Preston v Commissioner of Police, New South Wales Police Force

[2024] NSWCATAD 13

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Preston v Commissioner of Police, New South Wales Police Force [2024] NSWCATAD 13

Hearing dates:

30 October 2023

Date of orders:

12 January 2024

Decision date:

12 January 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member

Decision:

The decision to refuse the Applicant’s Category AB Firearms Licence is affirmed.

Catchwords:

ADMINISTRATIVE LAW - Firearms –– objects of legislation – public interest – public safety – unacceptable risk

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Cases Cited:

Artridge v Commissioner of Police NSW Police Force [2021] NSWCATAD 188

Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11

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

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police [2013] NSWADTAP 16

Cusumano v Commissioner of Police [2001] NSWADT 50

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409

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

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

Livadaru v Commissioner of Police [2008] NSWADT 160

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

Rose v Commissioner of Police (No 2) [2022] NSWCATAD 26

State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69

Ward v Commissioner of Police [2000] NSWADT 28

Wiltshire v Commissioner of Police [2005] NSWADT 75

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Kevin Barry Preston (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Applicant (Self-Represented)
McCullough Robertson (Respondent)

File Number(s):

2023/00180845

Publication restriction:

Pursuant to s 64 (1) (b), 64 (1) (c ) and 64 (1) (d) of the Civil and Administrative Tribunal Act 2013, the publication and release of the material in those paragraphs marked ‘[Not for publication]’ – paragraphs [34]-[38] inclusive are not to be published or released to any person other than the respondent or their representative.

Reasons for decision

What these proceedings are about

1. These proceedings concern the Commissioner of Police’s decision to refuse the applicant’s Category AB Firearms Licence on 19 April 2023 and the upholding of that decision by way of Internal Review determined on 19 May 2023.

Introduction

2. The applicant in these proceedings is Mr Kevin Preston (Mr Preston). The respondent is the Commissioner of Police NSW Police Force (the Commissioner). The Commissioner’s delegate in dealing with the licence application formed the view that it was not in the public interest for Mr Preston to hold a Category AB Firearms Licence.

Background

3. Mr Preston initially applied for a Firearms Licence on 21 December 2015. That application was rejected and Mr Preston was refused the licence on 3 February 2016. The refusal was a mandatory refusal under the legislation as Mr Preston had in the last 10 years been subject to an Apprehended Violence Order (AVO).

4. A second application for a Category AB Firearms Licence was made on 14 April 2023 (some seven years later) and more than 10 years since the expiry of the AVO on 4 June 2011.

5. On 19 April 2023 the licence was refused on the basis that it would not be in the public interest for Mr Preston to hold a Firearms Licence. References were made to Mr Preston’s past criminal history and ‘violent domestic circumstances’, which caused the delegate to have concerns regarding Mr Preston’s ability to maintain safe continuous control over firearms in his possession.

6. The delegate relied upon Mr Preston’s criminal history from 1979 to 1990 concerning offences of personal violence and dishonesty; drug related offending as well as traffic and firearms offences.

7. Reliance was also placed on a 2009 incident whereby Mr Preston went before the Court in respect to an assault on his daughter who at that time was under 18 years of age. That matter resulted in a conviction and a two-year AVO being issued against Mr Preston.

8. Concerns were also made concerning the veracity of information Mr Preston supplied in his 2016 Firearms Licence application.

9. On 30 April 2023 Mr Preston applied for an Internal Review of the refusal. The Internal Review was finalised on 19 May 2023 upholding the initial decision to refuse the licence. The reviewer essentially relied on the same grounds as the initial decision maker and determined that it would not be in the public interest for Mr Preston to hold a Firearms Licence.

10. On 27 May 2023 Mr Preston lodged his administrative review application with the Tribunal. The Internal Review decision of 19 May 2023 being the decision under review in the matter currently before the Tribunal.

Jurisdiction

11. The Commissioner had refused Mr Preston’s Firearms Licence application on the basis of s 11 (4) (a) and s 11 (7) of the Firearms Act 1996 which provides:

11 General restrictions on issue of licences(cf 1989 Act s 25, APMC 4, 5, 6)

(1) The Commissioner may issue a licence in respect of an application, or refuse any such application.

(2) A licence must not be issued until after the end of the period of 28 days following the day on which the application is made.

(2A) Subsection (2) does not apply if the application is for the renewal of a licence (including the renewal of a category A or B licence that involves the addition of either of those licence categories to the previous licence).

(3) A licence must not be issued unless—

(a) 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, and

(b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and

(c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and

(d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State.

(3A) Despite subsection (3) (b), the Commissioner may require an applicant for a licence to complete such firearms training and safety courses as are approved by the Commissioner in relation to the category of licence concerned.

(4) Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of—

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

(b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or

(c) the applicant’s intemperate habits or being of unsound mind.

(5) A licence must not be issued to a person who—

(a) is under the age of 18, or

(b) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or

(c) is subject to an apprehended violence order or interim apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to an apprehended violence order (other than an order that has been revoked), or

(d) is subject to one of the following in relation to an offence prescribed by the regulations—

(i) a good behaviour bond, whether entered into in New South Wales or elsewhere,

(ii) a community correction order imposed in New South Wales,

(iii) a conditional release order imposed in New South Wales, or

(e) is subject to a firearms prohibition order, or

(f) is a registrable person or corresponding registrable person under the Child Protection (Offenders Registration) Act 2000.

(5A) A licence must not be issued to a person if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that—

(a) the person is a risk to public safety, and

(b) the issuing of the licence would be contrary to the public interest.

(5B) The Commissioner is not, under this or any other Act or law, required to give any reasons for not issuing a licence on the grounds referred to in subsection (5A).

(6) Except in the case of a firearms dealer licence or where the applicant’s genuine reason is business or employment, a licence must not be issued to a person who is not a natural person.

(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

(8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence.

(emphasis added)   

12. Section 75 of the Firearms Act provides that a person aggrieved by any of the seven listed actions of the Commissioner can apply to the Tribunal for administrative review of that decision. The first matter listed at s 75 concerns the refusal of a licence. Relevantly the section provides:

Part 8 Applications to Civil and Administrative Tribunal

75 Administrative reviews by Civil and Administrative Tribunal of certain decisions

(1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions—

(a) the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person,

(b)..

(c) ...

(d)..

(e)…

(f)…

(g)…

13. The Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides:

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

14. The Tribunal has jurisdiction under the Firearms Act as noted at [12] above.

15. As noted from the section above, an application under s 75 of the Firearms Act is an administrative review. The Tribunal’s function on review under section 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

Administrative Review by the Tribunal

16. The parties agree that Mr Preston filed his application for Administrative Review on 6 June 2023 with the Tribunal. The application to the Tribunal was clearly within the 28 day period provided to lodge an application for Administrative Review. Therefore the Tribunal has jurisdiction to hear the matter having regard to s 75 of the Firearms Act 1996.

Applicant’s written evidence

• Exhibit ‘A-1’. Application for administrative review attaching grounds and copies of: Tow Truck Licence application form, Police Facts re: Assault matter 2009.

• Exhibit ‘A-2’: Signed one page statement of Kevin Preston dated 20 September 2023.

• Exhibit ‘A-3’ Three page signed statement of Kevin Preston dated 28 July 2023.

• Exhibit ‘A-4’ Signed one page statement of J Keenan dated 25 July 2023.

• Exhibit ‘A-5’ Signed two page statement of A Smith dated 25 July 2023.

• Exhibit ‘A-6’ Signed one page letter / declaration from K.M. Preston dated 23 July 2023.

• Exhibit ‘A-7’ signed four page statement / submission of K Preston dated 29 October 2023.

Respondent’s written evidence

• Exhibit ‘R-1’ Documents filed under s 58 ADR Act filed 3 July 2023.

• Exhibit ‘R-2’ Statement of Paul Cotton dated 18 July 2023.

17. The Commissioner was legally represented and provided detailed written submissions and made oral submissions at hearing. Mr Preston was subject to cross-examination at hearing.

18. The Commissioner relied on confidential evidence which was considered at a further sitting of the Tribunal following the conclusion of the open hearing. At the conclusion of the confidential hearing the Tribunal reconvened a short open session where it was explained to both parties that the Tribunal would need to reserve its decision.

19. The existence of confidential evidence and the application to have matters heard in camera were not of themselves confidential, only the contents of the confidential evidence. It was clear from Mr Preston’s and the Commissioner’s own open submissions that Mr Preston had a general (rather than specific) understanding of the nature of the confidential evidence. Orders were previously made by the Tribunal on 16 August 2023 whereby the provisions of s 59 of the ADR Act (in respect of the requirement not to file certain evidence until further order of the Tribunal) applied to some of the material, and s 64 (1) (b) (c ) and (d) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) was applied to some of the material.

20. In these reasons for decision the Tribunal has decided to receive that evidence and to maintain the orders for receipt on a confidential basis. I have decided to continue the orders made under section 49 (that the confidential aspect of the hearing not be open to the public) and 64 of the NCAT Act because having reviewed the material, the evidence suggests that the circumstances of this case are sufficiently special that the making of the orders sought is “desirable” within the meaning of s 64(1).

21. Before making any order the Tribunal must be satisfied that it is appropriate to make the order in the circumstances. As I have previously observed, the Appeal Panel of the former Tribunal has examined the circumstances where it would be appropriate to make an order.

22. In the case of State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69, the Appeal Panel of the ADT examined the equivalent provisions in the ADR Act at, [50] – [53] and [81] – [82]:

50 Within the opening words of section 75(2) of the ADT Act (and indeed of section 35(2) of the AAT Act), three elements of prime importance are the word ‘desirable’, the phrase ‘for any other reason’ and the word ‘may’. These indicate that the purpose (or purposes) to be served by a suppression order may be ‘any … reason’ (or reasons) whatever, that the power arises when the Tribunal is satisfied that the order is ‘desirable’ and that the actual making of the order is not mandatory but within the Tribunal’s discretion.

51 There are evident and important differences between a power conferred in these terms and the common law power to prohibit or restrict the reporting of matters occurring in open court described by McHugh JA in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 4. As set out above at [44], his Honour stated that by virtue of the principle of open justice, an order prohibiting fair and accurate reports of what occurs in the courtroom is only valid if it is ‘really necessary to secure the proper administration of justice in proceedings before it’. In this statement of principle, both the purposes to be served by a suppression order and the criterion for determining whether one may be made are formulated in distinctly narrower terms than in section 75(2) of the ADT Act.

52 In a number of leading authorities dealing with suppression orders at common law, the order sought was (as in the present case) an order preventing the public identification of a person – most commonly a witness – involved in proceedings being heard in open court. Frequently (though not in the present case) the order was sought at or near the commencement of the hearing and, if the application was granted, the order made was that throughout the proceedings the person concerned should be identified by a pseudonym.

53 In such cases, the courts have applied a criterion of ‘necessity’, such as that stated by McHugh JA. They have, however, widened the permitted range of purposes so as to include securing the proper administration of justice generally – i.e., in future proceedings as well as in the proceedings currently being heard.

…

81 It is difficult if not impossible to set out in short form all the matters that, according to the case law just discussed, should be taken into account in deciding whether an order should be made under section 75(2). It must suffice here simply to draw attention to the following points of relevance to our decision in this case: (a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of ‘desirability’; (d) the important differences between the types of suppression order that may be made – between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served (‘any other reason’); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or ‘embarrassment’ affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order.

82 In view of Ms Johnson’s submission regarding the criterion stated by the Court of Appeal in Walton v Momot, unreported, 17 April 1997 (BC9708241) (see [37] above), it is appropriate for us to express an opinion on its applicability. In the light of our examination of the authorities, we would not dispute that, for an order to be made, the circumstances should be ‘special’ or ‘out of the ordinary’ (though a requirement that they be ‘exceptional’ may involve setting the bar too high). But it is important to recognise that this is at most a necessary, not a sufficient, condition….Grant v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 158, [24].

23. Having reviewed those provisions and the evidence, as noted above I continue those orders made on 16 August 2023 and receive and apply (to the extent necessary) weight to the confidential evidence. In my view that evidence makes a clear and strong case for the grant of confidentiality, especially as the evidence appears relevant to the matters that I must consider having regard to the objects of the Firearms Act in respect of the substantive consideration before me.

23. The Tribunal is therefore required to have regard to the confidential evidence (as now received) and when considering it, the Tribunal cannot disclose the details of that evidence when determining whether granting Mr Preston the licence would be in the public interest. (s 75 (5) Firearms Act).

24. For those reasons a number of paragraphs that deal with the confidential evidence are marked ‘[Not for publication]’.

Mr Preston’s evidence at hearing

26. In evidence in chief Mr Preston advised that he was a licenced tow truck driver and had a Tilt Tray tow truck. Mr Preston adopted Exhibits ‘A-2’, ‘A-3’ and ‘A-7’ in evidence as true and correct to the best of his knowledge.

27. In cross-examination Mr Preston was asked about the incident concerning the assault of his daughter. Mr Preston agreed that he assaulted his daughter and agreed that he restrained her and ‘put her on the floor’. He said that he was trying to remove her from his house.

28. In respect of the 2015 Firearms Licence refusal whereby he was refused the licence on mandatory grounds (under s 11 (5) (c ) of the Firearms Act – having been subject to an AVO in the preceding 10 years), Mr Preston was asked about the information he provided. Mr Preston was taken to annexure 5 of the s – 58 documents where his 2015 application was reproduced. At item H question (f) Mr Preston was asked the following question as to whether he:

Within the last 10 years been the subject of a Apprehended Violence Order (other than an order which was revoked) or an injunction ordered by the Family Court?

Mr Preston answered ‘No’ to that question declared on 14 December 2015.

29. When asked why he falsely declared that information in his 2015 application Mr Preston said that it was possible that a Mr Crocker from the Sporting Shooters Association Australia (SSAA) may have filled in the form. Mr Preston added that if it was completed under his hand (and he could not recall if it had been), then his evidence was that it would have been done at the direction of Mr Crocker.

30. In respect of the P 650 Form (which would enable him to have a permit) Mr Preston’s evidence was that he has never completed such a form and that Mr Croker from the SSAA would have completed it. He said that Item ‘H’ on the 2015 Firearms Licence application form would have been answered ‘based on Ron’s (Mr Crocker’s) instruction’.

31. Mr Preston was taken to his criminal history and asked questions about the offences listed there. Drug related offences from 1979 a few months prior to his18^th birthday, serious traffic offences when he was 19 years of age, drug and dishonesty offences in 1982 formed the first portion of his criminal history.

32. More serious offences occurred in 1988 when Mr Preston was approximately 26 years of age. These offences involved malicious injury, use firearms under the influence, use firearm in a public place, and possess firearm to endanger life. Mr Preston claimed in his sworn evidence to have no recollection of these offences. His evidence was that after this time he went into (drug and alcohol) rehabilitation.

33. Mr Preston said that from 1980 to 1982 he had been licensed to have firearms but obviously by 1988 he was no longer licenced. He said that he now had permission to shoot from a Mr D Andrews from around 2015 on properties of 200,000- 300,000 acres. He said that this evidence had not been included in the s 58 documents filed by the Commissioner but was included with the material he submitted with the application for the Licence.

confidential paragraphs (evidence and submissions)

34. [Not for Publication].

35. [Not for Publication].

36. [Not for Publication].

37. [Not for Publication].

38. [Not for Publication].

end of confidential paragraphs

39. None of witnesses other than Mr Preston were required for cross-examination. Early in the hearing the Commissioner withdrew from tendering evidence from R. Tauton concerning Firearms Training courses and permits and did not press that evidence or related written submissions. The Commissioner instead relied on the confidential evidence and the open evidence of Senior Constable Cotton (which related to the confidentiality application) and the s 58 documents.

40. In oral submissions at the conclusion of the evidence the Commissioner submitted that the 2009 incident (involving the assault charges where the daughter Rebecca was the victim) is the crux of the matter. The historical matters, whilst relevant are not as important. The Commissioner submitted that the 1988 incidents though extremely serious were many years in the past and that lessened their impact compared to the 2009 incident. The issue concerning how Mr Preston might react to a matter involving his daughter was their major concern if he was given authority to possess and use firearms.

41. In respect of the residual concern about Mr Preston at some time having a firearms training permit, the Commissioner submitted that such permit was invalid. If there was no permit then clearly Mr Preston had no legal right to engage in firearms training and would not have been able to take part in such training.

42. The Commissioner submitted that enquiries had been made with Mr Ray Crocker who had advised them that he had did not possess relevant records for the matter.

43. In open written submissions the Commissioner submitted that the decision should be affirmed because of Mr Preston’s association with his daughter. ‘who is subject to confidential adverse police holdings and with whom the Applicant lives’. In this regard the Commissioner submitted that Mr Preston may not personally exercise continuous and responsible control over firearms; and the issue of a firearms licence to Mr Preston would be contrary to the public interest.

44. Further written submissions were made concerning Mr Preston not being a fit and proper person by furnishing false and misleading information to the Firearms Registry and the SSAA in 2015.

45. Reliance was also made on s 11(4) whereby without limiting the generality of s 11 (3) (a) of the Firearms Act, 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.

46. The Commissioner submitted that their concerns about Mr Preston’s way of life in respect of issuing the licence arise from the following matter: The domestic violence incident gives rise to a reasonable cause to believe that there will continue to be situations of conflict at Mr Preston’s residence, and, that in a conflict situation Mr Preston may not be able to exercise continuous and responsible control over firearms, and that if a licence was granted Mr Preston’s daughter would be likely to be aware that her father was licenced and may be storing firearms at the address where she resides.

47. Reliance was also placed on the case of Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25]:

1. The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal. The appellant appears to have adopted a similar view in formulating its reasons. Its argument, in effect, is that if its objections fail on character grounds, the matters as to character combined with the nature of the activity proposed to be engaged in are, at least in the case of the Class 1C licence application, sufficient to justify refusal in the public interest.

   48. Mr Preston submitted that he was an appropriate person to hold a licence. He had been approved and was allowed to enter Defence sites as well as holding a Tow Truck Authority. He made a costs application at the end of his submissions but as he was self represented the Tribunal did not have jurisdiction. In any event s 60 of the NCAT Act would apply to any costs and disbursements. Without determining the matter or jurisdiction there appeared to be no special circumstances evident in the conduct of the proceedings before the Tribunal to entertain disbursements claim.

Consideration

49. The decision under review is based upon the notion that Mr Preston having access to firearms would be contrary to the public interest.

50. I have previously noted that Deputy President Hennessy observed in the case of Livadaru v Commissioner of Police [2008] NSWADT 160 that in reference to the public interest at [54]:

In considering the public interest, regard must be had to the underlying principle of the Act. ….

51. I note that the underlying principle of the Act concerns public safety.

52. In respect of the public interest I note that such matters include public protection, public safety and public confidence in the administration of a licensing system. The Firearms Act 1996 identifies a purpose to deal with public safety at s-3 (1) (a) of the Act.

53. Section 3 of the Firearms Act 1996 provides:

3 Principles and objects of Act

(1) The underlying principles of this Act are:

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

(b) to improve public safety:

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

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

54. In the case of Rose v Commissioner of Police (No 2) [2022] NSWCATAD 26 the Tribunal observed that the ‘burden’ that an applicant is required to overcome on this issue is not taken to be insurmountable. At [56] when referring to the case of Martin, the Tribunal observed:

1. It is not the case, as indicated in Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] to [66], that an Applicant is required to discharge an almost impossible burden of proving a near-absolute negative.

2. Rather, as stated in Webb at [32] when considering the question of public safety:

"In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration".

55. The crucial issue in these proceedings concerning whether it would be an unacceptable risk to public safety to allow Mr Preston to hold a firearms licence. This relates to the public interest. In that regard I hold significant concerns around Mr Preston’s 1988 actions and the actions in 2009 whereby the Commissioner places emphasis.

56. As often observed whilst not the main basis for the decision for review before the Tribunal, the notion of ‘fit and proper’ is often referred to in the lead case of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and the various ADT and Tribunal cases that have relied on Bond. The case of Bond provides the general principle that fitness and propriety are not to be narrowly construed or confined and can extend to any aspect of fitness and propriety that is relevant to the public interest.

57. This position is consistent with the approach that the cases outlined above have set out concerning applying the concepts in a broad manner to the available evidence and having regard to the objects and purpose of the regime. I note that the licencing regime is designed to protect the public as a primary consideration and for this reason under the Firearm Act access to and use of firearms is not a right but a privilege.

58. As observed in Artridge at [21] – [27] the public interest question is the main task facing the Tribunal in this type of review.

The public interest

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

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

22. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] the Appeal Panel said that:

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

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

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

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

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

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

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

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

27. It has also been stated that the public interest requires that all licensees be aware of, and comply with, the legislative requirements: Cook v Commissioner of Police [2003] NSWADT 30 at [34]. Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police [2005] NSWADT 75 at [25].

59. The legislation and precedents indicate that the discretion is to be applied consistent with the purpose of the Firearms Act, one of which is to ensure public safety in accordance with s 3 (1) (a) of that Act. However it is conceded that the purpose of the licencing regime is protective not punitive and all endeavours are directed towards maintaining and enhancing public safety.

60. In balancing those risk matters as referred to in Rose with the objects and the overall protective purpose of public safety from s 3 of the Firearms Act I am not satisfied that on the evidence and material before the Tribunal, it would be in the public interest to allow Mr Preston to hold a Firearms Licence at present. In particular his current domestic circumstances involving his daughter are problematic and the evidence indicates that notwithstanding his assertions that he does not wish to own or possess firearms, living in the same residence would in my view create an unacceptable risk having regard to the objects of the legislation. A Category AB Licence would allow Mr Preston to lawfully purchase and possess approved firearms (in accordance with the Regulation) if his view changed in future concerning ownership.

61. In making this finding I note that Mr Preston did not have an opportunity to respond to the confidential evidence. I note also that significant evidence was lead in respect of the daughter, evidence which she did not respond to, even though other family members responded and were supportive of Mr Preston. It is unclear whether the daughter is aware of Mr Preston’s application in any event.

62. In my view the totality of the evidence establishes that the major concerns of the Commissioner and the necessary basis for refusing the licence remain.

63. The appropriate approach would be that the Tribunal affirms the decision.

Conclusion

64. Because of the findings that I have made, it is appropriate to affirm the decision of the Commissioner.

65. As this is an administrative review matter, it therefore follows that the correct and preferable decision is to affirm the decision of the respondent.

66. I therefore make the following order:

Orders

1. The decision to refuse the Applicant’s Category AB Firearms Licence is affirmed.

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

Registrar

Decision last updated: 12 January 2024