Nehme v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 292

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Nehme v Commissioner of Police, NSW Police Force [2023] NSWCATAD 292

Hearing dates:

17 July 2023; 23 August 2023

Date of orders:

07 November 2023

Decision date:

07 November 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

The decision under review is affirmed

Catchwords:

Administrative Law – firearms licence refusal - fit and proper person -public interest – traffic offences

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Firearms Act 1996

Firearms Regulation 2017

Cases Cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254

Busutel v Commissioner of Police, NSW Police Force [2022] NSWCATAD 384

Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

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

Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16

Cook v Commissioner of Police [2003] NSWADT 30

Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63

Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65

Drake v Minister for Immigration and Ethnic Affairs (1979) NSW 2 ALD 60

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

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-Jaques v Commissioner of Police [2017] NSWCATAD 145

McDonald v Director General of Social Security (1984) 1 FCR 354

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

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA66; (1992) 110 ALR 449

Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184

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

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

Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110

Wiltshire v Commissioner of Police [2005] NSWADT 75

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Zeyad Nehme (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Hartmann & Associates (Applicant) (Applicant)
Makinson d'Apice Lawyers (Respondent)

File Number(s):

2022/00347978

Publication restriction:

1. The contents of confidential documents relied upon by the Respondent that were received in evidence by the Tribunal on 17 May 2023, is not to be disclosed other than to the Respondent without further order of the Tribunal.
2. Any evidence given before the Tribunal and submissions made to the Tribunal at the confidential hearings on 17 May 2023 or 23 August 2023, including all recordings, whether written, electronic or aural of that hearing is not to be disclosed other than to the Respondent without further order of the Tribunal.
3. The paragraphs of these reasons identified as [Not for publication] are not to be released to either the Applicant or to the public without further order of the Tribunal.

Reasons for Decision

Introduction

1. This is an application by Mr Zeyad Nehme (“the Applicant”) for review of a decision by the Commissioner of Police (“the Respondent”) under the Firearms Act 1996 (“the Act”). The decision was to refuse the Applicant’s application for a category AB firearms licence.

Background

2. The Applicant has previously held a firearms licence. In September 2018, the Applicant was issued with a Category ABC firearms licence for the genuine reasons of recreational hunting/vermin control and primary production. That licence was due to expire in October 2023. However, in March 2020 a decision was made to revoke that licence on public interest grounds.

3. In August 2022, the Applicant made a new application for a category AB firearms licence. The Respondent refused that application in September 2022. In October 2022, the Applicant sought internal review of the refusal decision. The Respondent failed to complete the internal review and so it was deemed to be refused. The Applicant applied to the Tribunal for external review of the deemed refusal.

4. The Respondent considers that:

1. the Applicant is not a fit and proper person to hold a firearms licence within the meaning of section 11(3)(a) of the Act; and

2. issuing a firearms licence to the Applicant would be contrary to the public interest within the meaning of section 11(7) of the Act.

The issue for determination

5. The issue in the present case is whether the correct and preferable decision is to affirm, vary or set aside the Commissioner’s decision. This requires consideration of whether the Applicant is a fit and proper person to have a firearms licence, and whether it is contrary to the public interest for him to hold a licence under the Act.

Nature of Proceedings

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

7. Section 63(1) of the ADR Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. It makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: see McDonald v Director General of Social Security (1984) 1 FCR 354 at [357].

8. The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all material first considered, together with any further relevant material so as to either confirm the original decision, vary it, or set it aside and substitute another. It was said in Drake v Minister for Immigration and Ethnic Affairs (1979) NSW 2 ALD 60 at [77] (albeit in another context) that

"[the] duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made."

9. Under section 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.

10. The standard of proof that applies in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. There is, however, no burden or onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at paragraphs [28] - [34]. The civil standard applies even if the conduct in question may be criminal: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA66; (1992) 110 ALR 449.

11. The civil standard of proof - the balance of probabilities — is set out in section 140 of the Evidence Act 1995, as follows:

1. In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

2. Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)   the nature of the cause of action or defence, and

   (b)   the nature of the subject-matter of the proceeding, and

   (c)   the gravity of the matters alleged.

   12. The Respondent contends that the application should be refused on the basis that the Applicant is not a fit and proper person to hold a firearms licence and that it would be contrary to the public interest for him to do so.

   13. Section 11 (3)(a) of the Act prescribes that a firearms licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace.

   14. Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if the Commissioner considers that issue of that licence would be contrary to the public interest.

   15. In these proceedings the Tribunal has the same powers as given to the Commissioner under the Act.

Fit and proper person

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

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

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

19. The question of a person’s fitness to hold a licence is to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake. In the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said:

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

20. 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.

21. 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.

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

"The expression “fit and proper person” is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. “Fit” (or “idoneus”) with respect to an office is said to involve three things, honesty knowledge and ability: “honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do ; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it”— Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."

Public interest

23. The expression "public interest" is not defined in the Act. It is well established that, in considering the meaning of that term, the Tribunal will have regard to the context in which it appears. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated, in regard to a decision to refuse to issue a security industry licence:

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

24. The “public interest” allows issues going beyond the character of the Applicant to be considered. These may include concerns in relation to public protection, public safety, and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.

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

26. In considering the public interest, regard must be had to the underlying principle of the Act. 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. The Tribunal must give proper, genuine, and realistic consideration to each of the relevant matters. A decision maker should not shy away from an exercise of that discretion merely on the grounds that the licensee may suffer hardship and or inconvenience: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at paragraph [22].

27. The public needs to be confident that those who are afforded the privilege of a firearms licence will comply with the legislative requirements.

28. As the Appeal Panel said in Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 at paragraphs [24] to [25]:

24. The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the “overriding need to ensure public safety”: Firearms Act s 3(1)(a). Public safety is improved by “imposing strict controls on the possession and use of firearms” and by “promoting the safe and responsible storage and use of firearms”: Firearms Act s 3(1)(b). The objects of the Act include “to establish an integrated licensing and registration scheme for all firearms;” “to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;” and “to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms”: Firearms Act, s 3(2)(b), (c) and (d).

25. In that statutory context it is uncontentious that a relevant consideration is the applicant’s previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant. ...

29. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at paragraph [28] Hennessy DP said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Although Ward was a case on the "fit and proper person" test, the formulation has been held to also apply to the public interest test: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at paragraph [23].

30. It is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be considered. Minimal, fanciful, or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110. Risk to the public includes risk to the Applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.

Material before the Tribunal

31. The Respondent relies on a bundle of material filed pursuant to section 58 of the ADR Act (“the section 58 material”). This material includes a number of records held in the Respondent’s electronic database (“COPs”). The section 58 material includes records held about interactions between the Applicant and Police and the Applicant’s traffic record. The Respondent’s solicitor, Mr Regener, also provided written and oral submissions. In addition to the open material, The Respondent also relies on confidential material. That material has been the subject of orders under section 59 of the ADR Act, and it has not been provided to the Applicant. A confidential hearing was held in the absence of the Applicant in relation to the confidential material.

32. The Applicant relies on his own evidence, and a letter from his mother, Ms Samira Nehme which explains the background to the Applicant’s ownership of the property where he now resides and operates a farming business. He also relies on a character reference from his wife, Ms Carla Nehme. She explained the history of her relationship with the Applicant and their diversified Agri Business which comprises an almond orchard, a vineyard and a wholesale Wine Business.

33. The Applicant attended the hearing, gave evidence, and was cross-examined. His evidence is that he is not involved with any criminal association or network. He requires firearms for vermin control on his properties that extend across an area of approximately 300 hectares across three estates.

34. The Applicant’s solicitor, Mr Kable, provided oral submissions.

The Respondent’s case

35. The Respondent contends that the Applicant should not be given access to firearms. It is submitted that it would be contrary to the public interest for the Applicant to hold the licence.

36. This position is based on the concerns that were expressed in earlier decisions and the view that the Applicant has not provided any fresh material to allay those concerns.

37. As noted above, the Applicant has held a firearms licence and that the licence was revoked. The notice of revocation dated 26 March 2020 stated:

I hold significant concerns regarding your associations with persons who have extensive criminal history and the risk that this place on public safety.

Further, Police have raised concerns regarding your continued access to firearms. Given that police have had the benefit of personal contact with you, significant weight must be assigned to police concerns. Therefore, in considering your continue access to firearms, I have placed substantial weight on the need for public safety and the opinion of local Police that both public safety including that of your own may be placed at risk if your access to firearms was to continue.

38. The Applicant had sought an internal review of the revocation decision. The statement of reasons for the internal review decision dated 23 June 2020 stated:

I find as a fact the following:

•    That on 10 March 2010 police executed a search warrant at the address of Farm 1628, Myall Park Road, Myall Park NSW 2681. During this search police located 1500 cannabis plants hidden under grape vines on the property. The crop had an estimated value of 3 million dollars. Police conducted a search of the property and located an amount of ammunition unsecured in a shed.

Nicholas Nader attended the property in the evening while police were continuing their search. Nader was approached by police and made full admissions to being the sole lessee, and growing the cannabis at the property. Nader stated that no other persons had anything to do with the cultivation. Nader denied ownership of the ammunition located. Police reported that the property in question had been leased by both you and your brother Danny Nehme and that the machinery used on the property was supplied by you for use by Nader. Nader was charged and later convicted with a gaol term in relation to this matter;

•    That you initially made application for a category ABC firearms licence on 10 September 2012 for the genuine reasons of recreational hunting/vermin control (category AB firearms) and primary production (category ABC firearms). You substantiated your genuine reasons by ownership of property at the addresses of 504 Farley Road, Bilbul and 1628 Blackgate Road, Myall Park. That licence was issued on 4 January 2013;

•    That you failed to attend Roads and Maritime Services to action a photographic advice before expiry (19 May 2018), to enable your subsequent NSW firearms licence to be issued. As your NSW firearms licence was deemed surrendered you were in unauthorised possession of firearms. On 7 June 2018 police seized your five firearms and you attended the Griffith Police Station and surrendered an expired licence card;

•    That on 18 July 2018 you made a fresh application for a category ABC firearms licence for the genuine reasons of recreational hunting/vermin control (category AB firearms) and primary production (category ABC firearms). On your genuine reason form for recreational hunting/vermin control you state that you were the owner of rural land at the addresses of 504 Farley Road, Bilbul and Farm 1628 (believed to be 1628 Blackgate Road, Myall Park) and that the size of the properties are 500 hectares. However, you only provided evidence of your genuine reason of Primary Production and your ownership of rural land at the address of Farm 504 Farley Road, Bilbul. That application was issued effective on 6 September 2018;

•    That on 19 September 2018 you contacted police to arrange for an inspection of your firearms safe keeping facilities in order to have your seized firearms returned. On this date police conducted an inspection and reported compliance with legislation. However, due to concerns held by police regarding your associations and the size of your property, they recorded that the inspection failed;

•    That on 30 October 2018 a notice of suspension was issued for your firearms licence. On 24 January 2020 a decision was made to lift that suspension;

•    That on 22 October 2018 and 25 March 2020 police provided information to the Firearms Registry raising concerns for public interest regarding your access to firearms. In that information police state that your primary production address of 504 Farley Road, Bilbul is within close proximity to the township of Yenda and that parts of the property boundary is less than 200 metres from residential houses. Police state that the discharge of any firearms at this property poses a serious risk to public safety. Police also provide concerns regarding your access to firearms due to your associations with persons who are well known to them;

39. The statement of reasons for the internal review decision further stated:

I also acknowledge that other than convictions for traffic offences, with the most recent recorded on 3 October 2008, you have never been charged with any other offence. However, I advise that your criminal records are not the only matters considered when determining concerns for public interest with respect to the authorisation for firearms.

…

I acknowledge your legal representative’s submissions that you are unaware of any of your associates having any criminal records and that you do not knowingly associate which such persons. Nevertheless, local police have raised concerns that persons with whom you associate are well known to them for matters involving significant criminal enterprise.

…

Additionally concerning is the information that the property (at 504 Farley Road, Bilbul) for which your genuine reasons (recreational hunting/vermin control and primary production) were established is close to bordering properties and the town centre of Yenda. I accept that your firearms licence was granted on the provision of your ownership and primary production conducted on this property. However, in your application you wrote that the land size is 500 hectares, this appears not to be the case. It also seems that no preliminary investigations were conducted relating to the veracity of your statement. Nevertheless, I advise that it is your obligation to ensure that you provide accurate information in the application process as it is an offence to provide any information which is false or misleading.

…

However, due to the close proximity of your land to houses and the town centre, significant weight has also been afforded to the fact the use of firearms at this location would place public at serious risk, due to the risk of cross-fire into neighbouring properties and into the town centre.

… I cannot ignore the fact that local police oppose your authorisation for firearms and have recently confirmed that their opinion is unchanged.

40. In the present matter, the Respondent has expressed the same concerns. The Notice of Refusal dated 5 September 2022 referred to the 2020 revocation decision and the reasons provided in relation to that revocation and stated:

“You have brought no information to light which alters my confidence in the earlier determinations regarding your licence”.

41. In these proceedings the Applicant has provided the contract of sale in relation to his property. The Respondent acknowledged that material. However, it is submitted that the Applicant provided inaccurate information when applying for his firearms licence in 2012 and 2018 in failing to provide evidence of ownership of the Myall Park property in those applications and by inaccurately representing the size of the Farley Road property.

42. The Respondent noted the view that I expressed in Cook v Commissioner of Police [2003] NSWADT 30 at paragraph [34] that the public interest requires that all licensees be aware of, and comply with, the legislative requirements. In Wiltshire v Commissioner of Police [2005] NSWADT 75 I stated at paragraph [25]:

25 Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them.

43. The Respondent disputes that the Applicant has been frank and candid with the Firearms Registry with his explicit denial of being associated with any known criminals. The Respondent noted that in 2010 Nicholas Nader was convicted of an offence relating to the cultivation of a large commercial quantity of cannabis plants at Farm 1628 Myall Park Road. Mr Nader had leased the property from the Applicant’s family. The Applicant’s mother has indicated that she was the sole owner and operator of that farm from 2004-2012. She also indicated that she had known Mr Nader from when he was a young boy.

44. [Not for publication]

45. [Not for publication]

46. [Not for publication]

The Applicant’s traffic record

47. The Respondent has provided a copy of the Applicant’s traffic record. That record is not in dispute. The Respondent noted that traffic laws and the firearms legislation are both directed towards ensuring public safety. It is submitted that it is not in the public interest for the Applicant to be afforded the privilege of a firearms licence due as his repeated breach of traffic laws and regulations indicates a disregard for a regulatory scheme designed to ensure public safety and for the law generally.

48. The Respondent relies on views expressed by Scahill SM in Keegan-Jaques v Commissioner of Police [2017] NSWCATAD 145 in which she said at paragraph [81]:

The Tribunal is satisfied, viewing the Applicant's conduct as a whole, that it is not in the public interest for the Applicant to hold a firearms licence. The Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety. ...

49. An applicant’s disregard for the traffic laws and regulations may be relevant to the criteria for a firearms licence, as held

50. In this matter, the Applicant’s traffic record reveals an extensive list of traffic related infringements. Between 1998 and 2011 the Applicant’s traffic record shows 24 entries. These are mostly concerned with exceeding speed limits by between 15 km/h and 30 km/h. However, his licence was suspended in November and in December 2006 and he was charged with the offence of driving whilst suspended. In November 2007 he was charged with the offence of driving whilst disqualified.

51. Between January 2012 and June 2022, the Applicant’s traffic record records a further 9 offences:

21 January 2012

Exceed speed limit by no more than 10 km/h

29 April 2012

Exceed speed limit > 10 km/h but < 20 km/h

24 May 2012

Exceed speed limit > 20 km/h but < 30 km/h

10 August 2012

Demerit points suspension of unrestricted (class

HR)

16 June 2015

Exceed speed limit by no more than 10 km/h

(school zone)

26 November 2018

Exceed speed limit by no more than 10 km/h

(school zone)

27 November 2019

Exceed speed limit by > 10 km/h but < 20 km/h

(school zone)

24 May 2022

Exceed speed limit by > 10 km/h but < 20 km/h

22 June 2022

Exceed speed limit by no more than 10 km/h

52. The Applicant agreed that a further offence was recorded in June 2023 but had not yet been included in the available traffic record. The Respondent notes that these are only the detected offences. The record does not include the many demerit points warning letters the applicant has received. The Respondent also notes that these offences have led to a significant number of periods of licence suspension, which evidently have not been a sufficient deterrent for the Applicant to cease his non-compliance with traffic laws.

53. The Respondent submits that the “school zone” offences are particularly concerning in circumstances where the people put at risk are children who are more likely to be struck and killed because of their size and relative fragility. Further, despite receiving multiple infringement notices, losing demerit points and at times losing his licence, the applicant has still continued to engage in the same risky and illegal behaviour that jeopardizes public safety.

54. The Respondent submits that the Applicant’s repeated breach of traffic laws and regulations demonstrates a propensity to disregard the traffic laws that are enacted to ensure public safety and it is submitted that it is not in public interest for someone with such a history to hold a firearms licence. These infringements directly relate to public safety and raise doubts regarding the applicant’s ability to abide by the rules and regulations necessary to possess a firearms licence.

55. The Respondent referred to my recent decision of Busutel v Commissioner of Police, NSW Police Force [2022] NSWCATAD 384, in which I considered a similar traffic history and I found that it was not in the public interest for the applicant to hold a firearms licence.

56. In the present matter the Respondent submitted that it would be contrary to the public interest for the Applicant to hold a firearms licence as he has a propensity to disobey traffic laws and regulations. This is a significant number of traffic offences and indicates that the Applicant has a poor attitude to a regulatory scheme that is designed to ensure public safety. In the circumstances, he cannot be trusted to comply with strict requirements imposed on licence holders under the Firearms Act to ensure public safety.

57. It is also submitted that, for several reasons, the Applicant is not a fit and proper to hold a firearms licence and that he cannot be trusted to have possession of firearms without danger to public safety or to the peace.

58. These reasons largely reflect those argued in relation to the public interest test:

1. the Applicant’s traffic history demonstrates a propensity to disregard the traffic laws that are enacted to ensure public safety;

2. an Applicant’s past conduct is an important guide in assessing likely future conduct;

3. the level of co-operation and frankness demonstrated by a licensee in dealings with the regulator is indicative of the licensee’s character.

59. It is submitted that, given the entirety of the evidence, the Tribunal cannot be satisfied that the Applicant is a fit and proper person to hold a firearms licence and it cannot be said that the applicant poses virtually no risk to public safety. As such, the correct and preferable decision is to affirm the decision to refuse the Applicant’s firearm licence application.

The Applicant’s case

60. The Applicant’s position is largely as set out in his request for an internal review of the refusal decision. In that Application, the Applicant’s solicitor, Mr Kable, wrote:

We note that Mr Nehme’s family have owned the property at 1628 Myall Park Road, Myall Park NSW for a considerable period of time, as is evident from the statement of reasons referred to above. This property is currently being operated by the applicant, and, as such, does meet the requirements which the Commissioner is concerned over the size and location of Mr Nehme’s nominated property to undertake shooting activities.

Mr Nehme still denies any associations with known criminals and given that he has no criminal record relies on his good character for the basis of obtaining a firearms licence a licence which he has held without incident for about 5 years previously.

61. In his evidence before the Tribunal the Applicant explained the relationship between his various land holdings and he conceded that he had made a mistake in the description that he provided on his licence application form. On his form he had indicated that his property size was 300 hectares. He conceded that he should have indicated that this is the total area of three properties. Essentially, while the various properties are on separate titles they are operated as a single enterprise. He is in control of 300 hectares of land.

62. The Applicant’s evidence is that he has been growing grapes for over 12 years but before that he had been in the industry for another 20 years. He spends between 40 and 50 hours per week on his properties. Before purchasing the property 1628 Blackgate Rd, Myall Park from his mother, he visited it on a weekly or fortnightly basis to overview that his mother’s employees were running it properly.

63. In regard to his alleged association with Nick Nader, he said that he had not seen Mr Nader for between 5 and 10 years. He had seen him locally, in town. He is not aware of what Mr Nader is doing now. The last he heard was that he was driving trucks.

64. In regard to the issue of his association with criminals he conceded that he knows people who have a criminal record, but he stated that he does not associate with them. He said that he knows them from growing up in the local community. He is not aware of his brother’s record.

65. Mr Kable provided submissions on behalf of the Applicant. He submitted that there was no intention to mislead the Respondent in relation to the size of his properties. The Applicant is in control of 300 hectares of land and as a primary producer and needing to control vermin he has a genuine reason for requiring a firearms licence. There is no concern in regard to shooting in close proximity to the town. He is aware of where houses are located and would not shoot near them.

66. In regard to the Applicant’s traffic record Mr Kable submitted that the record would have been known to the Respondent prior to the previous issuing of a firearms licence. In any event, the majority of the offences occurred prior to 2008 and the record has improved since then. He noted that the offence of driving whilst disqualified occurred 15 years ago.

67. In the circumstances he submitted that the traffic record would not be enough to warrant refusal of the licence application.

68. In regard to criminal associations, Mr Kable submitted that the Applicant might not be aware that some people with whom he has associated have criminal records. Even if there are associations, there is no risk to the public from those associations. In the circumstances, the Applicant can be trusted to possess firearms and therefore the licence application should be granted.

Consideration

69. This is a matter in which the Respondent has raised a number of concerns in relation to the Applicant’s traffic record and his alleged association with individuals who have criminal records.

70. The Respondent has also raised an issue of the incorrect information that the Applicant included in his firearms licence application form. The Respondent has conceded that the size of Applicant’s property is sufficient to establish that he has a genuine reason for a firearms licence. On the evidence before me I am not satisfied that the Applicant had intended to mislead the Respondent in providing incorrect information. I accept his explanation and do not consider that this issue should be given weight in regard to the question of whether the Applicant is a fit and proper person to hold a firearms licence.

71. [Not for publication]

72. [Not for publication]

73. [Not for publication]

74. I accept that the Applicant’s lack of criminal convictions is significant. In my view, the most troubling aspect of this matter is the Applicant’s traffic record. I agree with the Respondent that this record is terrible, and the most recent offence suggests that the improvement in the record was only temporary.

75. There are numerous decisions of this Tribunal that have followed the decision in Keegan-Jaques v Commissioner of Police. Most recently Ransome SM considered the issue in McKenzie v Commissioner of Police, NSW Police Force [2023] NSWCATAD 256. She stated at paragraph 44:

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.

76. In this matter, the Applicant’s traffic history is extensive. There can be no doubt that this history is significant. As I noted in Busutel v Commissioner of Police, in the circumstances where the Applicant’s history is significant, more would be required than the mere passage of time to show that the Applicant has changed his ways and undergone reformation of character.

77. The Applicant’s history in the present matter, as was the case in Busutel v Commissioner of Police, suggests that conformity with regulations intended to promote public safety and considering the public interest, such as traffic laws have not been a priority for him. This is inconsistent with the expectations of a firearms licensee as set out in the objects and provisions of the Act. It has been widely accepted that while it is impossible to say with certainty how any individual will behave in the future, prior conduct can provide some guidance.

78. In the circumstances it is my view that it is too early for me to be satisfied that there is virtually no risk to the public if the licence is granted. It is not in the public interest for the Applicant to have a firearms licence at this time.

Decision

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: 07 November 2023