McKenzie v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 256

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

McKenzie v Commissioner of Police, NSW Police Force [2023] NSWCATAD 256

Hearing dates:

16 June 2023

Date of orders:

06 October 2023

Decision date:

06 October 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Ransome, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE REVIEW – application for firearms licence – criminal and traffic history – whether applicant a fit and proper person – whether not in the public interest for applicant to hold a licence

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Cases Cited:

AJO v Director-General of Transport [2012] NSWADT 101

Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) ALR 657

Constantin v Commissioner of Police [2013] NSWADTAP 16

Cusumano v Commissioner of Police [2001] NSWADT 50

Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134

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

Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127

Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117

Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145

Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124

Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315

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

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

O’Brien v Commissioner of Police [2022] NSWCATAD 259

Smith v Commissioner of Police, NSW Police Force [2014] NSWCATAD 184

Sobey v Commercial and Private Agents Board (1979) 22 SASR 70

Tannous v Commissioner of Police [2011] NSWADT 116

Ward v Commissioner of Police [2000] NSWADT 28

Wiltshire v Commissioner of Police [2005] NSWADT 75

Category:

Principal judgment

Parties:

David Ronald McKenzie (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Applicant (self-represented)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/00074055

REASONS FOR DECISION

1. This is an application by David McKenzie seeking review of a decision made by the Commissioner of Police, NSW Police Force (the Commissioner) under the Firearms Act 1996 (the Firearms Act) to refuse his application for a category AB firearms licence. The decision to refuse the licence was made on 5 September 2022 and was affirmed on internal review on 8 February 2023.

2. The decision of the Commissioner was that Mr McKenzie is not a fit and proper person to hold a firearms licence and it is not in the public interest for him to hold a firearms licence. The Commissioner relies on the following matters in support of her decision to refuse Mr McKenzie’s firearms licence:

• Mr McKenzie’s criminal offences and charges;

• his poor traffic record; and

• his aggressive and intimidating behaviour.

3. In addition, the Commissioner states that Mr McKenzie has not provided a safe storage address for firearms and a licence therefore must not be issued to him until he does so.

4. Mr McKenzie disputes that he is a risk to public safety or that there are any public interest concerns with respect to him. He denies a number of the matters which have been raised by the Commissioner and states that he ceased using drugs in 2018 and is not involved in any criminal activity. Mr McKenzie states that he requires the licence primarily so he can deal humanely with injured animals on his father’s farm and on his grandfather’s property at Mudgee.

The application for review

5. The Tribunal has administrative review jurisdiction over a decision, or class of decisions, of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review: s 9(1) Administrative Decisions Review Act 1997 (ADR Act). Section 75 of the Firearms Act confers jurisdiction on the Tribunal to review certain decisions including a decision to refuse a firearms licence.

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

7. Under s 38(2) of the Civil and Administrative Tribunal Act 2013, 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. The standard of proof that applies is the civil standard, that is, on the balance of probabilities.

Evidence before the Tribunal

8. The Commissioner relied on the documents lodged pursuant s 58 of the ADR Act.

9. Mr McKenzie relied upon an email from his grandfather, Greg McKenzie, and gave oral evidence at the hearing.

The relevant law

10. Two of the underlying principles of the Firearms Act are:

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

2. to improve public safety:

1. by imposing strict controls on the possession and use of firearms, and

2. by promoting the safe and responsible storage and use of firearms.

11. Additionally, the Firearms Act’s objects include:

• to provide strict requirements that must be satisfied in relation to licensing of firearms, and the acquisition and supply of firearms, and

• to ensure that firearms are stored and conveyed in a safe and secure manner.

12. The Commissioner is given a broad power to refuse licences, including if the licensee is not a fit and proper person to hold a licence and if it is not in the public interest for the person to hold the licence. The Tribunal, in determining applications such as this matter is required to exercise its discretion in a manner that promotes the principles and object of the Firearms Act: Cusumano v Commissioner of Police, NSW Police Service [2011] NSWADT 50 at [23].

13. Section 12 of the Firearms Act provides that the Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm. A licence holder must also have in place adequate safe storage arrangements for firearms: s 39 Firearms Act.

14. It has been said that in considering matters under the Firearms Act public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218; Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134 at [46]. The interest of an applicant in obtaining or retaining a firearms licence is subordinate to that consideration: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276.

Fit and proper

15. The Commissioner submits that Mr McKenzie’s criminal and traffic records and behaviour towards others means that he is not a fit and proper person to hold a firearms licence.

16. Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, NSW Police Force [2014] NSWCATAD 184.

17. It is generally accepted that what is fit and proper needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake: AJO v Director-General of Transport [2012] NSWADT 101 at [26]; Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82].

18. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said:

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

19. They went on to say at 388:

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

20. Consideration of whether a person is fit and proper can involve an assessment of their honesty: Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 at 156-157. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said:

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

21. In the context of firearms licensing, the Tribunal is required to form a positive state of satisfaction that an applicant “is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace”: Commissioner of Police, New South Wales Police Force v EMB [2021] NSWCATAP 63 at [45].

The public interest

22. The Commissioner also submits that Mr McKenzie’s past conduct leads to a conclusion that it is not in the public interest for him to hold a firearms licence.

23. What is meant by the term “the public interest” has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court stated at 681:

“The purpose of the reference to 'public interest' is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation.”

24. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], the Appeal Panel considered that the “public interest” is an inherently broad concept providing the decision maker with the ability to have regard to a wide range of factors in exercising the discretion to refuse or revoke a firearms licence. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] the Appeal Panel said that:

“The ‘public interest’ allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.”

25. In Cusumano v Commissioner of Police [2001] NSWADT 50 at [23] Deputy President Hennessy stated:

“There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.”

26. Importantly, s 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community’s interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at [27-28] Deputy President Hennessy said that in terms of public safety:

“27…The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.

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

27. That case dealt with whether the applicant was a “fit and proper person” to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at [130] – [134].

28. The question of risk is not, however, to be approached in an absolute or mechanistic way, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [64] – [66]; Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315 at [62]-[64]. The question is whether there is in all the circumstances a real and appreciable risk to the public: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 at [74]; Kopco vCommissioner of Police, New South Wales Police Force [2018] NSWCATAD 124 at [58].

Evidence

29. Mr McKenzie is 22 years old and lives on a farm near Dubbo with his father, girlfriend and child. He works in town on a casual basis as a butcher and helps his father on the farm. He also helps his paternal grandfather on his farm at Mudgee.

30. In his application for the licence Mr McKenzie stated that he has permission from an owner of rural land to shoot on their property and required a licence for the humane destruction of vermin. He provided a letter of authority from his grandfather, Greg McKenzie, giving him permission to shoot on his property for the purposes of recreational hunting/vermin control. Mr McKenzie has now provided an email from his grandfather who states:

This is to confirm that David Ronald McKenzie requires a gun licence. He needs this licence so he can legally and swiftly and humanely put down injured animals both domestic and feral when he looks after our property in our absence.

31. At the hearing Mr McKenzie said that all his family members – father, grandfather, uncles – have firearms licences. He said that when his father goes away he helps on the farm by loading stock on to trucks. Mr McKenzie said that, if an animal is injured, he has to phone his uncle and wait for him to come to destroy the animal. The animal is in pain during this time. Having a licence would allow him to swiftly euthanise the animal. In relation to his grandfather’s farm, Mr McKenzie said his grandfather goes away for medical treatment and having a licence would make it easier for him to help on the farm when his grandfather is not there.

Criminal record

32. In January 2016 Mr McKenzie was charged with larceny and steal in dwelling house. He was a juvenile at the time and was charged along with three other young people. The charges were ultimately withdrawn. At the hearing Mr McKenzie said that, while he was with the other three boys, he was not involved in anything illegal. He said that he got into trouble because he knew them not because he was doing anything wrong.

33. Mr McKenzie has been charged twice with driving under the influence of an illicit drug. The first time was in November 2018 when he returned a positive result to cannabis. He was given a 6 month conditional release order without conviction. Mr McKenzie agrees that the incident was serious and states that he had used cannabis every now and again before this incident but then stopped. The second time was on 1 November 2022 and Mr McKenzie again returned a positive result to cannabis. He denied consuming drugs and told police it must have been something he ate. He was fined and disqualified from driving for three months. At the hearing Mr McKenzie said that a couple of days before this incident he had eaten some cookies and brownies at a party but did not know they contained cannabis. He claimed not to have noticed any effects of the drug and said he was shocked when he tested positive. He said he didn’t tell the police about the cookies and brownies at the time as they would want his life story.

34. In 2015, aged 14, Mr McKenzie was searched by police as he was suspected of possessing stolen goods. Police located a bong and cigarettes. Mr McKenzie has had other interactions with police in 2018, 2021 and 2022 in relation to suspected drug activity but no charges resulted from these interactions. On one occasion police report that Mr McKenzie attempted to evade police by driving at speed and taking corners quickly. Mr McKenzie stated at the hearing that he likes to drive around and he had simply been in some “known areas” in Dubbo. He also stated that police harassed him all the time and he does not know why.

35. In 2018 a report was made to police about Mr McKenzie and his girlfriend driving past a house and yelling abuse at a female resident. Mr McKenzie states that he has not been aggressive and said this was a dispute between his girlfriend and the girl at the house. His girlfriend was questioned but he wasn’t and the matter went no further. In 2021 Mr McKenzie came to the attention of police when he was reported to have been harassing another person by parking out the front of his house and loudly revving his engine at all hours. Mr McKenzie told police that he was in fact the victim as the other person had thrown a bottle at his car as he drove past on his way to his girlfriend’s house.

Traffic record

36. Mr McKenzie was issued with a learners permit in 2017 and obtained a provisional licence in August 2018. Shortly after obtaining his licence he was charged with driving with an illicit drug in his blood (as set out above). He incurred a speeding fine in November 2019 for exceeding the speed limit by more than 20km/h. As also set out above he was again charged with driving under the influence of an illicit drug in November 2022.

Consideration

37. The Commissioner submits that Mr Kenzie’s criminal record, traffic history and past aggressive and intimidating behaviour mean he is not a fit and proper person to hold a firearms licence. The Commissioner states that the drug driving offences are particularly serious and recent and are a firm indication that it is not in the public interest for him to hold a licence.

38. Mr McKenzie states he ceased taking drugs after he was charged with drug driving in 2018. He also claims he is harassed by police who try to make him out to be something he is not and is not aggressive.

39. Mr McKenzie is a young man who appears to have associated with friends or acquaintances in his younger years who may have been involved in petty crime. I accept that some of the incidents relied upon by the Commissioner to cast doubt on his suitability to hold a firearms licence occurred when he was a youth and the majority did not result in any charge or conviction. Without anything more, these matters would not be of great significance.

37. There are, however, matters of concern which primarily relate to the drug driving offences in 2018 and, more recently, in November 2022. I accept that Mr McKenzie was still very young when the 2018 offence was committed. The 2022 offence, however, was recent and does not support his claim to have ceased using drugs after the 2018 offence. His explanation that he had unwittingly eaten cookies and brownies containing cannabis and that the drug was still present in his blood some two days later without him feeling any effects is simply implausible and cannot be believed.

38. Mr McKenzie received a bond for the 2018 offence and was fined and disqualified from driving for the second offence. In Tannous v Commissioner of Police [2011] NSWADT 116 the Tribunal held that even if drug-related charges are dealt with relatively leniently by the court, it is clear that the Tribunal must still consider the offences seriously and carefully in the context of a firearms licence. The Tribunal noted that the question is whether viewing the applicant's conduct as a whole, the Tribunal is concerned that the applicant's breaches of the law indicate a lack of regard for the law and public safety. The Tribunal went on to state at [33] that if it was so satisfied of such a lack of regard for the law and public safety, then it would conclude that it was not in the public interest for the applicant to hold a firearms licence.

39. The fact that Mr McKenzie has not been truthful about his drug taking and has sought to blame others for his behaviour, accuse the police of harassment and generally not taken any responsibility for his actions is a significant indication that he lacks maturity and has a general disregard for the law. Mr McKenzie has not demonstrated any remorse for his past offending.

40. The most concerning aspect of Mr McKenzie’s traffic offence history is of course the drug driving offences. He has only one speeding fine but I do note that he was exceeding the speed limit by more than 20km/h (but less than 30km/h) at the time which means he was exceeding the speed limit by a significant amount.

41. The Tribunal has recognised that traffic laws and regulations are designed to ensure public safety and that repeated breaches of the rules indicate a disregard for public safety as well as the safety of the person concerned: Tannous at [32] and [37]; Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145 at [81]; O’Brien v Commissioner of Police [2022] NSWCATAD 259 at [58]-[60]. While Mr McKenzie’s traffic history is not extensive, the offences are all serious and demonstrate a disregard for public safety and his own safety as well as a disregard for a regulatory scheme aimed at ensuring public safety.

42. In regard to what the Commissioner describes as Mr McKenzie’s harassing and intimidating behaviour, the first incident in 2018 does not necessarily demonstrate that his behaviour was at fault. While the police report states that both he and his girlfriend yelled abuse at an occupant of a house they were passing, he was not spoken to by police and the remainder of the report indicates there was a dispute between Mr McKenzie’s girlfriend and the occupant of the house. The second incident in which he is accused of revving his car loudly outside someone else’s house is also inconclusive as there were accusations on both sides and police took no action. I do not consider these matters to be of great significance in my determination.

43. The evidence before me indicates that, when looking at Mr McKenzie’s conduct as a whole, he has demonstrated a disregard for the law and for a regulatory scheme which is designed to protect public safety. I am not satisfied that Mr McKenzie appreciates that his past history is a serious matter. That fact combined with the lack of evidence of any positive steps he has taken to distance himself from his offending and to ensure that he does not offend in the future, does not inspire confidence that he would comply with the strict regulatory requirements placed on a holder of a firearms licence. I therefore cannot be satisfied Mr McKenzie would not pose a risk to public safety if he had accessed firearms. It is therefore not in the public interest for Mr McKenzie to hold a firearms licence at the present time.

44. It follows that the correct and preferable decision is to affirm the decision of the Commissioner to refuse Mr McKenzie’s firearms licence. It may well be that in future, absent any further incidents and if he is able to demonstrate that he has distanced himself from his past and not taken drugs, Mr McKenzie will be able to establish that the licence should be granted.

45. The Commissioner raised issued concerning safe storage of firearms as Mr McKenzie had failed to provide a safe storage address in his application for the licence but, given my conclusions, this issue does not need to be considered. In relation to whether he has a genuine reason to possess a firearm, Mr McKenzie’s case is relatively weak but again this need not be considered here.

Order

The decision under review is affirmed.

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

Registrar

Decision last updated: 06 October 2023