Oliver v Commissioner of Police, New South Wales Police Force

[2017] NSWCATAD 95

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Oliver v Commissioner of Police, NSW Police Force [2017] NSWCATAD 95
Hearing dates:	10 January 2017
Date of orders:	30 March 2017
Decision date:	30 March 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	D Dinnen, Senior Member
Decision:	1. The decision under review is affirmed.
Catchwords:	FIREARMS – revocation of licence – evidence - alleged conduct - fit and proper – risk to public safety – public interest.
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Firearms Act 1996 Firearms Regulation 2006
Cases Cited:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 32; [1990] HCA 33 Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 Commissioner of Police v Toleafoa [1999] NSW ADTAP 9 Cusumano v Commissioner of Police, New South Wales Police Service, [2001] NSW ADT 50 Davos v Commissioner of Police [2013] NSWADT 7 FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88 Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 Lee v Commissioner of Police NSW [2015] NSWCATAD 254 Lynch v Commissioner of Police [2006] NSW ADTAP 43 Puckeridge v Commissioner of Police, NSW Police Force [2015] NSWCATAD 42 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Vella v Commissioner of Police [2003]NSWADT 91 Ward v Commissioner of Police [2000] NSW ADT 28 Whiltshire v Commissioner of Police [2005] NSWADT 75
Category:	Principal judgment
Parties:	John Roland Oliver (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Solicitors: In Person (Applicant) Smythe Wozniak Lawyers (Respondent)
File Number(s):	1610576
Publication restriction:	None

REASONS FOR DECISION

Background

1. The Applicant was first issued with a Category AB Firearms Licence on 2 April 2007, due to expire on 24 May 2012. On 16 June 2010 that licence was cancelled on the basis that you had relocated to Victoria, but failed to notify the NSW Firearms Registry of that relocation pursuant to section 69 of the Firearms Act 1996 and clause 16 of the Firearms Regulation 2006 (“the first licence”).

2. The Applicant returned to NSW but failed to obtain a NSW firearms licence within three months of returning to this State in accordance with the requirements of section 27 of the Firearms Act 1996, and was found in possession of firearms in NSW in 2013 in breach of section 7A of the Firearms Act 1996. No charge was laid regarding this breach.

3. The applicant lodged an application for a probationary pistol licence on 19 March 2014. This licence was approved on 29 August 2014 with an expiry date of 23 October 2015.

4. The Applicant lodged an application for a Category AB Firearm Licence for the genuine reasons of “target shooting” and “recreational hunting/vermin control” based on membership of an approved club. This licence was issued on 2 April 2014 with an expiry date of 22 May 2019.

17 July 2015 Incident

5. On 17 July 2015, the Applicant was waiting to board a bus at Central Railway Station in Sydney which had been chartered to take members of Reclaim Australia to Melbourne for a rally. The Applicant was identified by police and he admitted he had a firearm in his locked bag that he had intended to stow in the baggage compartment of the bus. A search of the Applicant’s bags revealed a pistol and two empty magazines, two orange marine flares and a pair of bolt cutters, all of which were seized by police.

6. The incident attracted media attention and the applicant gave an interview to Radio Station 3AW, and made statements about his intentions regarding the firearm seized.

Revocation

7. On 20 July 2015 the NSW Police Force suspended the Applicant’s Category A B firearms licence number 409469120 and his probationary pistol licence number 411166890. The probationary pistol licence expired on 23 October 2015. On 14 March 2016 the Applicant’s Category A B Licence was revoked pursuant to sections 24(2)(b)(ii), 24(2)(c) and 24(2)(d) of the Firearms Act 1996 and Clause 19 of the Firearms Regulations 2006.

8. On 31 March 2016 the Applicant sought internal review of the decision of 14 March 2016. In that request for review, the Applicant provided his explanation for the events of 17 July 2015, his communications with the Firearm Registry, and his involvement in the Reclaim Australia organisation. On 8 April 2016 the Respondent acknowledged receipt of the Applicant’s request for internal review.

9. On 23 August 2016 the Respondent conducted its internal review and determined to affirm the decision to revoke the Applicant’s Category AB firearms licence.

10. This application for review of the Respondent’s internal review decision was made on 2 September 2016.

Legislation

11. The underlying principles of the Act are, relevantly:

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

2. to improve public safety by imposing strict controls on the possession and use of firearms and by promoting the safe and responsible storage and use of firearms.

12. Section 24 of the Act provides for the revocation of licences in a range of circumstances, including:

(2) A licence may be revoked:

(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or

(b) if the licensee:

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

(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or

(iii) contravenes any condition of the licence, or

(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

(c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or

(d) for any other reason prescribed by the regulations.

13. Clause 19 of the Firearms Regulation 2006 prescribes that:

19 Revocation of licence-additional reasons

The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

14. The Tribunal has jurisdiction to review the Respondent’s decision pursuant to section 75(1) (c) of the Act and section 30 of the Civil and Administrative Tribunal Act 2013.

15. In determining the application, the Tribunal must decide what is the correct and preferable decision having regard to the material before it: s63(1). The material the Tribunal may consider includes material that now exists but which did not exist at the time of the Decision and material that was otherwise not considered by the relevant administrator: Puckeridge v Commissioner of Police, NSW Police Force [2015] NSWCATAD 42 at [2].

Fit and Proper

16. The High Court dealt with the expression "fit and proper person" in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11; 64 ALJR 462; 21 ALD 1. In that matter the ABT was required to refuse a licence if it was not satisfied that the Applicant or the holder of a licence was a “fit and proper person". Toohey and Gaudron JJ stated (at 380) 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, 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. “

17. In the same case, Mason CJ stated at [63] that:

“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.”

18. In Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at paragraph [9] the High Court defined the concept of fitness and propriety as having three components - "honesty, knowledge and ability."

19. In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said of the term “fit and proper ":

"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 evolving 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."

20. In FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88, Judicial Member Molony said at [45]:

Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake.

21. The Applicant’s fitness and propriety must be determined in the light of the role he is to undertake. The Tribunal must consider the evidence before it, taking into account and weighing up matters both contrary to and in favour of the Applicant.

22. In Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 Senior Member Higgins dealt with an application in relation to firearms licensing under the Act. At paragraph [22] she stated that the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety.

“22 In my opinion, the term "fit and proper person" in s. 11(3)(a) of the Act should also be given a wide meaning. As stated by Mason CJ the breadth and content of the concept must be derived from the Act and the purposes of the Act. In this case, Parliament has expressly stated what the underlying principles of the Act are. This includes the principle that the possession of a firearm is a privilege and that it is conditional on the overriding need to ensure public safety (see s. 3(1)(a)). Accordingly, the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety. In my opinion Parliament has made this clear with the additional words in s. 11(3)(a) of "... and can be trusted to have possession of firearms without danger to public safety and the peace." That is, s. 11(3)(a) of the Act requires the Commissioner to determine the fitness and propriety of an applicant for a licence by having regard to the applicant's conduct and whether that conduct is such that he can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace.”

The public interest

23. Section 24(2) (d) of the Act prescribes that a licence may be revoked for a reason prescribed by the Regulation. Clause 19 of the Regulation allows the Commissioner of Police to revoke a licence if he is satisfied that it is not in the public interest for the licensee to continue to hold the licence. Accordingly section 24 (2) (d) of the Act and Clause 19 of the Regulation work together to provide authority for the revocation of a licence where the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

24. The concept of "public interest" was discussed by the Administrative Decisions Tribunal (NSW) (“the ADT”) in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 as follows:

The "public interest" is an inherently broad concept giving an appellant [the Respondent] 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 in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operated 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.

25. The circumstances in Toleafoa related to the revocation of a security licence under the Security Industry Act 1997 (NSW). In Ward v Commissioner of Police [2000] NSWADT 28, the ADT confirmed that these comments apply equally to the Act.

26. In Cusumano v Commissioner of Police [2001] NSWADT 50, the ADT stated:

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

27. In Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43, the ADT Appeal Panel said that the relevant factors to be considered by the Respondent in determining whether to exercise his discretion include matters of general public policy, which were in turn said to be informed by the principles and objectives of the Act, namely, to confirm firearm possession and use as a privilege conditional upon the overriding need to ensure public safety.

28. In Ward v Commissioner of Police the ADT's Deputy President Hennessy considered the fitness and propriety of Mr Ward to hold a firearms licence. The Deputy President stated at paragraphs [27 – 28]:

"27 ...The question for the Tribunal is whether, based on all the evidence, it would have confidence that [the Applicant] would not pose a risk to public safety if he had access to firearms.

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

29. The principal issue in determining public safety is therefore whether or not there is a risk to the safety of the public if the Applicant retains the relevant licence: Vella v Commissioner of Police [2003] NSWADT 91.

30. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences: Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7, [117].

31. In considering risk to public safety, the ADT recognised that it must be satisfied that a person would not pose a risk to public safety if they had access to firearms. Those same principles apply to the current jurisdiction.

Material before the Tribunal

32. The Respondent filed and relied on a bundle of material pursuant to section 58 of the Administrative Decisions Review Act 1997. This bundle contained the material taken into account in making the reviewable determination, including the Applicant’s firearms licence history, criminal history and antecedents, COPS records, facts sheet from the criminal proceedings, the applicant’s firearms applications and all supporting documentation, correspondence regarding the suspension of the applicant’s licences, the revocation notice issued by the Respondent, the internal review request and its accompanying documentation, and the reviewable determination and its reasons. The section 58 bundle also contained a printed page from the ABC news website regarding the 17 July 2015 seizure.

33. An additional bundle was relied on by the Respondent containing police and witness statements, COPS entries, copies of police notebook pages, and printed internet pages regarding the 17 July 2015 incident. The Respondent also relied on a transcript of recorded interview between the applicant and police at Wyong Police Station on 4 August 2015, an unsworn and unsigned statement of Trudy Lewis, Customer Relations Manager, dated 21 December 2016, and a bundle of confidential material which was not disclosed to the Applicant pursuant to s64 of the Civil and Administrative Tribunal Act and s75(5) of the Firearms Act 1996.

34. The Applicant relied an affidavit dated 14 December 2016, two character references and a printed internet article regarding Reclaim Australia.

35. The Applicant gave oral evidence at the hearing and was cross examined. Both parties made oral submissions and provided written submissions. The Applicant’s written submissions were prepared by counsel.

The Respondent’s case

36. The Respondent contended that the Applicant is not a fit and proper person to hold a firearms licence; and that it is not in the public interest for him to hold a firearms licence.

37. The Respondent submitted that it was not in the public interest for the Applicant to continue to hold a firearms licence on the basis that the Applicant had contravened the Act four times in the past three years, his criminal history and the fact that the Applicant would choose to take a pistol, bolt cutters and two marine flares on a bus to Melbourne when the main purpose of the Applicant’s trip was to attend a public protest rally, which had the very real potential for violent confrontation. It was submitted that the Applicant’s conduct was inappropriate and not what the public would expect of a responsible firearms user.

38. The Respondent submitted that it was of significant concern that the Applicant had intentions of storing a handgun within the confines of a baggage area on a bus, in an area accessible to other persons travelling on the bus. Further, police observed a bag, containing the firearm, unattended whilst the Applicant was waiting for a bus in an area where numerous persons would be able to steal or misappropriate the bag thereby resulting in theft of the firearm. It was of further concern that the Applicant was prepared to leave the bag containing the firearm unattended or in the care of unlicensed persons.

39. The Respondent submitted that, on the basis of those facts being established, the Tribunal could not be satisfied that there was virtually no risk to public safety if the Applicant was permitted to have a firearms licence, and thereby it was not in the public interest to allow the Applicant to hold a firearms licence.

The Applicant’s case

40. The applicant contended that he had obtained advice from the Firearms Registry on how to safely transport the handgun “to the range in Melbourne on a charter bus” and had followed those instructions. The handgun was seized prior to that transportation, and it was contended that any potential breach in the manner of transporting the handgun was “minor, if not technical”, as “the firearm would have been safe and secure. And that is the result the legislation intends to achieve.”

41. It was contended that there was no breach of Victorian “safekeeping requirements” by the intended actions of the Applicant. It was contended in submissions that the Applicant had no intention of leaving the firearm in an unattended car while he attended the Reclaim Australia protest. It was contended that the applicant had legitimate reasons for possessing the bolt cutters and flares seized by Police which were not relevant to the issue of what the applicant’s intention was with respect to the handgun.

42. It was contended that the previous breaches of the firearms legislation in 2010 and 2013 were inconsequential and minor, revolving around the Applicant’s changes of address. Further, that the Applicant’s criminal history, consisting of charges in the 1990s resulting in financial penalties, and two driving disqualifications in 2003 and 2007, were was also inconsequential because it “happened a long time ago”.

40. The applicant submitted that the Respondent did not take issue with the Applicant’s fitness to hold a licence prior to July 2015, despite his breaches of the legislation when changing addresses, and his criminal history.

41. The Applicant contended that the public’s opinion of his political views was irrelevant, as was the conduct of persons, other than the applicant, holding those same political views.

42. The Applicant’s continued involvement in Reclaim Australia was denied at hearing by the Applicant, and the Respondent submitted that the Tribunal should not take this into account or otherwise afford significant weight to that evidence.

Discussion

46. I agree with the Applicant’s contention that his criminal history amounting to some convictions resulting in financial penalties over 20 years ago and driving disqualifications over a decade ago are not sufficiently relevant and are inconsequential – ie, not significant - to my consideration of whether he is a fit and proper person under the Act, or a risk to public safety. Whilst still relevant to my determination, I also agree that the Applicant’s previous breaches of the firearms legislation are of a minor or technical nature.

47. In my view it is the events of 17 July 2015 which provide the basis for an assessment of whether the Applicant’s licence should be revoked. From my assessment of the evidence, I find that on the balance of probabilities, the applicant intended to safely transport the handgun. It was secured, unloaded, in a locked box, in a bag which was within his close sight at the time of its seizure. The Applicant intended to place that bag in a secure under-bus storage compartment, but didn’t make any inquiries as to whether there would be a secure space for that purpose. On balance, I find that it is likely that he would have left the bag containing the locked box in that storage compartment regardless.

48. I also find that the Applicant did not intend to take the handgun to the protest rally, but did intend to leave the locked box containing the handgun in the hire car parked nearby for the duration of the protest.

49. I do not consider that the Applicant’s involvement in the Reclaim Australia organisation or his intention to attend the protest for Reclaim Australia is particularly relevant to my determination, because of my finding that he did not intend to take the firearm to that event. The law protects liberty of political communication: Lee v Commissioner of Police NSW (2015) NSWCATAD 254 at 161. The Applicant’s communication of his political beliefs in isolation cannot form the basis for a negative assessment of his character or fitness. I also find that on the basis of the evidence before me, there is nothing to suggest that the Applicant himself is a risk to public safety.

50. Section 39 of the Firearms Act 1996 requires a person to take “all reasonable precautions” to ensure a firearm’s safe keeping and that it is not stolen or lost. Having regard to the authorities discussed above, I am concerned that the Applicant’s intentions to transport his firearm in the bus storage compartment, and to leave the firearm in his unattended hire car, albeit in a locked box, would have nevertheless created a risk to public safety. The applicant did not make any inquiries about secure storage facilities on the bus before bringing the locked firearm box in his bag for transport. The applicant also did not make any formal arrangements for secure safekeeping of the firearm while he attended the protest, but rather had a vague list of options he had considered without checking their viability, including leaving the handgun with an unspecified firearms dealer, at a police station, or in his locked hire car parked at an unknown location.

51. In those circumstances, I find that reasonable precautions were not taken by the Applicant. Inadequate storage or transport practices create the opportunity for criminals to steal firearms. That was the view of the Tribunal in Whiltshire v Commissioner of Police [2005] NSWADT 75 at [24] where it held that:

ensuring that only permitted firearms are in the possession of licensees and that those firearms are stored in a safe and secure manner decreases the likelihood that they may be used in committing serious offences against the community. It is clear from the legislation that Parliament has identified these matters as central and critical objectives of the legislation.

52. With reference to the authorities discussed above, I am not convinced that the Applicant possesses the requisite knowledge of firearms safety, storage and registration requirements to be considered a “fit and proper person”. Whilst his previous breaches may be considered technical or minor, when viewed with his actions in failing to take all reasonable safety precautions in his intentions on 17 July 2015 to transport his firearm, they demonstrate a lack of requisite knowledge or concern for the strict requirements of firearm licences and possession. I am also therefore not confident that the Applicant poses “virtually no risk” to public safety if he retained his firearms licence.

53. I have had regard to the Applicant’s evidence regarding shooting being the only sport he can participate in or enjoy following his back injury, which is regretful, and the positive character references he provided. However it is settled law that firearm possession and use is a privilege, not a right, which is conditional on the overriding need to ensure public safety. In these circumstances the correct and preferable decision is to revoke the applicant’s licence.

Order

1. The decision under review is affirmed.

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

Registrar

Decision last updated: 30 March 2017