O'Rourke v Commissioner of Police, New South Wales Police Force

[2023] NSWCATAD 297

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

O’Rourke v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 297

Hearing dates:

27 October 2023

Date of orders:

9 November 2023

Decision date:

09 November 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Emeritus Prof G D Walker, Senior Member

Decision:

Decision under review affirmed.

Catchwords:

LICENSING – firearms licensing – licence revocation – fit and proper person – public interest – applicant trained for jihad in Australia and Al Qaeda camp in Afghanistan – Soviet-era history – “Jihad Jack” -- served at front in civil war – falsified visa on passport – antiterrorism charges – effluxion of time – media interviews – public confidence in licensing system

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth)

Criminal Code (Cth)

Criminal Code Act 1995 (Cth)

Firearms Act 1996 (NSW)

Firearms Regulation 2017 (NSW)

Passports Act 1938 (Cth).

Cases Cited:

Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 170 CLR 321

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

Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240

Briginshaw v Briginshaw (1938) 60 CLR 316

Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42

Busutel v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 384

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

Cusumano v Commissioner of Police, New South Wales Police Force [2001] NSWADT 50

Director-General, Transport New South Wales

v AIC (GD) [2011] NSWADTAP 65

Director of Public Prosecutions (Cth) v Thomas [2006] VSC 120

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

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

Jabbour v Thomas [2006] FMCA 1286

Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31

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

Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368;

Kogias v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 297

Mc Donald v Director-General of Social Security [1984] FCA 354, (1988) 1 FCR 354

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

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

Re SRHHH and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1020

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

R v Thomas [2008] VSC 260

Sterjovski v Director-General, Department of Transport [2002] NSWADT 10

Thomas v Mowbray [2007] HCA 33, (2007) 233 CLR 307

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

Category:

Principal judgment

Parties:

Jack O’Rourke (Applicant)

Commissioner of Police, New South Wales Police Force (Respondent)

Representation:

Counsel:
K Curry (Respondent)

Solicitors:
Mainstone Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2023/00157581

reasons for decision

1. The applicant Mr Jack O’Rourke applied to this tribunal on 17 May 2023 for review of a decision by the respondent Commissioner to revoke his category AB firearms licence. The decision was made on 20 February 2023 and was affirmed following an internal review on 21 April 2023 on fitness and propriety and public interest grounds.

2. The applicant had reportedly used over 11 aliases, including Joseph Terrence Thomas, Terrence Jack Thomas, Dildar Abdul Rehmar, Jack O’Rourke Hammond, Abu Khair Islandi and Jack Hammond. The essential basis of the decision (exhibit R1, pp 62–66) was the applicant’s involvement in terrorism, which involved him travelling from Australia to Afghanistan in March 2001 to train for jihad and fight for the Taliban. He had been referred to in the public domain and gained a reputation under the sobriquet “Jihad Jack” and was one of the first Australians to be charged with anti-terrorism offences in Australia.

3. He participated in interviews with Australian media in which of his own volition he publicly stated that he had been selected to be Osama bin Laden’s man in Australia (id., 376). He had also been convicted of possessing an Australian passport that had been falsified. He denied participating in any terrorist activities and submitted that he is now completely different man from the person who travelled to Afghanistan in the early 2000s.

4. The broad chronology and background to the matter are not in significant dispute. They note that he left Australia for Pakistan with his then wife Maryati [name] and his young child on 23 March 2001 and returned home on 6 June 2003. Before returning to Australia he was held and interrogated in a Pakistan military prison for a number of months.

5. On his return to Australia he was charged on four counts:

1. between November 2002 and January 2003 at Karachi and elsewhere he intentionally received funds from a terrorist organization, namely Al Qaeda, or another terrorist organization associated with Khaled bin Attash or Osama bin Laden, or both, knowing the organization to be a terrorist organization;

2. between 5 July 2002 and 4 January 2003 at Karachi and elsewhere he intentionally provided resources (himself) to that terrorist organization that would help it to engage in preparing or planning a terrorist act overseas;

3. between 1 November 2002 and 4 January 2003 at Karachi and elsewhere he intentionally provided resources (himself) to that organization that would help it to engage in preparing or planning a terrorist act in Australia;

4. on 4 January 2003 at Karachi he had in his possession a falsified Australian passport.

6. A jury in the Supreme Court of Victoria on 26 February 2006 found him guilty and convicted him on counts 1 and 4 and not guilty on counts 2 and 3 (Director of Public Prosecutions (Cth.) v Thomas [2006] VSC 243). It was reported that the admission of self-inculpatory statements made in the course of an interview with Australian Federal Police (AFP) while he was held in Pakistan was crucial to his conviction.

7. He told his story to a reporter, Sally Neighbour, on an Australian Broadcasting Corporation Four Corners program aired on 27 February 2006. On 31 March 2006 he was sentenced to a total effective sentence of five years’ imprisonment. He appealed to the Victorian Court of Appeal against conviction on 18 August 2006. The court found that the evidence of his confession made during his interrogation in Pakistan was inadmissible because it had not been given voluntarily and his convictions were quashed. After further hearings ordered on 20 December 2006, he was ordered to face retrial rather than be acquitted (R v Thomas [2006] VSCA 165).

8. He was then found not guilty of the terrorism charge but guilty of the passport offence and was sentenced to 9 months’ imprisonment, being released on a Commonwealth recognizance order.

9. Following the quashing of his convictions, on 28 August 2006 he was issued with a control order under the Criminal Code (Cth.) on a number of grounds, including the view that training had provided him with the capability to execute or assist with the execution, directly or indirectly, of any terrorist acts, that he might be susceptible to the views and beliefs of persons who would nurture him during his reintegration into the community, and how his links with extremists such as Abu Bakir Bashir, some of which were through his wife, might expose and exploit his vulnerabilities. He unsuccessfully appealed against the control order to the High Court and the order was confirmed on 2 August 2007 (Thomas v Mowbray [2007] HCA 33, (2007) 233 CLR 307).

10. On 30 October 2015, he was made subject to an interim family violence order in Victoria, which was later withdrawn upon an undertaking being given by him. The person in need of protection was recorded as being his ex-wife Maryati. Police ascertained that he had been in a de facto relationship (his description was that it had been a religious marriage under Islamic law) for approximately 18 years and they had 5 children together. They separated in October 2015, and thereafter he renounced his Moslem faith. He reportedly told police that unknown persons from the faith had made contact with him, stating that “You know what happens when you leave the faith”. He took the view that the consequence would be decapitation.

11. On 4 September 2017, police spoke with the applicant and Ms Aloysia Brooks at her residence in relation to a person who they both had reported had verbally abused them. The individual was said to be a friend of Ms Brooks’s ex-husband David Hicks (a former inmate at Guantánamo Bay) and that the individual in question had taken issue with them both.

12. Reportedly on 5 October 2019 he became engaged in a dispute with his employer during which he asserted that the employer had threatened to harm him physically. On 22 April 2020 he became engaged in a dispute with a colleague’s husband and was named as the victim in a provisional apprehended violence order on 26 April 2020, which became a full order on 15 July 2020, expiring on 25 April 2022.

13. He submitted an application for a category AB firearms licence on 20 November 2020 under the name Jack O’Rourke Hammond for the stated reason of recreational hunting/vermin control, with permission to shoot at a property at Glen Davis from his wife Marree-Louise [name]. In answer to the question on the application “Have you previously been known by another name?” he answered “yes”, but provided only the name “Jack Thomas”. His licence was issued on 11 January 2022, and on the same day he emailed the Firearms Registry requesting that his licence be reissued in his “new name”, providing identification in the name “Jack O’Rourke”.

14. On 26 January 2022 his licence was suspended. He was interviewed by police on 28 November 2022 in relation to Maree-Louise, and informed police that he knew she was a revoked licence holder, but said that the circumstances were not as recorded and that she was beaten and abused. When asked, “What’s the possibility Maree can access your firearms?”, he replied “Nil, it’s illegal”. Asked about his time overseas, he explained that he had married an individual in 1998 who had “radical beliefs”, that he had been “extremely naïve” to take his first-born child to Afghanistan. When asked by police “where do you stand now in relation to those beliefs?”, he said he had left the religion, he had been threatened by his son and ex-wife, as well as numerous other persons, and that was why he had changed his name and left the state [of Victoria]. He had adopted the name O’Rourke, his maternal grandmother’s name, which was linked back to his Irish ancestry (exhibit R1, pp 38, 41, 65)

15. On 20 February 2023, his firearms licence was revoked and his permit to acquire application refused because of concerns relating to Maree-Louise [name]. He requested an internal review of the revocation decision, and the internal review affirmed it on 21 April 2023. He applied to this tribunal for review on 17 May 2023 and the matter came on for hearing on 27 October 2023.

Applicable legislation

16. The power to revoke a licence is provided for in s 24 of the Firearms Act. Section 24(2)(c) states that a licence may be revoked if the Commissioner (or on review this tribunal) is of the opinion that the licensee is no longer a fit and proper person to hold a licence.

17. Section 24(2)(d) provides that a licence may be revoked for any other reason prescribed by the regulations. Clause 20 of the Regulation states that a licence may be revoked if the Commissioner (or on review this tribunal) is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

18. The issues in this application are therefore whether the applicant is a fit and proper person to hold a firearms licence and whether it would be contrary to the public interest for him to continue to do so.

Respondent’s evidence

19. The respondent did not call oral evidence but instead relied on the documentary material, including the s 58 documents (exhibit R1), the contents of which are drawn upon below, a number of video and audio recordings that were played at the hearing and on cross-examination of the applicant. At this stage, however, it is convenient to outline two affidavits sworn by Bridget Dawson, one on 15 September 2023 (exhibit R2, with exhibit BD-1) and the other on 23 October 2023 (exhibit R3, with annexures). They identify the sources of some of the documents relied on and provide background to the case as a whole.

20. Ms Dawson is a solicitor employed in the office of the New South Wales Crown Solicitor and has carriage of this matter on behalf of the respondent. The affidavit dated 15 September 2023 provides evidence about the circumstances in which the applicant was granted a licence.

21. On 20 November 2020, he submitted an application (exhibit R1, pp 17 – 22) which gave his name as “Jack O’Rourke Hammond”. In response to the question whether he had been known by other names, he responded with the name “Jack Thomas”. The online application template used by the Service New South Wales website permits the insertion by an applicant of only one previous name.

22. On 11 January 2022 the respondent decided to grant the applicant a category AB firearms licence in the name of “Jack O’Rourke Hammond”. On the same day, the applicant emailed the Firearms Registry requesting that his firearms licence be reissued under his new name, “Jack O’Rourke” and attaching a number of documents, including a copy of his birth certificate that indicated that before 26 June 2003 he was named “Jack Terrence Thomas” and between 26 June 2003 and 17 January 2017, he was named “Joseph Terrence Thomas”.

23. On 25 January 2022, New South Wales police Senior Sergeant John Manuel, of Counter-Terrorism and Special Tactics, emailed the Firearms Registry informing them that the applicant had previously been charged with terrorism -related offences under the name “Joseph Thomas” (id., 30 – 31) and seeking revocation of the applicant’s firearms licence on public interest grounds. The next day the respondent suspended his firearms licence and on 20 February 2023 the Commissioner revoked it on public interest grounds (id., 49 – 50).

24. Ms Dawson had been instructed that on 11 January 2022, when the Commissioner decided to grant the licence, the Commissioner had not been aware that the applicant had been previously named Joseph Thomas and did not identify any concerning criminal history. Had the Commissioner known at the time of the applicant’s previous name and criminal history, the grant of a licence would have been refused, and on becoming aware of it the Commissioner revoked the applicant’s licence.

25. The affidavit then describes how the respondent’s legal representatives obtained a copy of a 2006 ABC Four Corners episode named “The Convert”, and copies of the Commonwealth Director of Public Prosecutions brief of evidence from the applicant’s two criminal trials in 2006 and 2008, including a copy of the applicant’s interview with the Australian Federal Police in Pakistan in 2003. Transcripts of the criminal proceedings were also obtained, as well as a number of related documents.

26. Also explained are the steps taken to obtain copies of United Nations Security Council resolutions, statements made by the UNSC President, copies of judgments relating to the applicant and recordings of ABC interviews with John Faine on 29 October 2013 and with ABC’s PM program on 30 August 2006.

27. Ms Dawson’s affidavit dated 23 October 2023 (exhibit R3) was intended to correct an error made in the previous affidavit and provide further relevant evidence. The error related to the date of an email sent on 11 January 2023, which had been shown as being on 11 January 2022.

28. The affidavit also clarified that the applicant’s Victorian junior firearms licence was issued on 23 October 1989, expiring on 22 October 1990. His AB licence was issued on 26 August 1991 and expired on 25 August 1997. It also attached a copy of the statement of facts relating to the interim control order. Ms Dawson was not required for cross-examination.

Applicant’s evidence

29. In oral evidence at the hearing the applicant adopted each of three statements, dated 21 August 2023 (exhibit A1), 9 October 2023 (exhibit A2) and 19 October 2023 (exhibit A3) respectively. As commonly happens in cases of this nature, the statements contain a certain amount of material by way of submission rather than representation of fact.

Statement 21 August 2023

30. In the first of those statements he explained that he joined the Moslem faith in 1997 and travelled to Afghanistan around February or March 2001, believing at the time that he could help to end decades of civil war. The country was at the time about 96 percent at peace and he believed he could help to make it 100 percent. He went there to fight for the legitimate government of the time, the Islamic Emirate of Afghanistan, also known as the Taliban, against the Northern Alliance.

31. While over there he established a home for his family, did basic military training and fought on the frontline at Bagram. He then decided it was certainly was not the Islamic utopia the extremists had been describing, and accordingly packed up his family’s belongings just days before the 9/11 terrorist attacks on the United States, to leave for Australia by way of Indonesia, to visit his parents-in-law.

32. Following the terrorist attacks in the United States, Afghanistan and Pakistan went into border lockdown. He managed to escort his wife and child back to the Pakistani border, but it was too dangerous for him to cross and he remained in a border town in hiding with other non-Afghans. Months later he was able to cross into Pakistan around mid-2002 and stayed in a Pakistan residence home sympathetic to immigrants fleeing from Afghanistan for fear of arbitrary torture and mistreatment. His passport was altered to make it look as though he and his family had been in Pakistan the whole time and travel arrangements were made for him, as they were for all those fleeing. He was provided with a small amount of money and airline tickets home but was arrested immediately on presenting his passport at Karachi airport, as it was flagged, and he was immediately handed over to CIA and Pakistani ISI for interrogation.

33. During that time he was continually tortured by ISI in the presence of CIA. To escape torture he admitted to being a member of Al Qaeda, though he had never been a member. He was deported on a temporary passport back to Australia, returning some time in late 2003 or 2004. The control order to which he was made subject was ultimately discontinued by the Supreme Court of Victoria, following the quashing of all terrorist and passport related charges against him.

34. He had used other names, such as “Jihad” and other Islamic names or nicknames. He had no associations with any person from his past and had not done so since 2014. He is no longer of the Moslem faith and deeply regrets the previous associations he had when he travelled to Afghanistan. He renounced his Moslem faith in 2014.

35. As regards the apprehended violence order, he was forced into court action against his former partner as she contacted him in 2015 in relation to sending their children overseas to Islamic boarding schools in Malaysia or Yemen. He immediately sought to prevent her from doing such a thing to his children. He obtained an AFP flight watchlist order for his children so his ex-partner could not take or send them overseas. She threatened to have him beheaded for having a girlfriend and had people from the Islamic community threaten his life for apostasy.

30. His ex-partner encouraged his son to ask him if he knew that the consequences of apostasy were death. He applied to the Frankston Circuit Court for an AVO against his ex-partner. He had the text messages of the beheading threat. The matter was resolved by the parties making a mutual agreement.

31. Regarding the AVO in New South Wales, he became friendly with a work colleague who told him that her partner was controlling and abusive. The partner found out about the connexion and threatened to kill him. He contacted police and they took out an AVO against the partner.

32. He is not now the same man as he was in the early 2000s and has “come full circle”. He now considers himself simply “Jack”, a proud fifth-generation Australian with Aboriginal and Irish ancestry. He is a Christian and keeps his religion and political views to himself. He is a happily married, hard-working man in all respects. He recognizes the mistakes he made in the past, which occurred over 20 years ago. He provided a significant amount of information relevant to his background in his initial licence application, which was granted.

33. He said that all he seeks is a fresh start and to get on with his life. He is not a threat to anyone and simply wants a firearms licence so he can do some recreational hunting.

Supplementary statement 9 October 2023

40. In his supplementary statement dated 9 October 2023 (exhibit A2), he stated that on returning home in approximately 2003 from being tortured in Pakistan for five months he began work in the Footscray fruit and vegetable markets. Not long afterwards, he was contacted by ASIO agent Robert Rickder, whereupon he continued to assist Australian authorities in matters of national security.

41. He continued to work and saved a deposit for their first home. In the week that was supposed to be a settlement on the house at [name] Street, Werribee, Victoria, the AFP informed the media and arrested him, 17 months after he had returned home. He was charged with security-related and passport offences. He was removed from the title of their home by the bank and they were very close to losing their deposit. Maryati [name] was the only one on the title. She was not working full-time, and their loan was changed from a 95 percent loan down to a 75 percent loan. With his parents’ and friends’ help, they came up with the shortfall on the deposit. Maryati had a friend of her son (Jacob [name]) come on the title of the property at Werribee in trust for him, and signing a statutory declaration that he had no financial interest in the property.

42. He then started working at a finger food factory in Hoppers Crossing. He was looking to buy the business, but after doing the numbers decided against it. He then obtained his HC and MC drivers’ licence and started linehaul interstate truck driving all over the East Coast and South Australia. He then worked in shipping containers at Sea Road Logistics in Port Melbourne, also doing container security work, delivering to the Spirit of Tasmania and at their wharf where Sea Road had two ship stations. After that, he tried to get work in the Western Australia Port Hedland mines, so he drove quad road trains out west through the Pilbara to Woody Woody Mine, carting 170 and half tonne loads of manganese through to Port Hedland port authority.

43. After nine months he was unable to get work in the mines driving road trains, so he came back to Victoria. He was exhausted in the loveless relationship he had with Maryati and the cult of Islam, so he left the relationship in September 2014. He moved in with his parents and the children and went back to working night shifts at Sea Road Logistics, taking the children to school in the morning, sleeping and then picking them up and dropping them home to his mother before he started his shift at night. Mayati was at that time admitted to the psychiatric ward at Werribee Hospital and diagnosed with cluster B borderline personality disorder, narcissism and as histrionic.

44. Maryati informed him via an email that she wanted to send their children overseas to Yemen or Malaysia to learn Arabic. He was vehemently opposed to the idea, considering the family history. She insisted and had people in the Islamic community threaten his life for apostasy. He sought an AFP flight watchlist order to prevent her from sending their children overseas again. After he obtained the order, his family sided with Maryati, much to his dismay. She cried and his parents and brother all consoled her. If he had not sought the flight watch listing all his children would once again have been sent overseas. He had made that mistake once; he was not going to make it again. He also received threats of violence from her and his son, so he sought a DVO against her. It was dismissed, and he could only manage to get mutual undertakings. After the threats he received from her and the community, and losing so badly in the family courts, he left Victoria for New South Wales in December 2015.

45. He obtained work through some Christian friends, but his self-confidence was still at an all-time low and he was living in his car, sleeping rough and living in crisis accommodation. He eventually got a Blacktown Council site van as it had a toolshed for his tools and he was living in it on the side of the road. He took a job with some people who became aware of his past, so he got another job, but was at that time living in the yard that they rented. The manager of the yard was made aware of his plans to leave and threatened his life for doing so. He contacted police, as it was a public holiday and he needed help towing his van out of the yard.

46. It wasn’t that easy as the van was quite dilapidated and he could not tow it with his vehicle at the time. He managed to get out of there and back to Leichhardt for a short period until he moved out west to another friend’s garage, which he renovated and did not have to use a bucket to urinate in. He met Marree and moved in with her and after several months they married. He continued to work through an agency, and got full-time work and got himself back on track enough to apply for his firearms licence, as it had been so long. All he wanted was a fresh start and to get on with his life as he had done for decades previously.

47. He gave his original name on his firearms application, which was more than enough considering the ridiculous amount of media coverage Ihe had received. He has an ardent desire, as hunting is an innate part of who he actually is as a person. His licence was not suspended after 15 days. It was valid on the Firearms Registry for over a year without incident, before it was revoked. Before that he held a firearms licence before and after converting to Islam, again without any incidents.

48. He has never instigated violence against anyone and has most certainly been the victim of multiple acts of aggression. He does not deserve to be punished and persecuted for all time. He is disgusted by, and rails against, attacks on innocent people. For the love of all that’s good in this world, he went overseas because just the words “collateral damage” made his blood boil. He is most certainly not a terrorist or anything of the sort. It’s disgraceful and completely ironic that he has been labelled these things, as he is diametrically opposed to those beliefs and ideologies.

49. When his rendition began overseas, and he was held in indefinite detention, he had nothing but hope that eventually the truth would become apparent to authorities, and they would see that he poses no risk whatsoever to anyone’s safety in any way, shape or form. He seeks only legitimacy and some well-deserved restorative justice. He does not simply want to recover his licence for a bit of recreational hunting. That is not the case at all. Hunting and fishing, camping and bushwalking, four-wheel driving and enjoying the bush is in his DNA. The land and living off it are inseparable from who he is as a human being.

50. It is absolutely unjust to give him a life sentence and deny him his life back for association with people he never held the same views with and of whom none were viewed in that light at the time that they are now seen. Hindsight is 20/20. He is not and has never been a terrorist. All terror-related charges against him were ultimately dismissed by the court.

51. As regards his passport (which by the way they returned to him, he thinks in 2017) in early 2001 he had gone to the Taliban embassy in Islamabad, Pakistan. They were the government at the time, so he did not wish simply to enter the country without a proper visa. When the Taliban was toppled, he believed he now had in his passport not merely a defunct government visa but effectively a one-way ticket to Guantánamo Bay. He was desperate to see his family after being in hiding for almost two years. He had the Taliban visa removed and had it replaced with a Pakistani one. Guilty as charged, and he has paid dearly. His family name was dragged through the media for years.

52. He wants nothing to do with any so-called Islamic community, or anyone for that matter who believes in hurting innocent people. He has never believed in such things, even as a Moslem. Even the words “collateral damage” used to make his blood boil. That was why he went to fight in Afghanistan in the first place, as he believed back then he could help end the decades of civil war. What an imbecile he was. He did not study the centuries of conflict there. He was naïve and a fool to think by joining a war he could stop one.

53. He thinks somehow that he used to have an invisible tattoo on his forehead and back, one saying “sucker” and the other “kick me”. Now he is simply not that guy anymore. He has come full circle. He is Jack, a proud fifth-generation Australian with Aboriginal and Irish ancestry, a Christian who keeps his religion and political views to himself. A hard-working man in all respects worthy of a fair go.

54. He had previously held a firearms licence in Victoria for over 20 years. His father was a firearms safety officer for over 10 years at the Williamstown police station, where he grew up. The dangers and precautions necessary and the great responsibility of having a firearms licence, loading and reloading cartridges and shells, storage of guns and ammunition, had been forever planted in him by his father, who instilled in him the love and passion for game and game hunting and conservation. Safety and security of their firearms and ammunition have always and will always be at the heart of his love for target practice and game hunting.

55. He has again passed his waterfowl identification test and obtained his R licence endorsement. He seeks only the legitimate use of his firearms and to carry on his family’s tradition of safe and responsible hunting, in the best country in the world. Since returning home he has done nothing but make amends for getting caught up in global events way over his head. He constantly cares for the community and public interests, as those are made up of individuals just like him who have also made mistakes in the past but should not be condemned to be punished for them for life when they are sincerely remorseful and have hurt nobody in their misguidance. He constantly cares for the community and public interest around him when he drives heavy vehicles on the roads. As is the privilege of a driver’s license, so to our firearms licences.

56. He and Marree plan on becoming primary producers as soon as possible, so his application for a firearms licence is far from being just for recreational purposes. He is now completely different person from the one who left Australia over 20 years ago with naïve ideas to help in another country, and he can be relied upon to fulfil all his responsibilities, should he be granted the privilege again of holding a firearms licence.

Further supplementary statement, 19 October 2023

57. The applicant’s further supplementary statement dated 19 October 2023 (exhibit A3) is essentially a commentary on a document annexed to Bridget Dawson’s affidavit of 23 October 2023 (exhibit R3) which is headed “Attachment C -- Statement of facts relating to why the order should be made” in relation to the interim control order. It is not easy to follow and some inconsequential points have been omitted. The page references are to exhibit R3.

58. Page 302, 7b: The interview was under duress. Never did he ask to work for those people, nor did that person, who he cannot remember, ever provide him with tickets to Male or the Maldives. He never described the gesture as a test -- that was a suggestion made by Khalid bin Attash. He wanted to go home. The point is false.

59. 7i: he thought to himself if there was anything he could do at all to stop the killing. He then came to the realization that all he could do was to get home and get on with his life and have nothing more to do with these people.

60. 7l: he overheard that conversation and that was all it was. There were no plans or preparations ever made to his knowledge for extracting prisoners from Guantánamo Bay.

61. Page 304, 7.o: that was not true, and out of context. It was the first encounter with bin Attash and he was disgusted and mortified with any such suggestions, but had to stick it out in order to be free to get home to his wife and children.

62. 7.p: The phone number people received was to advise of their safety upon arriving home, nothing more. Merely a welfare check for all. All other points in 7.p were suggestions made by bin Attash that he reiterated to authorities.

63. 7.q: he did not request the second alteration to his passport. All that he asked for was that the Taliban visa be removed and replaced with a Pakistani one. He had never heard of Al Qaeda until well after 9/11 on BBC News.

64. 7.s: he was sheltered in Pakistani family homes who were sympathetic to the Taliban. The guesthouses were in Afghanistan and had all been destroyed, to his knowledge.

65. 7.t: people received different amounts of money for travel purposes. He was no different.

66. 8.c: all he wanted was an end to the civil war and he did not believe he ever made statements pertaining to killing individuals, as it was not in his character. Keeping in mind he was under extreme torture and duress overseas.

67. Page 306, 10.2.c: all senior leaders at camp Al-Farooq were killed, according to his knowledge, by US airstrikes and whilst at the camp no-one took him into their confidence whatsoever.

68. 10.2.f: no plans or preparations were ever made to such ends.

69. 10.2.g: the attempt at grooming Mr Thomas would never have been successful, no matter what they offered, as he was never interested.

70. 10.4.l: Jack Roche had nothing to do with him. Just because he met him once did not mean he believed anything that he believes in. What someone else believes about a person has no bearing whatsoever on their commitment or capabilities.

71. Page 307, 10.4.1.c: he was not going to the frontline untrained. They call it whatever they like, it was war. He did not intend to ever travel outside Afghanistan to fight. He believes there is some truth in 10.4.e.

72. 10.5: he never offered assistance, and had no choice in the matter. He was trapped. They came to him, he did not seek them out. 10.8 is completely false.

73. 10.9: not true at all. Suggestions made to him about the Maldives, not Australia. Nor was he willing to offer intelligence or any other form of assistance in any way, shape or form.

74. Page 308, 10.10: he had never believed in such things.

75. 10.12: he rejected all associations and ideologies.

76. 10.13: “That’s news to me”.

77. 14: an appeal against that conviction was upheld, as the record of interview was inadmissible as the evidence had been obtained under threat of torture.

78. 309.17: it was a fabrication and he had never said anything of that kind.

79. 310.21: like 19, that showed the age of the document as the Chandler Street home was sold in approximately 2009.

80. 22.a: that professor had never met with him in person. If so adaptive and deceptive, why would he be taking that matter to the administrative tribunal for judgment and drawing attention to himself if he was going to conduct anything illegal or untoward. He would not be going to all this trouble.

81. 22.b: he was tortured in offshore indefinite detention but had moved on, and so should the AFP.

82. 22.c: he reiterated that he had moved on once back in Australia in 2003 and was exonerated of all terrorist-related charges in approximately 2008. It was now high time Australian authorities realized the value of his travelling overseas in bringing to justice many senior Al Qaeda leaders due to the information he had provided to authorities at the time.

Applicant’s oral evidence

83. Cross-examined by Ms Curry at the hearing, the applicant said he had converted to Islam in 1997 aged about 25. He had been introduced to it by a high school friend, Salim, as there were tensions at school with Lebanese pupils. He had come to Islam by way of occult and the Bible, having concluded that all religion was one – the Old Testament, then the New Testament, then the Koran. He read translations of the Koran and lived in a mosque for a year in Newport, Victoria, which was Lebanese and quite laid-back and not extremist like the Michael Street mosque. The only teachings consisted of reciting the Koran, and he learned Arabic.

84. They had never discussed jihad as terrorism, it was more historic, dealing with such matters as the Soviet war (I outlined the history of that period in SRHHH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1020, [17]–[48]). Fighting for your religion was part of it. He had given 100 percent to it and was delving into it as a student of life. He trusted people and did not question them – you have to be really careful about who you trust. All had changed after 9/11. The world was different. Maryati’s involvement was religious only. He had met her overseas. She had friends in Melbourne and he had travelled to South Africa where he met her and they were married after only a few hours. He did not tell his family.

85. Maryati came across as very educated and influenced him with her Wahhabi radicalism and jihad ideology. He wanted to do jihad overseas to bring peace to Afghanistan. He had obtained information from a Chechen website. Maryati took a historic slant, with the Soviet era and proxy wars. He had seen videos of Osama bin Laden, but he had not seemed very important at the time and was not much in the media. He himself had been asking the wrong questions.

86. Maryati was influential and described Afghanistan as the “ideal” society, but it was not so. He had known he was entering a war zone, although the country was 96 percent at peace. He did not recall seeing any online advertisements about training. He had wanted to fight and went to the front. but had decided to leave Afghanistan before 9/11. He was going to bring about peace, but the reality on the ground was that Afghanistan was no utopia. He had not read any United Nations reports about the conflict and had thought he knew better. He got caught up with the extremist views of others.

87. He had thought it would be possible to make peace with Ahmad Shah Massoud, the leader of the Northern Alliance (Ahmad Shah Massoud), which was rebelling against the Taliban government. He knew nothing about the United Nations until he was in the country, after 9/11. He agreed that he would have had to participate in violence but had thought that all would be idyllic once peace was restored. He did not know that taking part in a foreign war was a crime under the Crimes (Foreign Incursions and Recruitment) Act1978, and did not consider the legality of what he was doing, thinking only of God’s law. He had displayed poor judgment, and his actions had been “well beyond reckless”. He had lied to his parents about his involvement, but he did not tell them because they would have been worried as he was in a war zone.

88. He had undergone some jihad training with others in Australia after he married Maryati in 1998. He went overseas in about March 2001, before 9/11, and had received jihad training early in 2001. It was not done in a camp, they were practising with paintballs and only having overnight camps. There were no weapons or live rounds on the premises, contrarily to what the ABC had said. The weapons were overseas. The ABC interview had been heavily edited, as he had been talking to the reporter over a period of months. Sally Neighbour had manipulated him into a false sense of security. His comments in the broadcast were no proper basis for a prosecution. The authorities had been using him as a guinea pig to fine-tune their legislation. He had not had an opportunity to obtain legal advice as the program was broadcast early.

83. While he was overseas at Al Farooq camp he met Osama bin Laden and they shook hands. He appeared to be quite dignified. Nobody cared much about him, but he was revered in the camp. Propaganda videos were shown that he did not understand a word of and he was learning about the situation on the ground. There were four Australians in the camp in all, the others arriving towards the end of the training program. They did not discuss operational matters. When he heard the comment “Explosives can change government opinions”, he knew it was wrong but it was dangerous to leave. He was also repelled by descriptions of “daisy cutter” explosives used by the other side.

84. There was no television at the camp, but they heard about 9/11 on BBC, while he was still in Afghanistan. The trainers had said something big was coming, and thought it might be Tomahawk missiles, so they evacuated the camp. His own aim was to help unite the country. He had returned to the village near the front. Asked when he had decided that Afghanistan was no utopia, he replied that on a picnic at Kabul they had been told that a Taliban official (in a vehicle) had struck a child and left him on the road. They were self-righteous scumbags. Ahmad Shah Massoud, leader of the Northern Alliance, had later been murdered.

85. When speaking to the reporter John Faine he had been searching for a way to bridge the gap, to balance Afghan circumstances against the West. While in Kabul he saw girls in school uniforms.

86. He had arranged for the falsification of his visa because he was afraid, for following the fall of the Taliban and wanted to change his Afghan visa for a Pakistani visa. He had no choice, otherwise he would have been sent to Guantánamo Bay. The Australian Embassy was surrounded by troops. He knew what he was doing was illegal, but he wanted to get home. He was an idiot.

87. After returning to Australia in 2003, he remained a Moslem, but then changed his views because he no longer believed in the Prophet or the Book. He had separated from Maryati on 4 September 2014 and does not know what her views are now, but her relatives hold extreme views. His eldest son is now aged 22, and his youngest is 12. Maryati had turned them against him. He had been convicted on the passport offence in that name, but had no terrorism conviction. In his licence application he had not listed his other names, but had done so on the telephone before receiving a licence. He did not believe his licence had been suspended after 15 days, as it was on the system for 12 months. Later, on 11 January 2023, he had asked for his licence to be reissued in his new name, Jack O’Rourke.

88. His father had taken care of his Victorian junior permit. He had received his junior permit around 1979, then he obtained his licence in 1991, which lapsed in August 1997. He accepted what the official records stated.

89. In re-examination he said his communications with his parents had to be viewed in context. At Kabul he was a distance away from the front and life carried on as normal. The whole country was not a war zone, contrarily to what the Four Corners program had said. He had never considered hurting an innocent person when he went to the front. He was based in a supply centre, not in the combat zone, but saw the devastation. He had been waiting to go to the front, but the front had broken and the camp had been evacuated. He has had no contact with the Islamic community since 2016.

90. In addition to his own evidence, the applicant relied on five character references, the contents of which are outlined below.

Applicant’s submissions

97. The applicant tendered written submissions dated 10 October 2023 (exhibit A5), which began by stating that the applicant accepted and concedes that he had “travelled to Afghanistan in the early 2000s and fought for the Taliban against the Northern Alliance”. It was never his intention to be part of the terrorist group, he was not a terrorist and had never been one. It was his belief, albeit naïve, that he would help the people of Afghanistan in a civil war.

98. The media at the time and following took great interest in the story of “Jihad Jack”, including through interviews as part of a Four Corners program, and radio interviews. It was clear from the material that he had explained his motivation behind why he travelled to Afghanistan and the methods he employed to remove himself from that country once he became aware of the true motives of the Taliban.

99. He conceded that he had made certain statements to investigating authorities, but clarified that they were made in circumstances where he had been incarcerated and subjected to horrific torture at the hands of those authorities. There was no evidence before the tribunal that he had participated in any terrorist activities, either overseas or upon his return to Australia.

100. His evidence was that since his return to Australia around 2003, it had been his intention to return to as normal a life as possible, with his wife and children, and become a productive and valuable member of society. That was despite numerous hardships he encountered with law enforcement authorities and on a personal level with his now ex-wife and his children. The tribunal should place significant weight on his evidence that he renounced his Moslem faith in 2014 and deeply regrets the previous associations he had during his time in Afghanistan.

101. He has since remarried and is in full-time employment and has been gainfully employed for many years since his return to Australia. He identifies as a proud fifth-generation Australian with Aboriginal and Irish ancestry. He is now a man of the Christian faith and keeps his religious and political views to himself. He had provided evidence to the tribunal of his genuine reasons for wanting a firearms licence and that it is his and his wife’s intention to become primary producers. Once that eventuates, his need for a firearms licence would be for more than recreational purposes.

102. Significant weight should be placed on the fact that he has held a firearms licence in Victoria for a lengthy period of time and in New South Wales for a lesser period of time, with no breaches of the Act or regulations pertaining to firearm possession and use. He submits that the tribunal would be satisfied that his time in Afghanistan was done for altruistic, albeit naïve, purposes and not for the purposes of terrorism.

103. He submits that he is a completely different man from the person who travelled to Afghanistan in the early 2000s. He suffered horrific torture and incarceration at the time at the hands of overseas authorities and was later jailed in Australia before his convictions were quashed. The tribunal should also give careful consideration to the fact that his travels overseas to Afghanistan occurred over 20 years ago and he had not been the subject of any further criminal charges since his return to Australia and the dismissal of the charges relevant to that time against him. He asks the tribunal to accept that he is a changed man and that he be given the opportunity to prove that, by setting the decision of the Commissioner to revoke his firearms licence aside.

104. The applicant submits that on the evidence before the tribunal there is no real or appreciable risk identified and that the tribunal would be satisfied that there is virtually no risk associated with him should he be given the privilege of again being granted a firearms licence.

105. In oral submissions at the hearing, Mr Mainstone adopted those submissions, emphasizing that his client had never been a terrorist but made a bad decision over 22 years ago. He had tried to leave Afghanistan as soon as possible when he found out the real position.

106. The Four Corners program interview was consistent with his evidence and accepted that he had made bad decisions, but for altruistic motives. He had paid a heavy price: jail, torture, arrest and prosecution in Australia. He is now a different man who leads a quiet life, is married and working full-time. He is not simply relying on the passage of time to show his new outlook, as can be seen by his character references (exhibit A4). He seeks a firearms licence in order to reconnect with his culture and hopes to become a primary producer, for whom firearms are a tool of trade.

107. He had no intent to engage in terrorism and had been ready to return to Australia from Afghanistan before 9/11. He had resurrected his character. As regards public confidence in the licensing system, he submitted that the media coverage about him had been bad and had put him in a bad light. The passport offence was serious, but he had no other convictions and no breaches of the Firearms Act. He presented no risk to the public.

Consideration

108. Under s 63 of the Administrative Decisions Review Act1997 (ADR Act) the tribunal’s role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner’s decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.

109. The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner’s revocation of a licence or permit: s 75(1)(c). The tribunal is to make its own decision and there is no presumption that the Commissioner’s decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.

110. Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a 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. Section 11(4)(c) also provides that 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 the applicant’s intemperate habits or being of unsound mind.

111. The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28]–[34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89]–[91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10]–[12]. They do, however, provide guidance for the tribunal’s exercise of jurisdiction.

Fit and proper person

112. The first basis on which the respondent’s case rested was that the applicant is not a fit and proper person to hold a licence. Section 24(2)(c) provides that a licence may be revoked if “the Commissioner [or on review the tribunal] is of the opinion that the applicant is no longer a fit and proper person and can be trusted to hold a licence”.

113. The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 – 157, the High Court gave a general overview of the concept and the discretion that it embodies:

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 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…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.

114. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that:

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, or 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.

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

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

The grounds

117. The respondent presented a list of nine reasons why the revocation decision should be upheld. It is convenient to consider those points seriatim as a framework for consideration of the merits, and to identify the evidence and submissions for and against each one.

118. The first matter was that the applicant had been convicted of a serious offence contrary to s 9A(1)(e) of the Passports Act 1938 (Cth). The respondent submits that the conduct was premeditated and involved a degree of planning to arrange for the passport to be falsified. It was dishonest, as the applicant used falsified records to conceal his true travel movements to avoid detection by the authorities for his conduct in Afghanistan and association with senior members of Al Qaeda.

119. The sentencing judge, Curtain J, explained that it was necessary to protect the integrity of the passport system, which provides a secure and reliable form of identification. This type of offending undermined the reliability and integrity of the system on which Australia and other countries rely. Passports also allow for the movement of people across international borders and the relevant authorities in all countries have an interest in knowing who is entering and leaving their jurisdiction (R v Thomas [2008] VSC 260, [6]).

120. The applicant does not dispute that he committed the passport offence for which he was convicted and sentenced, but maintains that in the circumstances he had little choice. He had arranged to leave Afghanistan before 9/11, having discovered that the reality on the ground in that country was far different from the arcadian landscape painted by Maryati and others.

121. He successfully arranged for his family to cross into Pakistan, following them a few months later, but as Curtain J related, “In the context of post-9/11, you [the applicant] regarded the presence of a Taliban visa in your passport as a one-way ticket to Guantánamo Bay and that anybody found with such a visa would be regarded by Pakistani authorities as a terrorist. So as to avoid those consequences, your passport was altered and a Pakistani visa, which had been legitimately issued out of Cairo on 28 October 2000 was placed over the Taliban visa which was then not observable to the naked eye”. He said he was unable to obtain help from the Australian Embassy because it was surrounded by troops.

122. Secondly, the respondent pointed out that the applicant had been charged, but ultimately not convicted, of a serious terrorism offence. In the sentencing proceedings for that offence, of which he was originally convicted and which was ultimately overturned, Cummins J had this to say: “The person with whom you entered the room at the safe house, Khaled bin Attash, for your clandestine meeting was a senior and experienced Al Qaeda operative. He had been the mastermind of the bombing of the USS Cole, a film of which bombing had repeatedly been shown at the Al Farooq training camp. It is clear beyond doubt that Khaled bin Attash provided you with the money and airline ticket for terrorist purposes…. On the jury’s verdict you did not receive the funds and ticket for terrorist purposes… [but] you knew full well what bin Attash’s purpose was…. You let bin Attash think what he thought. You did not share your thought processes with bin Attash or with Al Qaeda, the donor of the funds and the ticket. You did not turn to Australian government representatives. You accepted the money. You accepted the airline ticket. You arranged for Al Qaeda to falsify your passport. You were on your way to Australia with the funds, with your falsified passport, on an Al Qaeda-provided airline ticket when you were arrested” (Director of Public Prosecutions (Cth) v Thomas [2006] VSC 120, exhibit R1, p 120).

123. The respondent maintained that his conduct showed that he was well capable of being manipulative. His dealings in Pakistan with the officers of ASIO and the AFP showed likewise. It was submitted that he was not foolish and naïve, but was an intelligent adult at the relevant times. There was no evidence that he had been tortured or ill-treated by AFP or ASIO in Pakistan.

124. The applicant’s case was that he had been swept up in jihadist ideology through the influence of Maryati’s literalist Wahhabi beliefs and other sources and that he had naïvely believed that by travelling to Afghanistan he could help to put an end to the civil war and help to bridge the gap between Western and Islamic worlds. He had been naïve and “well beyond reckless”. He had arranged to leave Afghanistan shortly before 9/11 but in the confusion that followed he had been willing to do and say anything to escape from the region. He also thought that admissions made in a Four Corners program could not be a proper basis for a prosecution and that he had been given insufficient credit for the assistance he had given Australian authorities and which had enabled the apprehension of several senior offenders.

125. The respondent’s third point was that the applicant was the subject of an interim control order under the Criminal Code (Criminal Code Act1995 (Cth)). The court in this matter had expert evidence and evidence from confidential informants who were in detention overseas testifying to their interactions with the applicant at the Afghanistan training camp, which they confirmed was run by Al Qaeda. The informants observed that he appeared to enjoy the training and take it seriously and he was well respected at the camp. He was also reported to have said that he wanted to go to the front line to fight against the Northern Alliance, and in particular wanted to be the person who killed the leader of the Northern Alliance (Jabbour v Thomas [2006] FMCA 1286, [31]).

187. An altercation described in event E 74610721 arose on 22 April 2020 when the applicant was working at a car parts warehouse (id., 13 – 14). Angela [name] was a friend from working at the company. She had been talking to the applicant about struggling with her partner Steven [name], who was being controlling. The applicant later that day received a highly abusive and threatening telephone call from a person police believed was Steven. The applicant was consequently named as the victim in a provisional apprehended violence order on 26 April 2020, which became a full order on 15 July 2020 and expired on 25 April 2022.

188. As recently as 28 November 2022, he told police that after he had left the religion he had been threatened by his son and ex-wife, as well as numerous other callers apparently from the Islamist community, and that was why he had changed his name and left Victoria (exhibit R1, pp 38, 41, 65).

189. Those incidents suggest a propensity of the applicant to become involved in potentially violent confrontations, whether as putative perpetrator or as a victim, requiring police intervention. The incident on 4 September 2017 leading to a complaint by Ms Brooks and the applicant suggests that even in comparatively recent times the applicant’s former associations with persons involved with terrorism can lead to sequelae potentially involving violence. Ms Curry also pointed out that the tribunal does not have before it any expert evidence in the applicant’s favour.

190. The misleading information he provided in connexion with his 2020 licence application is also troubling. In Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240, [52], the tribunal said “a person’s identity is fundamental to an application [for a licence] and to providing the Respondent with relevant information upon which a decision to grant or refuse a licence may be based”. Not providing the Commissioner in limine with all his previous names, particularly the one under which he was tried and convicted of a serious offence, calls into question his ability to comply with the requirements of statutory licensing scheme.

191. In his evidence the applicant stated that he and Marree intended to become primary producers on the Capertee (Glen Davis) property that Marree already owns. Other things being equal, that would tend to strengthen his case, as there is a public interest in law-abiding farmers and graziers having access to long arms for the protection of the environment and primary industry. It does not appear, however, that any concrete steps have been taken by the parties in that direction.

192. Finally, there is the matter of public confidence in the licensing system. In Kogias v Commissioner of Police [2020] NSWCATAD 297, [101], the tribunal had this to say:

Legislation such as the Firearms Act serves the public interest in ways that go beyond guarding against misconduct by an individual licensee. Licence refusals and similar orders serve the public interest by establishing a regulatory structure for an activity that not only protects the public from harm, but also helps to maintain public confidence in the licensing scheme by signalling that those whose activities do not meet the required standard will not be granted a licence or permit….

201. In this context the present case is an exceptional one. As the respondent contended, many members of the public would be concerned about the effectiveness of firearms regulation if a man with 11 known aliases who trained with Al Qaeda, met Osama bin Laden and other senior members of Al Qaeda, served at the frontline in Afghanistan for Al Qaeda and wanted to continue to fight against the Americans after 9/11 would now be entrusted with a firearms licence. Maintenance of public confidence in the licensing system looms large when considering the public interest in the circumstances of this case.

202. The events with which this case is mainly concerned now lie 20 years in the past and it is possible that a substantial portion of the public today is unaware of the story of “Jihad Jack” or has recollections of it that are based on incomplete or incorrect information. With the passing of time that story will fade into history. It may also be considered not altogether fair that the applicant’s position today is prejudiced by opinions over which he has no control and which may be based on misapprehensions. But the fact remains that his notoriety resulted entirely from his own bad choices.

203. The totality of the evidence leads to the conclusion that it is not at present in the public interest for the applicant to continue to hold a firearms licence, and I so find. The decision under review must be affirmed.

Order

204. Decision under review 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: 09 November 2023