McGlashan v Commissioner of Police

[2021] NSWCATAD 86

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

McGlashan v Commissioner of Police [2021] NSWCATAD 86

Hearing dates:

On the papers

Date of orders:

31 March 2021

Decision date:

31 March 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Naida Isenberg, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

LICENSING – firearms – offences proven without conviction - public interest – likely future conduct

Legislation Cited:

Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Crimes (Sentencing Procedures) Act 1999

Firearms Act 1996

Cases Cited:

AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5
Cleofe v Commissioner of Police, NSW Police Service, Alpha Intelligence Securities Pty Ltd v Commissioner of Police, NSW Police Service [2001] NSWADT 2

Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657

Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16

French v Commissioner of Police, New South Wales Police Force [2013] NSWADT 221

Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218
Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89

Lynch v Commissioner of Police [2006] NSWADT 80

McDonald v Director General of Social Security (1984) 1FCR 353 at 357

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

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

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137

Shi v Migration Agents Registration Authority [2008] HCA 31.

Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28

Webb v Commissioner of Police, NSW Police Force [2004] NSWADT 110

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Robert McGlashan (Applicant)
Commissioner of Police (Respondent)

Representation:

Counsel:
B Donnelly (Applicant)

Solicitors:
Lawley Chambers (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2020/0075476

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. On 10 May 2013, the Applicant, Robert McGlashan was issued a NSW Category AB firearms licence, having continuously held a firearms licence for some years beforehand. On 19 August 2017, his firearms licence was suspended and on 10 October 2017, a decision was made to revoke the licence. That decision was affirmed on internal review and the Applicant sought review by this Tribunal, but withdrew his application.

2. On 19 May 2019, the Applicant applied for Category AB firearms licence and nominated recreational hunting/vermin control and primary production as the genuine reasons. A delegate of the Commissioner of Police refused the application on 11 February 2020. By an application filed on 9 March 2020, the Applicant sought review by the Tribunal of that decision. On 21 April 2020, the Tribunal made an order that an internal review of the decision made on 11 February 2020 be completed before the Application for Review by the Tribunal could progress. On 13 May 2020, an internal review officer affirmed the decision to refuse the firearms licence application. Accordingly, the Applicant now seeks review of that decision.

Relevant legislation

3. The general principles of the Firearms Act 1996 (the Act) are set out in s 3 of the Act:

3 Principles and objects of Act

1. The underlying principles of this Act are:

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

   (b)   to improve public safety:

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

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

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

2. The objects of this Act are as follows:

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

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

   (c)   to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

   (d)    to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,

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

   (f)   ...

   4. Pursuant to s 11(3)(c) of the Act a licence must not be issued unless the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant. Relevantly, s 39(1) provides that:

3. A person who possesses a firearm must take all reasonable precautions to ensure—

   (a)   its safe keeping, and

   …

   (c)   that it does not come into the possession of a person who is not authorised to possess the firearm

4. Section 11(4) of the Act provides:

5. ...a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of—

   (a)   the applicant's way of living or domestic circumstances, or

   …

   5. Further, pursuant to s 11(7), the Commissioner, and hence the Tribunal on review, has discretion to refuse a licence application if it is considered that the issue of the licence would be contrary to the public interest.

EVIDENCE

6. In addition to the s 58 documents, I had before me an affidavit dated 10 July 2020 by Elizabeth Bennett, a paralegal at the Respondent’s solicitors which annexed transcripts of interviews between the Applicant and Police, and the Applicant’s son and Police on 19 August 2017. A statement dated 11 July 2020 was also provided by Senior Constable Sean Irwin, as well as COPS information in relation to the Applicant’s Police history. The Applicant also provided character references from Rebecca Ryan, the General Manager of Blayney Shire Council and a friend for 29 years dated 1 July 2020 and Alan Poyner, the Applicant’s stock and station agent for 30 years, dated 4 July 2020.

What was the basis for the refusal?

7. There was no dispute as to the basic facts that gave rise to the refusal. On 18 August 2017, the Applicant's (then) 17 year old son was driving a vehicle which was stopped by Police ostensibly with a view to conducting a random breath test. Police immediately observed two rifles in the vehicle. According to Police, one of the rifles was located between the legs of one of the passengers in the rear of the vehicle, with the barrels pointing towards the ceiling of the vehicle. Police seized the firearms and noted that they were both loaded with a bullet in each chamber, and bullets were in the magazine of each rifle. Police also located a total of 89 rounds in the vehicle. The Applicant's son told Police that his father owned the firearms, and had given him permission to take them out. Police also located a set of keys in the vehicle and the Applicant's son confirmed that they were the keys to the Applicant's gun safe.

8. There was no dispute that the Applicant’s son told Police that he had sent the Applicant a text message informing him that he was taking the Applicant's firearms to shoot, and that the Applicant had replied "mmmmm Ok". At about 12:30 am on 19 August 2017, Police spoke with the Applicant by telephone. The Applicant confirmed that he had given his son permission to take the firearms and use them. Later that day, the Applicant's son voluntarily took part in an interview with Police and made full admissions about taking the firearms from the Applicant's safe with his permission. Also that day, the Applicant took part in an interview and told Police that he had previously been shooting with his son on the family properties on multiple occasions over some years. The Applicant also stated that his son knew where the gun safe keys were kept in the house, and that he had given him permission to take the guns out of the safe when he went shooting, despite being unlicensed. The Applicant also stated that although he always gave his son permission to take the firearms shooting without a firearms licence, he always told him to stay on the property.

9. As a result of the above, the Applicant was charged with the following offences under s 39(1)(a) and (c) of the Act:

1. not keep firearm safely - not prohibited firearm or pistol; and

2. allow unauthorised person possess firearm - not prohibited firearm or pistol.

10. On 22 September 2017, the charges were found proven at Coonabarabran Local Court but dismissed under s 10 of the Crimes (Sentencing Procedures) Act 1999. The Applicant’s son received a juvenile caution by the police officer.

Internal review

11. In affirming the decision under review, an internal review officer gave strong weight to the Applicant's good character as evidenced by his lack of any other criminal offending, and found that there was strong support for granting the licence as it related to primary production purposes. Notwithstanding this, concerns were held over the Applicant's lack of any acknowledgement or contrition for his offending, and that there was no information which demonstrated how the Applicant would in the future ensure the safe keeping of a firearm in his possession. This was of particular concern given that the Applicant's son continued to reside with the Applicant.

12. The internal reviewer also held concerns that the Applicant's normal practice was to allow his unlicensed son repeated access to his firearms, and that such a breach of the legislation could not be considered to be technical or trivial. The internal reviewer considered that this access to firearms, including to other unlicensed youths, provided significant potential for catastrophic consequences and represented a real risk to public safety.

CONSIDERATION

13. Section 63 of the Administrative Decisions Review Act 1997 provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]- [34]. Under s 28(2) of the Civil and Administrative Tribunal Act 2103 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shiv Migration Agents Registration Authority [2008] HCA 31.

14. The Respondent submitted that the decision under review is the correct and preferable decision for three reasons, each of which is addressed below.

The Applicant's failure to comply with the safe keeping of firearms

15. There was no dispute that the Applicant has a long history of holding a firearms licence – from at least 1995 – and, other than the incident in 2017, has an unblemished criminal history in relation to firearms and also generally.

16. Notwithstanding this, the Respondent submitted, the Applicant's blatant failure to comply with the firearms safe keeping requirements cannot be downplayed or ignored. The Applicant made full admissions of his wrongdoing, which it was submitted on his behalf, shows the maturity and candour of both the Applicant and his son to take responsibility for their actions. The Respondent submitted that the Applicant’s admission before the Local Court does not equate to insight. It would seem to me though, that the Applicant and his son had little option than to make admissions, given the clear position when the Applicant’s son was apprehended with the firearms.

17. The Applicant had allowed his son, a minor, access to firearms. It is clear that on the occasion giving rise to the charges, he was aware his son would be in the company of other young persons. I accept that the son, in his interview with Police, said that this was the first time ‘we’ had ever ‘done it’, namely, he and his friends had taken the firearms and gone shooting. To that extent, it was a ‘one-off’, as was submitted on the Applicant’s behalf. While it was submitted that the firearms were not discharged and were confined to the vehicle after leaving the house, this is only a matter of fortunate timing and does not detract from the boys’ obvious plan to discharge the firearms.

18. The son retrieved the gun safe keys from the office desk at the property knowing their location from previous occasions when he and his father went shooting together. The son, it was submitted, had never previously accessed the keys to the gun safe when he and his father went shooting. The Applicant, in his interview, however, told Police that he had gone shooting with his son for 5 or 6 years, and that, on those occasions, his son had got the guns out of the safe in anticipation of their shoot. Hence this was not the “first and only time the Applicant permitted his son to access the gun safe” as was submitted on the Applicant’s behalf.

19. When asked in interview about whether he gives his son permission to use the guns, the Applicant said: “Well, um generally only when we go shooting together” (my emphasis). Similarly, when asked in interview if it is normal for the son to take the Applicant’s firearms and go shooting, the Applicant replied: “On the property, yes. Most of the time, with me.” (my emphasis). Both responses clearly suggest that there were occasions when the Applicant permitted his son access to his firearms, other than when they were going shooting together. The evidence was of the Applicant’s repeated breaches of safe keeping obligations.

20. It was submitted on the Applicant’s behalf that the gun safe keys are removed from the desk when the family leaves the property. This was clearly not the case, as the Applicant was in Dubbo when his son accessed the safe. It is entirely unclear if this assertion is supposed to represent the current position, but as the Applicant’s firearms have been seized, this interpretation is unavailable as the Applicant does not have firearms to safeguard at this time. Neither does the submission, as it stands, and unsupported by evidence, satisfy me that this is the plan for future management of firearms by the Applicant. In any event, while it may secure the firearms while the family is absent, it does not address what is to occur when the family, including the Applicant’s son, is at home.

21. It was submitted that the Applicant had taught his son to handle and use firearms without incident, for a number of years on the family property and he had attended a firearm safety course. When the son asked his father if he could access his father's firearms, the Applicant had agreed, it was submitted, as his son had shown “sensibility and safety when using a firearm, although he was a minor without a permit”. While such a submission may have been available in mitigation of the criminal charges, it is irrelevant to the consideration of the matter at hand; the safe-keeping requirements are strict.

Can the Applicant exercise continuous and responsible control over firearms?

22. The Respondent submitted that the Applicant had failed to address the Commissioner's concerns with respect to how he would ensure the safe-keeping of a firearm in his possession in the future, especially as his son continues to reside with him at the same property where the firearms were stored.

23. The evidence before me was clear - the gun safe keys were readily accessible by the Applicant's son, and that he had accessed them with the Applicant's consent. There is no evidence as to how the Applicant would ensure continuous and responsible control over firearms in the future. The Applicant's son continues to reside with the Applicant.

24. I accept that there are three members of the Applicant’s household living on a large rural property and that the Applicant would use his firearms to control feral pigs, wild cats, dogs, and other vermin from killing new-born livestock and destroying pasture and crops. It was pointed out on the Applicant’s behalf that the firearms were kept on a rural property in a home with no public visitors except for neighbours on rare occasions. While I accept that it is not the case where firearms are kept in a family home in suburbia, there was no evidence of the Applicant’s professed self-imposed isolation. Furthermore, the requirements in relation to safe-keeping of firearms do not differentiate between types of locations where firearms are stored.

25. Of concern is that when interviewed by Police the Applicant thought he owned 6 firearms whereas in fact he owned 8. That suggests to me that the Applicant does not have an awareness of how many firearms he owns, and could suggest he would not be aware if some were missing. It is difficult to be confident as to the Applicant’s ability to exercise continuous and responsible control over firearms when he did not even know the precise number of firearms he had.

26. The Respondent referred to  Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149 at [31] where the Tribunal observed that given the breadth of the discretion and the overriding object of public safety, there is no basis for differentiating between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence.

27. In Tolley, the Applicant’s son had been charged with supplying commercial quantities of drugs and other offences and was in custody awaiting sentence. The Police concern was the son putting pressure on the father to access his firearms. Similarly, and more recently, in Ryan v Commissioner of Police [2021] NSWCATAD 23 (Ryan) the Applicant’s partner of 8 years had been the subject of a number of Police reports concerning drugs, break and enter, aggravated robbery, assault, consorting, stalk/intimidation, and at the time the Applicant's firearms licence was revoked, was subject to a Community Correction Order. I found that in view of the conflicting information provided by the Applicant in relation to storage of her firearms, together with her partner’s criminal history, there was reasonable cause to believe that the Applicant’s partner may take advantage of their domestic circumstances and therefore the Applicant may not personally exercise continuous and responsible control over her firearm. I accept that both these matters in relation to the criminal history of the applicants’ son/partner, are different to the matter at hand. In both Tolley and Ryan the concerns had at their core the pressure that might be applied to the applicant in relation to access to firearms. Here there was no evidence of pressure being applied to the Applicant by his son; it was a straightforward matter, in my view, of parental indulgence.

28. As was pointed out on the Applicant’s behalf, no conviction was recorded, hence the Court considered the Applicant would not re-offend, that the Applicant would ensure the safe keys were secreted, and that the Applicant is a fit and proper person to hold a firearm licence after 29 years’ experience without blemish. There was, however, no evidence before me as to what was put to the Magistrate, nor the reasons given by the Magistrate in determining the matter.

The public interest

29. The expression “public interest” is not defined in s 11(7) or elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the ‘public interest' is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].

30. I accept that the Applicant uses his firearms to control feral animals from killing livestock and destroying pasture and crops. Private interests, however, are not the only matters to be taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657 at 681. I accept that, from the references provided by the Applicant that he is a person of good character. However, consideration of public interest allows for matters going beyond an applicant’s character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]. The concept includes standards acknowledged to be for ‘the good order of society and for the well-being of its members’: Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. Accordingly, the Applicant's genuine reason for holding a firearms licence, cannot not be given priority over the public interest.

31. Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) at [28] said that in terms of public safety, “the Tribunal must be satisfied that there is virtually no risk”, while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Although Ward was also a case on the “fit and proper person” test, I observe though that the principle in Ward has been held to also apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23] and Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130]. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, but with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] – [66].

32. The principle in Ward is to the effect that the licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. Since Ward, Hennessy DP has cautioned against applying that language in a mechanistic way: see AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].

33. The principles of the Act refer to "the overriding need to ensure public safety" and the Act's intention to "improve public safety": s 3(1) of the Act.

34. In Webb v Commissioner of Police, NSW Police Force [2004] NSWADT 110 at [32], Montgomery JM, when considering the question of public safety, stated that, only real and appreciable risk needs to be taken into account and that minimal, fanciful or theoretical risk can be excluded from consideration.

35. Detailed submissions were made on the Applicant’s behalf addressing the Webb test in relation to 'risk to public safety', and are reproduced:

[The son] knew from his father's tuition over the years and completing a firearm safety course, the ultimate safety measure is to disengage the bolt and slide it backward. Operating a safety catch is not a foolproof manner of ensuring a safe firearm as catches sometimes are faulty, hence disengaging the bolt and sliding it back as Jake did is the proper procedure as the firearm cannot discharge.

The fact a projectile is inserted in the chamber and the bolt is disengaged and drawn backward poses no risk to public safety. If the bolt disengages fully the projectile is ejected as shown by the officer. The same applies to the 222 (sic) firearm only the officer did not describe the state of the bolt and made no mention of the safety catch being engaged.

36. Further, it was submitted that the Applicant’s practice over the years was to permit his son access to his firearms under his supervision when training him to shoot, adopting safety measures, firearm safety rules concluding with his son being an experienced shooter on the property to help cull vermin, but always under the Applicant's supervision. The Applicant, in the submissions filed on his behalf, was critical of Police for not obtaining the firearms experience of one of the other occupants of the car, nor was it ascertained if the safety catch was engaged when disengaging the bolt. The risk was mitigated as the bolt of the rifle "was lifted, drawn back and not engaged". From the time the firearms were accessed to the time driving to the neighbours’ property 40 minutes passed.

37. I reject the submission. Firstly, there was no evidence that the Applicant had schooled his son in firearms safety, although I accept that he had taken his son shooting from a relatively early age, and I accept that the son had successfully completed a firearm safety course. Secondly, there was no evidence in relation to whether the firearms were in safe state when the son was apprehended by Police; moreover, there was no evidence that the assertions as to safety protocols were accurate. Whether one of the other occupants of the car was experienced with firearms is irrelevant, as is the fact that only 40 minutes had elapsed since the firearms were taken from the safe.

38. More fundamentally though, the submission does not address the real issue, namely that the firearms were not stored so as to prevent access by a person who was unlicensed, and that the Applicant knew his son was unlicensed but nonetheless permitted him to access the firearms. There was a real and appreciable risk at that time, and there was simply no evidence before me to be satisfied that there is now virtually no risk.

39. In Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226 (Uzelac), which considered issues relating to the safe storage of firearms, it was held that the main issue to be decided was whether there was a risk to the safety of the public if the applicant retained the licence. The Tribunal held at [19] that the following should be considered:

1. the reason for failing to store the firearm safely;

2. the length of time the firearm was not stored safely;

3. the potential or real danger posed by failure to store the firearm safely;

4. the person's previous conduct in relation to storage of firearms and any related matter;

5. the person's understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future; and

6. the reason the person has a firearms licence, keeping in mind that firearms possession and use is a privilege that is conditional on the overriding need to ensure public safety.

7. ...

40. In Uzelac Hennessey DP added that in relation to the first three considerations, if the breaches of the Act or Regulation are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety. In this matter the breaches were not trivial or excusable; rather, it is clear that the Applicant had failed to "take all reasonable precautions to ensure" the safe keeping of firearms, and to ensure they do not come into the possession of an unauthorised person. The Applicant allowed his son access to his firearms on more than one occasion, and to access the gun safe using the keys stored in the drawer of the Applicant’s desk.

41. Further, and with respect to the Applicant’s understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future, the Respondent submitted that it is clear that the Applicant has demonstrated a careless attitude towards the stringent requirements associated with the safe keeping of firearms and their use by unlicensed persons. In Lynch v Commissioner of Police [2006] NSWADT 80, the Tribunal found that the applicant lacked an understanding of the reasoning behind the statutory storage requirements. Here, there was simply no evidence for me to be satisfied that the Applicant would safely store firearms in the future by preventing access to others.

42. In French v Commissioner of Police, New South Wales Police Force [2013] NSWADT 221 at [46], the Tribunal found that, despite the applicant's otherwise excellent and lengthy record, his knowing disregard of specific firearms legislative provisions, including those relating to safe storage, meant that there was a risk to public safety. Further, the Tribunal has held that licence holders must not only understand and comprehend the guidelines and laws relating to firearms, but must also act in accordance with them: Bottomley v Commissioner of Police, New South Wales Police [2005] NSWADT 211 at [20].

43. In Cleofe v Commissioner of Police, NSW Police Service, Alpha Intelligence Securities Pty Ltd v Commissioner of Police, NSW Police Service [2001] NSWADT 2 (Cleofe), the Tribunal accepted that one of the underlying principles of the Act is to improve public safety by promoting the safe and responsible storage and use of firearms. One of the underlying principles of that law is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage and use of firearms: see s 3(1)(b) of the Act. Ensuring that firearms are stored in a safe and secure manner decreases the likelihood that they will contribute to an accidental or deliberate injury or death: see Cleofe at [31].

44. In Foster v Commissioner of Police [2020] NSWCATAD 124 the Tribunal stated at [21]:

It has been consistently stated that the legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences.

45. The Respondent submitted that not only did the actions of the Applicant fail to demonstrate an understanding of the importance of safe storage, but the Applicant’s submissions also fail to alleviate that concern, and/or demonstrate a continued lack of insight or appreciation for the stringent requirements of safe keeping obligations. Instead, the Applicant contended that the risk to public safety "attaches" to his son. The risk to public safety was not attributable to the actions of the Applicant's son alone, but to the Applicant's conduct. This is a fundamental misunderstanding of the Applicant’s responsibility. The fact that the Applicant's son had repeated access to the Applicant's firearms, which extended to other unlicensed minors having access, only increases the risk to public safety.

46. I am satisfied that the Applicant's disregard, or lack of appreciation, of the safe storage requirements, including allowing unfettered access to firearms by others, would not accord with the public interest and amount to a real and considerable risk to public safety.

47. It is well accepted that any licence in respect of firearms or weapons, is a privilege and not a right. Responsibilities of licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 at [25].

48. The available evidence cannot result in a conclusion that there is virtually no risk to public safety. Consequently, I find that, at this time, it is not in the public interest for the Applicant to hold a category AB firearms licence.

DECISION

49. The decision under review is affirmed.

**********

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

Registrar

Decision last updated: 31 March 2021