, whereupon he asked her what would be the position if he were making a video that required live fire. She told him that the shooter would need to have a licence for that category of firearm. Those were not the actions of someone who was not interested in understanding, or acting in accordance with, the law.

53. He had loaded the .460 with mixed rounds deliberately to test the reaction of a person who might be unaware of the mixed velocities. He did that safely by adding the low powered rounds first, and a standard powered round as the last cartridge in the cylinder. In that way he was able to inform any potential clients of the possible danger of that action.

54. In relation to the paintball games permit, he did not believe those actions were in breach of the regulation or the Act, as there were safety measures for recording the video such that the person being shot at in the video had several protective vests under his overalls, and the guns were wound down to a very low rate. The filming was not an actual game and all those present understood they were participating in a music video and were simply extras pretending to play a game. The so-called 6-metre rule is not a law, but rather a guideline. It is impossible to enforce and in practice is not possible.

37. He understood that certain actions, while within the law, might be perceived as cavalier or dangerous. He might have been prepared to post videos of them online five years ago, but they are no longer acceptable to him as someone might not understand the safety preparations or consideration given to a particular clip before it is posted online. Nevertheless in the thousands of hours of recordings that have been taken of him using and testing firearms over many years, there has never been an incident involving injury to himself or any member of the public.

38. In an attached email dated 11 May 2015 from the theatrical arms dealer John Fox to the applicant, the writer stated that an actor on a film set is always directly supervised by the armourer when given a firearm to use in the scene. The armourer is always within a few metres of the actor at all times and remains in control of the firearm. The actor is never allowed to leave the area where the camera is set with any firearm and is constantly returning it to the armourer. That happens every few minutes during normal film set activities. A day on a film set would see the actor being given the firearm to hold during the rehearsals and the subsequent take, and then a few minutes later he would return it to the armourer who is supervising. That occurs on almost a minute by minute basis during a normal day. The spirit of the legislation as regards actual possession is not broken.

39. The theatrical armourer’s permit allows an unlicensed person (an actor in this case) to have limited possession of a firearm under the direct supervision of the licensed theatrical armourer. If the actor were required to sign out and then in every few minutes, it would not be workable on a film set. The origin of the signing in and signing out book lay in the security industry, in which firearms are signed out at the beginning of a shift and signed in at the end. That is in a situation where the guard does have possession of the firearm for the whole shift. That is clearly not the same type of position as in the film industry.

40. In cross-examination the applicant was asked about a YouTube clip posted on 18 March 2015 (exhibit R2, p 379) concerning a feral pig hunt in western New South Wales, described as being “last year” when in 2014 he had no licence. He explained that “last year” was referring to 2013 and was just a way of saying it was not a current event. He did not tell everything about himself as he was acting in his video productions, which did not have to be precisely factual. The same was true of another clip (exhibit R2, p 388) in which he spoke of jamming problems with an SKS on a pig shoot, although at the time of posting the video he no longer had a licence.

41. He agreed that in 2008 he had failed to renew his paintball games permit or surrender the guns to the police, who impounded them three months after this permit expired. His third permit had also expired but the police had not wanted to take the guns because he had said they were still covered by his dealer licence and he had applied for a new paintball games permit. He now realized he should have transferred them to his dealer licence promptly and that he had been lax in failing to do so.

42. He did not think it was a public safety issue, however, just a matter of bookwork at a time when he had been very busy. Paintball guns use compressed air or carbon dioxide and are designed expressly so as not to cause injury. There had never been a case of one being used in the commission of a crime and it was obvious from their appearance, with a large tank on top, that they were not firearms. Firearms were a different matter. He agreed, however, that a paintball impact could sting or cause a welt.

43. The applicant was then referred to the safety rules he had laid down for his paintball field (exhibit R1, tab 8c), which included a requirement to wear a mask to protect the eyes and face. Yet in his “shoot-out” clip on YouTube dated 19 September 2011 he was shown wearing safety glasses but no mask, with some shooting being done at distances of less than 5 m. He replied that as he was singing for the purposes of the video he was wearing safety glasses but no mask. He made sure that nobody was shooting towards him, and in any case not all the shooters were actually using balls. To the suggestion that he was setting a wrong example, he replied that it was theatrical, and not a real game. It did not constitute a bad example as they made it clear in the talk that it was a simulation. The rule about the 6 m engagement distance in the Ranges Guide was not a compulsory rule, simply a guide.

44. He had pleaded guilty to firing a .45 and an M14 on an unapproved range, but he had thought he could use his dealer test range for the purpose and that he had engaged in an authorized test firing that was permitted by his dealer permit. The “.45 Calibre Birthday Party” video showed him using an unapproved range that had no stop butts, baffles, control mechanisms or fencing. He replied that they were firing into a gully with a big hill behind it in a place that was a kilometre from of the road, within locked gates and inside two paddocks. The paintball field 40 m away was never in use at the same time as the dealer test firing facility. At the previous (Jarod Lee) hearing the tribunal had said the facility was not unsafe. He admitted that a bullet could travel upwards, and he had placed a standard velocity cartridge in the last chamber of the cylinder when his son was about to fire the .45, but said that many things involve risk, but there was no risk when he was there. The standards applied only to authorized ranges, whereas a dealer test range required only a bullet stop. He denied that he had not been engaged in testing the guns, as he was in fact testing some guns purchased from John Fox that he had not previously fired.

45. He agreed that his dealer permit did not give him the authority to give the .460 to his son and that the tribunal in his son’s case had not accepted that he had been testing the gun, but said that Jarod had his own high-powered pistol permit (exhibit R2, p 144) and could shoot on his own permit. He admitted that it had expired in the previous November, but said he had not looked at it at the time, although he might have when it was first issued. Jarod’s ABCH licence had been reissued, which had had the effect of cancelling his permit, but he had thought that the permit would carry through under the renewed licence. He agreed that he had not known the law on that point.

46. On the adjourned date 29 July 2015, Mr Mattson played two of the applicant’s YouTube videos and pointed out that the applicant did not have a theatrical armourer’s license until 2012. The applicant said he did not think that had been a breach as the Firearms Registry had told him it was permissible. When he had become aware that his licence conditions did not authorize participation in theatrical productions, he had applied for a theatrical licence and obtained it in 2012. In 2010 he had been unaware of the technicality involved provided that he had a licence necessary for that particular firearm. In the YouTube clips he had been practising for hunting in any event. He agreed it was his responsibility to comply with the legislation but pointed out that in the licensing process there was no test of knowledge, only of safety matters. He had not known that he could use his guns only in narrowly defined circumstances. The same applied to the clip “Time to get a gun” filmed in late 2010. When he became aware of the situation, he rectified it and obtained his theatrical armourer’s license in May 2012. He agreed, however, that he had been firing live ammunition in the video when under cl 52(5) and (6) he should have been using only blanks.

47. During an audit at the Parkes property, D/SConst Grant Townley reported seeing two weapons he described as “.38 calibre CZ Scorpion submachine gun pistol[s]”, both of which contained live ammunition, and one of which had been recently fired (exhibit R2, p 161ff). They had been transferred to his theatrical armourer’s dealer licence a month earlier. He said that they had been test fired on his dealer licence, but in one of them a round had jammed sideways in the breech and the other was also jammed.

48. He had uploaded a clip dealing with his M14 and it was put to him that he knew it was a prohibited military weapon. He said it was designed in 1960 and was no longer used by any military force. The weapon that had sometimes been used by the U.S. Army was not that model or age, and was a different brand. He had been testing it for a client. There had been an exchange of correspondence with the Firearms Registry about whether he could register it, as the registry had previously accepted it as a category D but were now treating it as a prohibited military weapon, as a result of which he substituted an application for a Valmet .308. There had been some confusion as all semi-automatic rifles were prohibited in any event. Nevertheless, after he had been informed that the M14 could not be processed, he had made the video “M14 Now a Prohibited Firearm” which was described as a review of the rifle and showed him firing it at an unapproved range. He said he thought he was allowed to use the rifle at his test firing facility and said he was testing it as a dealer, which he had to do as he had sold it and had never previously fired it. He had described it as a “review” for business reasons and it was his practice to try to use testing footage for his YouTube postings. He had not said he was testing it as a dealer because he did not want to say where he kept his dealer guns.

49. He agreed that the tribunal in Jarod’s case had not accepted that he was testing the firearm in the video, but said he had thought it was permissible testing, which was why he had posted it on YouTube.

50. In the “.45 Calibre Birthday Party” video, which involved among other things shooting at a birthday cake containing fireworks, it was put to him that he was simply having fun but not testing. He replied that several of the handguns used he had not fired before, so that he was in fact testing. He placed the standard velocity round instead of a low-power cartridge in the last chamber of the .460 in order to ascertain whether mixing rounds in that way was dangerous. It was safe, although the perception could be that it was dangerous, but that was part of the attraction of the video.

51. He always tried to stay within the law and had thought that he could legally test the handguns on his dealer licence. When it was put to him that there had been several oversights and contraventions, he replied that he was breaking new ground and establishing a new business, using YouTube to promote his firearms business. He had tried to make testing interesting in that way. He might have had a lax attitude to his statutory obligations in the past, but not now. He was concerned with the spirit of the law, and safety was its objective. His failure to check whether his son’s high-power pistol permit was still current was not an unsafe action, as he knows his son and had shot with him many times. Nevertheless, he accepted his responsibility and wanted to fix the problems he had.

52. Not all M1 carbines were prohibited military weapons. It depended on the brand, and the weapon was not designed for military use at that time. It was put to him that his record books had showed that he had disposed of the carbine when he had not actually done so. He replied that he had told the purchaser that he would keep it in his safe because although the purchaser had a permit to acquire he wanted to ensure that the registry would accept it for an M1. He kept possession because he thought it was safer to keep it because of the uncertainty involved. He frequently held guns were people in case it transpired that they were not entitled to purchase them. There was no intent to mislead, as he was simply waiting for the firearms registry to confirm that the application could be processed.

53. The four MAC 11s (exhibit R2, p 333) did not come with 32-round magazines, he said. The seller John Fox had made a mistake, which he confirmed by letter, as the guns had been sold with 10-round magazines. They were now prohibited because of their resemblance to the Micro-Uzi, a military weapon. He had sold one to Robert Larkin (exhibit R2, p336). Asked why he had stated on the notice of disposal that it had a 10-round capacity, when it had been found to hold 13 rounds, he replied that an old magazine could be forced down so as to hold 13. He did not agree that he had no authority to sell it because at the time the registry said it was a category H, and he had an email to say that it was an H at the time. He knew that it was now a prohibited weapon.

54. He was then asked about the storage of his theatrical armourer guns in a steel shed, when the level 7 storage fact sheet issued in April 2012 stated that the premises could not be a shed or a garage. He said that as the storage facility had been passed, the Commissioner must have been “satisfied” that the premises were suitable within the meaning of the fact sheet. He received his theatrical armourer licence in May 2012, but as it takes six months to secure licence approval, the fact sheet could not have been in existence at the time. The situation was “messy” as the registry’s interpretations changed. For example, the Ingram Mini-14 was approved, even though the Indian Army does use it.

55. By way of re-examination, Mr Lee referred to exhibit A2, annexure 22 and said that he had asked the registry if the MAC 11 was a class H and had been told that it was. While they did not actually say that any class H holder could purchase one, that was the implication.

56. When he had sent the permit to acquire for the M14 to the registry, he had told them that they were mistaken in classifying it as a military weapon as it was obsolete, had no selective fire switch and had been adapted for contract shooting; further, he already had several obsolete military firearms on his D class licence, which proved that the firearms were of the correct type. There was no attempt to deceive, he simply wanted to clarify the situation. Exhibit A2 annexure 21 showed that Sgt Boggs had approved the test firing facility (though not as an approved range) by telephone, and it was on his dealer permit (exhibit A2, annexure 16). There is no established definition of test firing.

57. Turning to exhibit A2, annexure 16, his purpose had been to show his audience guns that are not usually available. He wanted to stay within the law, but the registry would not give him any advice. As regards the “.45 Calibre Birthday Party”, it was obvious from the video that he had never fired the gun before and that it was not an ongoing practice. It was a test as he had not fired several of the weapons before.

58. He sells his music videos to organizations such as gaming companies or to documentary producers. They are also advertising for his dealer business, and the videos sell his CDs about guns. He had become quite well known through YouTube. He had not done any shooting after losing his licence but had re-posted some old clips on YouTube in order to keep some life in the business.

59. Referring to exhibit A2, annexure 20, he said there was some confusion about the Glock models 17 and 18. The model 18 is a full automatic; on that basis, all Glocks would have to be prohibited because of their outward resemblance to the model 18. Therefore the MAC 11 should be permissible because it was only made in semi-automatic form. Annexure 24 showed eight permits to acquire relating to category D guns. The registry had passed them all, but they were now treated as being prohibited.

60. The applicant tendered some written character references, all of which make it clear that they are aware of the proceedings in relation to his firearms licences and permits. The respondent criticizes the character reference for making no specific reference to the full facts of the matter, and in particular the details of the criminal charges or the extent of the matters relied on by the respondent. It is unnecessary, however, for referees to go into that amount of detail. If they evince an understanding of the reasons why the reference is being sought and the general nature of the misconduct alleged against the requesting party, that should be sufficient to permit character references to be evaluated on their individual merits.

61. One reference is from Councillor Ken Keith OAM, mayor of Parkes Shire Council, dated 6 March 2015 which states that he has known the applicant for some twelve years and respects his approach to life and the contribution he has made and is making to the community. He and his family had also provided the basis for the band at Mamre Farm Fellowship each Sunday and he has a strong presence in the country music field. Mr Lee is a qualified pyrotechnician and provides many fireworks displays at local shows and charity events, including “Opera Under the Stars”, which raised $45,000 for the McGrath Foundation. He had also established a paintball park to provide an additional activity for the youth of Parkes, but it has had to be closed in the present circumstances. Mr Lee is a non-drinker and an upstanding citizen who fully acknowledges that firearms should be used in a safe and lawful manner. The restrictions he is currently under are affecting his business and as a result also have an effect on their rural community.

62. Bishop Harry Westcott’s reference dated 5 March 2015 states that he has known Mr Lee very well for over 8 years and the family for about 25 years. Bishop Westcott has always known Mr Lee to be a very loyal man of integrity who values honesty in all areas of his life. He is an active member of the church and its outreach ventures, hosts Bible readings at their family home and is a key member of the ministry’s band. He is generous in time and resources and finds great joy in serving and helping others. The reference gives a number of examples of his contributions in that way.

63. In a reference dated 9 March 2015, the Hon. Robert Borsak MLC states that he has known the applicant for over seven years and has always found him to be a responsible person, reliable and ethical in all his dealings. He believes the applicant to be someone who could be trusted with the authority of a firearms licence, and with his good reputation in the community, the community would be confident with his being granted a licence. The applicant is a good citizen and is the sort of person Mr Borsak would have no problems with being in possession of his firearms licences.

Respondent’s evidence in reply

82. The matter was then adjourned part heard to 16 November 2015. On that date the respondent tendered a further statement by S/Const Wayne Jackson dated 17 September 2015 (exhibit R6, including annexures) which declared inter alia that the applicant’s description of the bullet stop or backstop at his testing range at the Staircase property lacked the features that normally mark and effective bullet stop. In relation to the applicant’s claim that he had made over 50 individual contacts with the Firearms Registry in relation to licensing, reasons and the posting or future creating of video clips, he stated that the registry’s file notes of telephone conversations contained no record of the applicant ever being advised that live fire could be used in a theatrical production or that his son could fire a high-calibre pistol under his theatrical armourer’s license, or that there had been over 50 calls in relation to the creation of video clips.

83. The statement then referred to the applicant’s evidence about his application to register the M14:

I spoke to Barney [Jenkins] about this and he informed me that if I put the firearms through the system it would go for review before a panel and that is what I am now doing.

84. He stated that Mr Jenkins is no longer employed at the registry and that there is no record of that conversation. If it had occurred, it would be usual for a record of the conversation and the advice given to have been made. The only record advice from Mr Jenkins is that he advised the applicant that he could not have the M14 registered to him as it was a prohibited firearm.

85. The applicant had complained that the registry had changed its view of what constituted a prohibited firearm within the meaning of schedule 1 to the Act. He said that the registry makes an assessment of whether a firearm is prohibited or not on the basis of information provided to it by dealers in the documents completed by them. If a dealer does not provide correct details, it is possible that the registry might form the view that the firearm was not prohibited when it was.

86. In relation to the applicant’s evidence about the sale of an M1 carbine to Michael Greenland-Broadsmith on the ground that the purchaser had a permit to acquire it, or an email from the registry approving is acquiring it, S/Const Jackson attached a letter to Mr Greenland-Broadsmith stating that the M1 was a prohibited weapon under item 5 of schedule 1 as being designed for military purposes. He then stated that Sgt Colin Boggs had no authority to approve a shooting range or test firing facility as averred by the applicant. Further, the Corbay MAC 11 was a prohibited firearm in itself, not because it duplicated a sub-machine gun in appearance.

Respondent’s submissions

87. The respondent tendered two written outlines of submissions, one dated 7 May 2015 (“the May submissions”) and the other 17 September 2015 (“the September submissions”). The May submissions outlined the facts and background of the case, the tribunal’s role, the matters relied on, the statutory scheme and the principles of interpretation relating to it. It was submitted that the applicant has multiple contraventions of the Act, the regulations and the Weapons Prohibition Act 1998 (WP Act), which demonstrated that he should not be afforded the privilege of firearms licences and permits. In addition, it was contrary to the public interest that the applicant be issued with licences or permits, as the public interest requires that all licensees be aware of, and comply with, the legislative requirements.

88. Since 2008 the applicant had significant offences for disobeying traffic laws, had twice operated a paintball business after the expiration of his paintball permit, had operated an unapproved and unsafe shooting range and had allowed his son to fire a high-calibre pistol without ensuring that his son was authorized to use it. He had also secretly placed high-powered ammunition in the gun. Further, despite knowing that the M14 was a prohibited firearm, he had used it and posted on YouTube video of himself doing so, as he was going to sell it because he was not able to use it on his D class licence. In another YouTube clip will he had been shown using paintball guns within a distance of 6 m while not wearing protective mask, showing a disregard for safety and setting a bad example for other paintball users. In four videos posted in 2015, he had appeared to show that he has used firearms very recently, although his licence was cancelled in 2013.

89. The respondent also submitted that the applicant had failed in his statutory obligation as a firearms dealer and theatrical armourer to keep proper records of all transactions in the form approved by the Commissioner. That count was withdrawn in the September submissions.

90. Although as a dealer he would be expected to adhere strictly to the legislative requirements, he did not do so. Further, his contraventions could not be quarantined to a particular licence. They needed to be considered as a whole, and the applicant’s attitude to compliance was relevant to all licences in relation to which the applicant was applying. Finally, it was not in the public interest for the applicant to have access to firearms in circumstances where he fails to show any contrition for, or acknowledgement of, the significance of his conduct.

91. The respondent’s September submissions began by arguing that the applicant was an argumentative and unimpressive witness whose evidence should not be accepted and needed to be treated with caution. He had admitted to keeping some of his answers in general terms, explaining that he was concerned about being trapped into saying something that he did not mean and could be misconstrued. He had given explanations of his actions three years ago that he was not sure were correct but that he believed were part of the reasons why he did things. In the M14 YouTube clip he had said he was doing a review of the weapon “just to show you what it can do”. His explanation was that he was testing it for a client under his dealer licence, but that was not what he had said on the video clip. In that and other instances he had given unconvincing explanations for his actions and the evidence adduced on behalf of the respondent was to be preferred to that of the applicant and his supporting witnesses.

92. The submissions then point out that ss 8(1) and 7A stress that licensees are authorized to possess and use a registered firearm only for the purpose established by the licensee is being the reason for possessing or using it. Further, a firearms dealer does not have authority to use a firearm to which the licence applies. The authorization is to “possess, manufacture, convert, acquire, supplier, repair, maintain or test, in the course of carrying on the business of a firearms dealer”. The applicant could not therefore use firearms registered for the designated purposes for the purpose of a theatrical production. The licence holder must comply with the obligations under each licence category when using a firearm for the purpose for which it has been obtained, and cannot use it for two purposes and comply with the lesser obligations.

93. The applicant attempted to justify giving the .460 pistol to his son to use on his range, although he had no permit for it, by saying that he was using it under his dealer’s licence. Further, at that time he did not have a theatrical armourer’s license. His use of live ammunition in his video clips was unsafe and unauthorized, as his theatrical armourer’s license, once obtained, would not have authorized the use of live ammunition. His testing range also lacked an efficient bullet recovery box or bullet stop.

94. The applicant had also contravened ss 36 and 51A by acquiring unregistered guns from unlicensed persons. The applicant had argued that the Firearms Registry had “re-interpreted” schedule 1 of the Act – “Such a submission is nonsensical”, Mr Mattson said. Schedule 1 defines a prohibited firearm, and Parliament has amended it twice since 1996, but only in respects irrelevant to the current proceedings.

95. The written submissions attach a schedule of incidents, contraventions and concerns, with supporting evidence. The respondent said most of them had occurred in the period from 2010 to 2013, but earlier incidents showed his ongoing lax attitude. The schedule is further discussed below.

96. At the hearing Mr Mattson reiterated those points and submitted in detail that the matters listed in the schedule reflected a sustained disregard for the licensing scheme and public safety. His evidence lacked credibility, as was notably apparent in the case of the “.45 Calibre Birthday Party” video clip. He had pleaded guilty to using an unapproved range on which he had allowed an unauthorized person to use a .460 revolver without checking his licence or permit, had placed his own interests above the law, had engaged in unsafe activity and had attempted to argue the breach away, although admitting it was a contravention. The applicant should not have any licence or prohibited weapons permit.

Applicant’s submissions

97. The applicant relied on written submissions prepared by Mr David Price of counsel which took the position that as several of the original reasons relied on by the respondent had either been withdrawn or satisfactorily explained, or are no longer relied on by the respondent, it remained to consider the matters set out in the table annexed to the respondent’s final submissions. The submissions then proceeded to deal with each of the 28 incidents listed in the schedule. Those responses are considered below.

98. The submissions then turned to a number of general matters. First, it was pointed out that while the oral evidence of the applicant, who appeared unrepresented in the tribunal, took a guarded attitude in cross-examination, that stemmed from his desire to avoid having his evidence twisted or misinterpreted, as he saw it. His attitude to the respondent and his legal representative was coloured to some extent by his and his son’s dealings with the registry for several years and a resulting sense of grievance.

99. After conducting an investigation into the applicant’s conduct and history following a complaint from the police, WorkCover had found the applicant to be a “fit and proper person” to maintain his security clearance which allows him to deal in, and utilize, explosives and pyrotechnics. If it was relevant, as the respondent argued, to treat the applicant’s traffic record as a pertinent consideration, that must also be true of the WorkCover finding. The applicant had openly conceded some breaches and mistakes, and had as a result paid a significant price for them. Nevertheless, he should be treated as a person of good character who is well-known, experienced and respected in the hunting and shooting industry. He clearly possesses significant expertise in firearms, hunting, contract shooting, firearms dealing and paintball field operations as a result of his approximately 30 years of experience in those fields.

100. The firearms regulatory system is complex, fluid, often ambiguous and inconsistent. On occasion the registry has provided inconsistent advice or attitudes to regulation and enforcement in the past. In order effectively to operate his several firearms related businesses, the applicant had obtained every conceivable licence and permit in order to operate within the law, his theory being that his activities would always be caught by one or more of his licences or permits. In fact, however, he had arguably over-regulated himself and as a result on occasion confused himself and the regulatory body. Nevertheless, when uncertain on a particular point he invariably sought advice from the Firearms Registry or the local police. His intention had always been to remain within the legal and regulatory boundaries of the legislative scheme. He had never caused or posed any actual danger to the public at any time. His conduct as a whole poses virtually no risk to public safety. Indeed in the past it had the effect of enhancing public safety by encouraging the registration of unregistered firearms. To deny him the ability to earn his income for ten years (s 44A(3)(a) and (c)), Mr Price submitted, would constitute punishment out of proportion to his relatively minor transgressions, which were at the lower end of the scale of seriousness. The respondent’s primary concern appeared to be his lack of compliance with regulations and, on occasion, some (technical) safety breaches.

101. A compromise outcome would therefore be appropriate, involving corrective measures such as participation in a firearms awareness course and the establishment of some kind of dealer mentoring and conditional reinstatement. The applicant has made himself more aware of the regulatory regime during the past two years and will continue to do so in the future. He has learned many significant lessons from this process.

Consideration

The tribunal’s role

102. Under s 63 of the Administrative Decisions Review Act 1997, the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner’s decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77. The proceedings are non-adversarial in nature and there is no onus of proof in the sense that it applies to other legal proceedings: Hardy v Commissioner of Police, New South Wales Police Service [2006] NSWADT 167.

103. The tribunal has jurisdiction to exercise any functions conferred or imposed on it by the Civil and Administrative Tribunal Act 2013 (s 29) and the Firearms Act, including the Commissioner’s refusal to issue a licence (s 75(1)(a)). The tribunal is to make its own decision and there is no presumption that the Commissioner’s decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 358, 357. As the use of the word “may” in ss 11(7) and 24(2) makes clear, the Commissioner (and by extension the tribunal) has a discretion whether or not to issue or revoke a licence. The Act provides no explicit guidance on how the discretion should be exercised, however. Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is a “privilege that is conditional on the overriding need to ensure public safety”. Consistently with that approach, the Act confers on the respondent the power to revoke or refuse to issue a licence in circumstances where it is considered that the holding of a licence is not in the public interest. The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities, to the standard enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336.

The respondent’s criticism of the applicant’s evidence

104. Before dealing with the individual items relied on by the respondent in relation to the central issue of public interest, it is necessary to consider two general matters. First, the respondent submits that the applicant’s oral evidence is unreliable and lacks credibility. He describes the applicant as an argumentative witness, which is true but also commonly the case with unrepresented non-lawyer parties testifying in their own case. The respondent also points to the exchange in the 12 May transcript (lines 862 to 881) in which the applicant said he did not want to be “too concrete” in his answers under cross-examination because, on the basis of his experience in the Jarod Lee case, he did not want the respondent’s representative to “lock me down to something I don’t actually mean”. That appears to be little more than a candid layman’s version of the advice that counsel commonly give their witnesses to keep their answers short and to the point so as to minimize the scope for the attribution of unintended meanings.

105. Then there was the exchange on 29 July (lines 844 to 847) in relation to the reasons for the shooting display in the “.45 birthday celebration” video, when it was put to him that he had made up his expressed reasons for it, and he replied, “I don’t know. I may have made that up. It’s in my mind as part of the reason I did it so I’m trying to be honest with you. Did I actually make it up right now? It’s been three years, all right. So over the time, I don’t know if on the day, because, I don’t know exactly what I was thinking on the day”. That would certainly warrant treating the applicant’s testimony with at least the normal degree of caution applied to the evidence of parties in support of their own case. It seems unlikely, however, that a witness who was seriously intending to mislead a court or tribunal would have described his or her thought processes in that artless way.

106. The respondent also pointed out that the applicant had stated matters differently in his YouTube videos from the manner and content of his oral evidence. In the video “M14 -- now a prohibited firearm” (respondent’s schedule, item 18) he had said that the rifle was still used in the Australian Army for special purposes, whereas in his statement and submission exhibit A1, he had said it was not in service. That apparent contradiction was not put to the witness and there is no evidence as to which version is correct. In any event it is irrelevant to whether it is a prohibited weapon, as the M14 model in question was probably “designed” for military purposes within the meaning of item 5 of schedule 1.

107. Again, he had described the firing of the .45 as a birthday celebration, whereas he told the tribunal that it was a test firing on his dealer licence. His explanation was:

I was using test firing. Calling it a 45th birthday celebration.

We’ve got a combination of two things going on here.

One making a video that has got to try and be interesting and I’m testing guns. If I just go there and test guns and say I’m testing this gun, bang, bang, bang. There is no video in that. There is no way I can build a business on YouTube of just doing the ordinary side of testing. I still need to test those firearms….

I don’t see why I can’t as a dealer, if I need to test all of these firearms, to make it more entertaining to grow another business. And if I’m within the law then, that is all I have ever tried to do is to stay within the law.

108. His position was thus that he was embellishing the scene for entertainment and promotional purposes. Other liberties with the facts that he took in his video productions he explained as being because he did not want everyone to know where he stored his guns – in other words, security concerns – or because he wanted to maintain some confidentiality about the exact timing and nature of his business activities. Provided that it does not amount to misleading and deceptive conduct in trade and commerce, as appears to be the case, there is nothing necessarily reprehensible about such conduct. Similarly, it is a standard, although not universally applauded, practice for makers of professional, studio-produced documentaries to stage events or activities for dramatic purposes without informing the audience. Overall, therefore, I conclude that the applicant was a reasonably forthright witness whose evidence can be accepted subject to the usual caveat mentioned above.

The applicant’s approach to the legislation

109. The respondent’s second general criticism is of what was termed the applicant’s “chop and change mentality” as illustrating his lack of regard for the requirements of the Act, “because the Act is not structured to allow a ‘chop and change’ mentality…A licence holder cannot use a firearm for two purposes and comply with the lesser obligations”.

110. The respondent points out that under s 7(2)(a) of the Act, a licensee may not use a prohibited firearm or pistol for any purpose otherwise than in connection with the purpose established by the person as being the reason for possessing or using it. The list of licence categories in s 8(1) makes it clear that the licensee may use a firearm of the kind to which the licence applies only for the purpose established by the licensee as being the reason for possessing or using it.

111. While a licensee whose reason under s 12 for holding a licence is firearms collection would thus not be authorized to use a collection firearm for recreational hunting or vermin control, that is a consequence of the nature of the reason for the grant of a licence. The question will always be whether the particular activity engaged in by the licensee at the relevant time is permitted under the terms of the licence or licences that he or she holds.

112. As Mr Price argued in his written submissions, it is possible to be doing more than one thing at the same time and relying on more than one licence or genuine reason in relation to a single activity. For example, testing a firearm could also amount to practising with it, or “sighting it in” for the purposes of hunting or professional contracting. And there would be no legal barrier to filming that activity, whether live ammunition was being used or not, just as one could film oneself hunting and killing a fox and posting the footage on YouTube, provided that the right licences and authorities were held. To the extent that this is seen as problematic it is more a function of the firearms legislation’s complexity than of any improper practices by licensees. In the applicant’s case it was compounded by his concern to cover himself against infringing the legislation by seeking every conceivable licence and permit.

114. The legislation does not define “test” or “testing” or prescribe permissible types of tests or targets. Nor is there any reason why the dealer could not describe a test as a “review” if a test were actually being conducted, as was the case here. The applicant stated that the reason the particular types of targets were used was in order to make the video more interesting to that the viewing audience and there was no actual danger to the public in using them as targets. That appears to be correct, but the fact remains that the range was unapproved and a test could not lawfully be carried out on it. Subsequently the applicant was found guilty of using the M14 on an unapproved range in the same proceedings as led to Jeffreys DCJ’s dismissal of the related charges under s 10(1)(a).

115. Item 19: The videos titled “I’ll give up my guns” and “Time to get a gun”: the respondent submits that in 2010 the applicant was shown in the YouTube videos as using firearms for a theatrical production without holding a theatrical armourer licence and permit, and using live ammunition in a theatrical production (see item 7). The applicant maintains that the licences he held at the time entitled him to fire those firearms and that the use he was making of them can readily be described as activity associated with the reasons for the licence is held at the time, namely hunting and vermin control.

116. When it was anticipated that more videos would be made, the applicant sought advice from, and had discussions with, the registry, leading to his obtaining a theatrical licence. He said that the registry initially took the view that he did not need a theatrical licence or permit for that purpose, and repeated that advice when he told them he intended to apply for one nevertheless. The applicant submits that he “chose to increase his exposure to further regulation in order to make sure he was fully compliant with the current law”.

117. The respondent states that no record could be found of such conversations or advice (exhibit R6, para 12). Nevertheless, I find it hard to accept that the applicant would have fabricated a series of conversations in that manner. Given the reality of staff turnover in public service departments, the possibility that some such assurances could have been informally given cannot be excluded. Further, as I have pointed out above, the meaning of “film... production” in the legislation is unclear. While I have proceeded on the basis that the applicant’s use of a production company and the professional nature of the video productions does bring the YouTube videos within the definition, the matter cannot be regarded as entirely free from doubt. While this item does count against the applicant’s case, it does not have decisive weight.

118. Item 20: The applicant’s traffic offences: on 28 March 2011, the applicant was fined for exceeding the speed limit by more than 30 but not more than 45 km/h. In 2012 he was again fined, for driving while his licence was suspended. The respondent takes the view that these convictions, which were not insignificant, revealed a lax attitude to legislation designed to protect the safety of the public. The applicant takes the position that they are not relevant to the determination of any issue in these proceedings. As the convictions are not trivial, I accept the respondent’s submission, but do not think they merit substantial weight.

119. Other incidents giving rise to concerns. Items 21 and 22: The applicant was found guilty and fined in November 2000 for six explosives offences in Queensland, but in the applicant’s submission they are stale matters 15 years old relating to the sale of fireworks in Queensland. At that time the applicant held a current New South Wales licence to possess and sell fireworks, but a Queensland court held that his licence was not valid in Queensland. A $3000 fine was imposed without conviction.

120. The applicant was also suspected of selling fireworks to unauthorized persons in New South Wales, despite receiving two warnings. The applicant’s response is that he has held a New South Wales fireworks licence for some 20 years which authorizes him to use, possess and sell fireworks. In New South Wales fireworks have been banned since 1986, but there is a “Single Occasion Licence” that is available to the general public through WorkCover New South Wales. He also points out that a WorkCover internal review of his fireworks licence reaffirmed that he was a fit and proper person to hold an explosives and pyrotechnics licence. As this item is unsubstantiated, and to some extent contradicted by the WorkCover finding, it cannot be given significant weight.

121. Item 23: Alleged attempt to access military grade firearms: according to a police intelligence report, on 27 to 28 March 2010, Mr Lee had a stall at the Central Western Arms and Collectibles Fair held at the National Field Days site in Orange. During this event, Mr Lee was said to have approached at least one other stallholder and firearm dealer and offered him cash to allow him to shoot military grade firearms and machine guns. The dealer declined. At the time the applicant was licensed for categories A, B and H only and consequently was not authorized to possess or use such weapons (exhibit R2, tab 41).

122. The applicant states that he enquired of the dealer if he were legally able to fire and test his firearms at a range. The dealer explained that he would not be authorized and if the applicant wanted to become involved in the industry he would have to obtain his own licences. The applicant took that advice and obtained the appropriate licences for himself. He maintains that he had full regard for the law during that exchange and any allegation of impropriety is unfounded. As it is not possible to test the accuracy of this report, which apparently relates to an isolated incident, it cannot be regarded as made out.

123. Other matters of concern. Item 24: Lack of understanding of obligations as a licence holder: the respondent referred to a number of points in a hearing on 12 May 2015 when the applicant indicated a lack of clear knowledge of his obligations as a licence holder. Thus,

• he “guessed” that he could not have prohibited firearms under category B,

• he did not know in 2006 when he obtained a category H licence that he could not have prohibited firearms,

• he did not remember if he bothered to familiarize himself with the legislation in 2006 when seeking a category H licence,

• he “never looked into” whether he could have prohibited firearms under his category H licence,

• he said, “Well I’ve read, in part, I sort of know some of the Act. And at other times I just know the Act a bit”,

• he said “sometimes” and “it could be true” that he did not trouble to familiarize himself with his obligations when he obtained his dealer’s licence,

• he said he was unaware of the re-application process for a high calibre pistol permit and category H licence.

182. At the hearing on 29 July 2015, he agreed that he had a lax attitude in the past and that there had been a combination of mistakes. The respondent submitted that licence holders are expected not only to comprehend and understand their obligations, but also to comply with them: Bottomley v Commissioner of Police [2005] NSWADT 211, [20]. A person with a high level of interest and experience in firearms should keep pace with the legislative obligations: O’Donnell v Commissioner of Police, New South Wales Police Force [2009] NSWADT 162, [25].

183. The applicant submits that on each occasion when he did not understand a legal or regulatory requirement, he would rectify the problem in a timely manner. More often than not that was achieved by directly contacting the registry and making enquiries. The reason he applied for, and obtained, numerous firearms-related licences was not to be able to do whatever he wanted, but always to remain within the law. That was his goal and intention in the past and it remains so now.

184. The applicant’s repeated contacts with the registry and his numerous applications for licences and permits do suggest a continuing desire to remain within the law. At the same time, however, he took insufficient steps to become familiar with the detail of the regulatory scheme and relied too much on informal advice from registry staff, who were not authorized to give binding legal advice and who, as was seen above, sometimes expressed inconsistent views or made mistakes, as in the case of the M14, the M1 carbine and the Garand. That is not a criticism of the respondent’s officers, but a reflection of the myriad of firearm types, makes and models, and their interaction with a complicated regulatory system. He took insufficient steps to ensure that he renewed his licences and permits before they expired and resorted to improvised methods of record-keeping.

185. Item 25: Unsafe operation of a paintball range in the video “The Shootout” (see also item 7): the applicant breached his safety rules in permitting use of a paintball marker within the non-engagement distance and while not wearing a face mask. The documents he had supplied in support of his application for a paintball permit gave the minimum engagement distance as 6 m. S/Const Jackson observed that in the video Mr Lee is seen shooting at a distance of less than 6 m and walks within an unsafe distance of the barrel and arc of fire of another paintball user (exhibit R2, paras 91 to 94). He was not wearing a face mask but only eye protection.

186. The applicant submits that the video was purely a promotional clip and that everything was done within reasonable safety parameters, as evidenced by the fact that no person was injured or put in to any actual danger at the time. The alleged breach did not occur during an organized paintball game, but in a theatrical, planned and controlled environment that was necessary for the filming of the video. The production company oversaw the video clip.

187. Extra safety measures were taken, such as the use of additional padding. The paintball guns were set at the lowest velocity and some did not contain any paintballs. All the participants were fully aware that it was a staged demonstration. No person was placed in danger at any time. This although the applicant believes that the occasion was not unsafe, he would not repeat the practice as he is now aware that the registry considers his actions inappropriate.

188. I accept the applicant’s submissions on this item. It was clearly a staged event and the participants were playing prearranged roles. The credits include a list of the participants and the particular roles they were playing. There was no significant danger to any person, although it is understandable that the registry, being unaware of the circumstances, took a different view at the time.

189. Items 26 and 27: Inability to see safety risks from non-compliance with legislation. Examples were his failure to appreciate the safety risk in keeping paintball guns when unlicensed, and in operating an unapproved range. In relation to the paintball guns, the respondent relied on O’Donnell at [32], where the tribunal said:

A person not familiar with firearms might not make the differentiation between an operational firearm and one that had pieces missing if the firearm was pointed at them. They might reasonably believe that the firearm could cause them damage. There can be no doubt that it could give rise to an apprehension of fear or harm.

190. The applicant concedes that keeping the paintball markers while awaiting renewal of his licence was a contravention, and is something that could have been avoided by promptly transferring the markers to his dealer stock. There was no risk to public safety, however, as the police knew at all times where the markers were, the safe keeping requirements were complied with and the markers were not used or removed from their safekeeping during that period. O’Donnell is irrelevant as no person came into contact with the paintball markers in question.

191. I accept those submissions. In addition, O’Donnell would not appear to be in point in view of the applicant’s unchallenged evidence that a paintball marker cannot be mistaken for a firearm, with or without parts missing, because of the large air tank on top and that there is no known case of a paintball gun being used in the commission of a crime. As regards the safety risks of operating the unapproved range, the applicant had an experienced army firearms range expert, Mr Marchment, in attendance at various times to assist and check his range facility. The respondent took exception to the fact that the unauthorized shooting range was about 40 m from the paintball field, but both facilities were under the applicant’s control and there is no reason to doubt his evidence that no paintball events were held when there was firing on the range. As Mr Price also pointed out, the applicant was legally able safely to shoot on that particular property with his personal firearms, of the same .308 (or 7.62X51) calibre. In the circumstances the safety risk seems to have been more theoretical than real. Nevertheless, the use of the unapproved range was a breach of the Act and led to criminal proceedings.

192. Item 28: The applicant’s “chop and change” attitude, which the respondent contends is fundamentally wrong. As has been discussed above, that proposition is too broad to be sustained.

193. In conclusion, the respondent submits that the applicant should have no firearms licence or permit whatever. The fact that he has been without his licences for two years is irrelevant as it cannot be assumed that the effluxion of time will itself bring about any relevant change of attitude or behaviour: Lee v Health Care Complaints Commission [2012] NSWCA 80, [73]. There is no evidence to support his claims of lost income, but in any case the public interest would outweigh such a consideration.

194. The applicant submitted that the firearms regulatory system is complex, fluid, often ambiguous and inconsistent. The Firearms Registry has on occasion provided inconsistent advice or attitudes to regulation and enforcement in the past. In order effectively to operate his several businesses within that system, the applicant obtained every conceivable licence and permit in order to work within the law and not breach any of the various regulatory standards. His theory was that if he adopted that approach, his activities would always come within one or more of his licences or permits, and he would therefore not fall foul of the Act or regulation. In the result, however, the applicant had arguably over-regulated himself and as a result on occasion had confused himself and the regulatory body. Nevertheless, if he was uncertain on a particular point, he invariably sought advice from the registry or local police, on the assumption that if he raised any contentious or confusing matters with them, he would remain on the correct side of any regulatory line. The applicant had never caused or posed any actual danger to the public at any time. His conduct, taken individually and as a whole, posed virtually no risk to public safety. In fact in the past his conduct as had the effect of enhancing public safety by encouraging the registration of unregistered firearms.

195. To deny him the ability to earn his income any longer would amount to an extra-curial punishment out of proportion to his relatively minor transgressions, which are clearly at the lower end of the scale of seriousness. The respondent’s position, Mr Price contended, would see the applicant deprived of the opportunity to re-apply for a firearms licence for a period of 10 years: s 44A(3)(a) and (c). It would be preferable to arrive at a compromise solution by prescribing corrective measures such as participation in a firearms awareness course and some type of dealer mentoring along with conditional reinstatement of the applicant’s licences. The applicant had made himself more aware of the regulatory scheme during the past two years and three months and will continue to do so in the future. He has learned many significant lessons from that process. He earns his income from businesses that require various firearms licences and over the last two years has lost a substantial amount of income. To affirm the decisions would result in a pecuniary outcome out of all proportion to any alleged breaches or eventual findings.

196. The respondent opposed any form of compromise and said the applicant’s overall conduct was bad.

Overall evaluation

197. Analysis of the evidence and submissions has considered each of the items relied on by the respondent in turn. It will be seen that of the 28 items, 14 have been established. Another 7 have also been established, but are not of a serious nature. One of them, the breach of the storage requirements at the Heraghty property of the theatrical licence firearms stored in safes in the Colourbond shed, involved a facility that had been approved by police who were authorized to do so. The finding of a breach in those circumstances, though legally required, is rather harsh. The remaining 7 items have not been made out.

198. The Act’s overriding principle as set out in s 3 is the ensuring of public safety. That consideration outweighs that individual’s claim to possess and use a firearm: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218, [24]; Huckel v Commissioner of Police, New South Wales Police Force [2008] NSWADT 347.

199. In the present case there is no evidence of any egregious safety lapses, with the possible exception of the “birthday party” episode. But the prevention of actual instances of dangerous conduct is not the only object of the Act. As s 3(1)(b) makes clear, it also seeks to improve public safety by imposing controls on firearm possession and promoting their safe storage. Other explicit objects include s 3(2)(b), “to establish an integrated licensing and registration scheme for all firearms” and s 3(2)(d), “to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms”. The public interest requires that all licensees be aware of, and comply with, the legislative requirements: Cook v Commissioner of Police, New South Wales Police Service [2003] NSWADT 30. The public needs to be able to feel confident that those who are granted a firearms licence will comply with the legislative requirements: Morris v Commissioner of Police, New South Wales Police Service [2002] NSWADT 223.

200. The evidence shows the applicant to be a man of good character and a pillar of the Parkes community. He has no associations with questionable elements. While his record is not unblemished, he receives strong support from prominent referees, the mayor of Parkes Shire, Councillor Ken Keith OAM, Bishop Westcott and the Hon. Robert Borsak MLC, thus comprehending representatives of community, church and state. I have explained above the reasons for accepting these references on their individual merits. The applicant also featured in a prominent role in an SBS reality television series, Living with the Enemy (episode 5), from which he emerges in a favourable light. His contraventions for the most part stemmed from his pioneering of a new business model, of which he was able to make a success, of using YouTube clips to promote his various enterprises.

201. The applicant acknowledges that he was lax in complying with legislative requirements in the past and assures the tribunal that he would not repeat the prior conduct that gave rise to concerns. He would also not make videos such as some of those he produced in the past.

202. While those assurances can be accepted, there is another aspect of the issue that must be borne in mind. Regulatory licensing structures, whether in relation to firearms, health care, public transport or a variety of other matters affecting public safety, also serve the public interest by establishing a regulatory system that helps to preserve public confidence in the protection of public safety. The Court of Appeal explained that function in Health Care Complaints Commission v Do [2014] NSWCA 307, [34] – [39]:

The objective of protecting the safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise (at [35], emphasis added).

203. The Court of Appeal gave further guidance on the operation of the deterrent factor in New South Wales Bar Association v Meakes [2006] NSWCA 340:

113 The point sought to be made in the authorities is, no doubt, that the Court or Tribunal making an order in disciplinary proceedings must have squarely in mind the protective purpose of the order, in the public interest. That is not to say that the adverse (punitive) effect on the practitioner should be ignored; clearly no order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose. 114 That being said, it may also be noted that the protective purpose may operate in different ways. First, by its direct effect upon the practitioner, the order will either remove that practitioner from membership of the profession (by disbarment or suspension) or will provide a deterrent against the repetition of such conduct (in the case of a fine or reprimand). There are also important but indirect effects to be considered. First, the order reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly and more specifically, it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession. The underlying purpose is not self-aggrandisement on the part of the profession, but a recognition of the social value in the availability of the services provided to the public, combined with an understanding of the vulnerability of many who require such services.

204. Although firearms law incorporates a number of criminal sanctions, it is not part of the criminal law as generally understood. But those cases, among other authorities, show that the concept of deterrence, both specific and general, which plays a large part in the criminal justice system, also has an application in this type of context. Specific deterrence as regards sanctions for breach of a licensing requirement protects the public by preventing the relevant licensee from engaging in further violations and ensuring that the licensee appreciates the adverse consequences of infringing conduct in the event that he or she is again issued with a licence in the future.

205. In the present case there is little likelihood of the applicant’s reoffending in the same manner. Given the opportunity to hold a licence again in the future, he is unlikely to seek to push the boundaries of permitted conduct or to neglect the obligation to seek licence or permit renewal and to remain up to date with legislative requirements. The requirements of special deterrence have been satisfied.

206. Do and Meakes explain the operation of general deterrence in the field of professional conduct, and by analogy in firearms licensing, by denouncing such misconduct and helping to maintain public confidence by signalling that those whose conduct does not meet the required standards will be visited with consequences, including not being permitted to hold a firearms licence. The applicant’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.

207. It will be noticed that most of the breaches that have been established relate to his dealer and theatrical licences and permits. I find that it is not at present in the public interest for him to hold such licences and permits.

208. Infringements that relate to his personal licences are virtually non-existent, and those that do (such as failure to renew) are of a less serious nature. The respondent relies on Hijazi at [47] as authority for the proposition that the tribunal should not compartmentalize or quarantine conduct or contraventions to a particular licence or permit. The conduct may, and does, reflect more broadly against the applicant and shows an entrenched and fundamental failure to understand and comply with his obligations as a licence holder, it is submitted.

209. While Hijazi does explain that contraventions in relation to one licence are not to be treated as irrelevant to other licences, it does not suggest that contraventions should be treated as having equal weight in relation to all licences. The applicant’s transgressions in relation to his dealer and theatrical licences and permits are not necessarily decisive on the public interest issue in relation to his personal licences. I therefore find that it is not contrary to the public interest for him to hold personal ABCDH firearms licences and permits.

210. The final category of breaches are those relating to his paintball operations. These are of a different class from those arising from the possession or use of actual (as against deemed) firearms. For the reasons set out above I think there is virtually no risk to public safety in the applicant’s holding the necessary permits. Indeed, as Cr Keith OAM explains, there is a demand for his services in that activity, which is seen as beneficial to the Parkes rural community by providing activities for young people. I find that it is not contrary to the public interest for the applicant to hold a paintball permit.

211. Orders. The decisions under review (collectively referred to as “the decision”) are varied as follows:

1. In so far as it relates to the applicant’s application for a category ABCDH firearms licence (No. 106968687) and for a high calibre pistol permit (No. 410409280), the decision under review is set aside.

2. In so far as it relates to the revocation of paintball games permit No. 405606123 previously held by the applicant as licence holder for the Lee Family Trust trading as Broken Hill Paintball, the decision under review is set aside.

3. In all other respects 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