Regan v Commissioner of Police, New South Wales Police Force

[2023] NSWCATAD 337

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Regan v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 337

Hearing dates:

6 September 2023

Date of orders:

22 December 2023

Decision date:

22 December 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member

Decision:

(1) The decision to revoke the Applicant’s Category AB Firearms Licence is set aside.

Catchwords:

ADMINISTRATIVE LAW - Firearms –– objects of legislation – public interest – public safety – objective evidence – all reasonable precautions

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Firearms Regulation 2017

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, NSW Police Force v Lee [2016] NSWCATAP 234

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

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

Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7

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

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

Masterson v Commissioner of Police New South Wales Police Force [2017] NSWCATAP 205

Newman v Commissioner of Police NSW Police Force [2018] NSWCATAD 17

Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272

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

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

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

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Kevin Patrick Regan (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Counsel:
A Wilson (Applicant)

Solicitors:
Fourtree Lawyers (Applicant)
Makinson d’Apice Lawyers (Respondent)

File Number(s):

2023/00076986

Publication restriction:

Nil

Reasons for decision

What these proceedings are about

1. These proceedings concern the Commissioner of Police’s decision to revoke the applicant’s Category AB Firearms licence on 11 October 2022 and the upholding of that decision by way of Internal Review determined on 13 February 2023.

Introduction

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

Background

3. Mr Regan was first issued with a Category AB Firearms Licence on 7 June 2013. On 28 June 2018 Mr Regan applied to renew that licence and a new licence issued on 1 August 2018. That licence (being a 5 year licence) was due to expire on 1 August 2023 (5 weeks prior to the hearing of this matter). However on 11 October 2022 the licence was revoked by the Commissioner.

4. The revocation arose in circumstances whereby Mr Regan reported that four of his firearms had been stolen. In responding to this report Police attended Mr Regan’s address and identified a number of non compliance issues whereby the storage requirements were assessed as not in keeping with provisions of the Firearms Legislation and Regulations.

5. NSW Police issued Mr Regan with three infringement notices for the following matters:

• ‘Not notify changed address where firearm is stored’;

• ‘Holder of Category A or B licence not have approved storage’;

• ‘Not prevent theft / loss of firearm – not pistol / proh firearm’.

6. Following on from the decision to issue the infringement notices, Police examined Mr Regan’s firearms details through the Integrated Licensing System (ILS). NSW Police identified that Mr Regan had not maintained his stated ‘genuine reason’ for holding the firearms licence and records indicated no current or earlier Shooting Club membership since 30 April 2015. Further, records also indicated non compliance with mandatory attendances at a Club since joining the Sporting Shooters Association Australia (SSAA) on 4 April 2013.

7. The delegate determined prior to any adjudication on the infringement notices that Mr Regan had failed to comply with the relevant firearms storage / use provisions and that the non-compliance had resulted in the theft of the four firearms. On this basis the delegate was satisfied that Mr Regan has ‘failed to take all reasonable precautions’. This matter coupled with the apparent failure to update the safe storage address with NSW Police, and the non attendance contrary to his genuine reason requirements, caused the delegate to revoke Mr Regan’s licence.

8. The delegate relied on s 24 (2) (c1) of the Firearms Act 1996 (NSW) and s 24 (2) (d) to revoke the licence. The section relevantly provides:

24 Revocation of licence(cf APMC 6, 1989 Act s 36, 1990 Reg cl 27)

(1) A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order.

(1A) The Commissioner must revoke a licence that is held for the purpose of employment as an armed security guard (within the meaning of the Security Industry Act 1997) if—

(a) the licensee has failed to undertake any firearm safety training required under this Act or the regulations, or

(b) in the case of a licensee who holds a class 1F licence or a visitor permit authorising the licensee to carry out security activities of a kind authorised by a 1F licence under the Security Industry Act 1997—the 1F licence or visitor permit is revoked under that Act or the licensee contravenes any condition of the firearms licence under this Act.

(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.

….

(Emphasis added)

9. Mr Regan applied for an Internal Review of the decision to revoke his Category AB Firearms Licence on 9 November 2022. On 13 February 2023 the senior delegate determined the review and affirmed the decision to revoke the licence but varied the basis (grounds) for the decision.

10. The senior delegate examined the circumstances of the loss of the firearms and found discrepancies in what firearms were recorded at which address (serial numbers), and that the measures that had been taken to safely store the firearms were inadequate. Specifically that the padlocked room could easily be forced open and the storage container / safe, was a steel cabinet that could be forced open and removed form the floor. Other criticisms of the cabinet or locker (being non-compliant with the regulations) were made including that it lacked a 3-point locking mechanism, was made of below standard and thickness of steel, and not situated in a residential premises.

11. Reference was made to Clause 107 of the Firearms Regulation 2017 and s 39 (1) of the Firearms Act. Those provisions provide:

39 General requirement

(1) A person who possesses a firearm must take all reasonable precautions to ensure—

(a) its safe keeping, and

(b) that it is not stolen or lost, and

(c) that it does not come into the possession of a person who is not authorised to possess the firearm.

Maximum penalty—50 penalty units or imprisonment for 2 years, or both, if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or a pistol, or 20 penalty units or imprisonment for 12 months, or both, in any other case.

Note—

Reference to a pistol includes a prohibited pistol.

….

107 Participation requirements for sport/target shooters (other than pistol shooters)

The holder of a licence issued for the genuine reason of sport/target shooting (not being a category H licence) must be a member of at least one approved shooting club (other than a pistol club) and must, during each compliance period for such a club of which the person is a member, participate in not less than 4 shooting activities of an approved shooting club (other than a pistol club) whether or not of a club of which the person is a member.

12. The senior delegate relied upon cl 15 (1) and cl 20 of the Regulation to revoke the licence. The clauses provide:

15 Requirement to notify Commissioner if reason for possessing firearm ceases

(1) If a licensee’s genuine reason for possessing or using a firearm under the authority of a licence can no longer be established by the licensee, the licensee must, within 14 days after becoming aware that the licensee has ceased to have that genuine reason, notify the Commissioner of that fact in writing or in such other manner as may be approved.

Maximum penalty—50 penalty units.

….

20 Revocation of licence—licence not in the public interest

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.

13. The Senior Delegate whilst noting Mr Regan’s submission that he is a primary producer, noted that no evidence of this matter had been provided to the Firearms Registry. The Senior Delegate found that because of the safe storage and genuine reason issues it was not in the public interest for Mr Regan to hold the licence.

14. On 6 March 2023 Mr Regan lodged his administrative review application with the Tribunal. The Internal Review decision of 13 February 2023 being the matter currently before the Tribunal.

Jurisdiction

15. The Commissioner had revoked Mr Regan’s Firearms Licence application on the basis of cl 20 of the Regulation, which is set out at [12] above.

16. 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 third matter listed at s 75 concerns the revocation 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) a condition imposed by the Commissioner on a licence or permit issued to the person,

(c) the revocation of a licence or permit issued to the person (other than a revocation on the basis that the holder of the licence or permit is subject to a firearms prohibition order or an apprehended violence order),

(d)..

(e)…

(f)…

(g)…

(Emphasis added)

17. 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.

18. The Tribunal has jurisdiction under the Firearms Act as noted at [16] above.

19. 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

20. The parties agree that Mr Regan filed his application for Administrative Review on 6 March 2023 at the Newcastle Registry of 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’. Affidavit of Kevin Patrick Regan affirmed 14 June 2023.

• Exhibit ‘A-2’: Affidavit of Kevin Patrick Regan affirmed 15 June 2023.

• Exhibit ‘A-3’ Affidavit of Amy Stokoe affirmed 6 June 2023.

• Exhibit ‘A-4’ Affidavit of Donna Page affirmed 14 June 2023.

• Exhibit ‘A-5’ Letter / reference dated 13 Jun 2023 from S O’Connor.

• Exhibit ‘A-6’ Letter / reference filed 20 June 2023 from S Marshall.

• The applicant also filed and served detailed written submissions and submissions in reply.

Respondent’s written evidence

• Exhibit ‘R-1’ Documents filed under s 58 ADR Act (128 pages) filed 21 April 2023.

• Exhibit ‘R-2’ Information obtained from Queensland Police Supplementary Bundle (11 pages) filed 18 August 2023.

21. Mr Regan as represented by Solicitors and Counsel. The Commissioner was legally represented and provided detailed written submissions and made oral submissions at hearing. Mr Regan was subject to cross-examination at hearing. At the end of Mr Regan’s cross examination the Commissioner advised that the other witnesses of Mr Regan were no longer required for cross examination at hearing.

Mr Regan’s evidence at hearing

22. In evidence in chief Mr Regan advised that he had only attended the SSAA once. He conceded that he should have advised Police that he no longer wanted to have Target Sport Shooting as his genuine reasons for a licence. In respect to what he declared on the application form about this matter and the possible making of a false statement Mr Regan said that he intended to go to the range to shoot when he completed the form.

23. In cross-examination Mr Regan conceded that his genuine reason for holding a licence is now primary production and hunting / vermin control. He conceded the error at paragraph 65 of ‘A-1’. In response to questions about whether he had been accessing firearms whilst affected by alcohol Mr Regan said that he went to the Braxton Hotel in a Courtesy Bus prior to his last evening at the Dalwood premises before the robbery. His wife’s friend had dropped him back to the farm. In respect of alcohol consumption his best estimate was 5-8 regular strength beers consumed. He did not recall when he got there or when he left. Between 7:00am and 9:00am the next day he drove back to Stockton and went jet skiing and subsequently had an accident. But for the accident he was planning to return to the farm late that day.

24. Mr Regan said that his jet skiing accident occurred around 3 or 4 pm that afternoon. He underwent surgery for a snapped ligament. As a result of the injury and subsequent surgery he could not drive himself between 17 February 2022 and 16 March 2022. Mr Regan said that his wife drove him to the property on 16 March 2022 and that when he arrived, he discovered what had occurred, being the break in and theft of firearms. His evidence was that no one other than thieves had been there since 17 February 2022.

25. Mr Regan denied what was recorded in the COPS event that he had told Police he had returned there over the intervening period several times.

26. Mr Regan said that firearm would be taken to the property depending on what farming he would be doing. He said that during the first inspection at the Stockton address the Constable had said that the Dalwood address (farm) did not need to be inspected as that was not where the firearms were to be stored.

27. Mr Regan stated that between July 2014 and 2023 he did not attend the shooting Club SSAA events. He said that he attended only one group hunt in 2013/2014 and no target shooting at all.

28. On the day that he discovered the break in Mr Regan said that he was prepared and planning to go back and get the guns at the Dalwood farm property. He intended to do this within a day or two of leaving but the Jet Ski accident had prevented this particularly as he needed treatment and recovery and needed to be driven by his wife.

29. When questioned about how the theft might have come about Mr Regan referred to two persons he had working with him at the farm who would have known that he had access to firearms but they could not have known where in the house the gun cabinet was stored. Mr Regan said that no one lived at the Dalwood farm full time, but that he visited it multiple times a week and stayed there overnight at least one night a week.

30. Mr Regan clarified to the Tribunal that he would have left firearms secured at the Dalwood property for a maximum of three consecutive days in the years leading up to his jet ski accident when he was unable to return to the farm to continue using and then retrieve the firearms.

31. There was significant discussion between the parties and the Tribunal about the locked room and steel cabinet / gun safe at the Dalwood property where the firearms had been stolen from. These discussions canvassed and included an examination of the photos of the room and door as well as the cabinet as set out in the s 58 documents.

32. Whilst initially required for cross examination, after Mr Regan’s evidence the Commissioner no longer required his wife (Dr Stokoe) or long term friend Ms D Page to give oral evidence. Their affidavits (‘A-3’ and [‘A-4’) were read.

33. In oral submissions at the conclusion of the evidence the applicant submitted that the alleged breaches of s 39 and s 40 of the Firearms Act and Cl 17 of the Regulation, were not made out on the basis of the evidence filed by the Commissioner in the proceedings. The applicant submitted that the s 58 bundle does not contain evidence sufficient to support a finding of breaches of those provisions.

34. The applicant conceded that there had been a lack of sport target shooting participation and also submitted that he should not have listed that matter as one of his genuine reasons for requiring a firearms licence in his renewal in 2018. He also submitted however that the matter should not count against him concerning the Tribunal determining whether it was in the public interest for him to hold a licence.

35. Mr Regan’s legal representative submitted that the case was not typical of one the Tribunal usually sees. There are no allegations concerning domestic violence proven or otherwise, criminal matters or Police and criminal intelligence. Both of the witnesses have provided unchallenged affidavit evidence (Stokoe and Page) about the applicant’s character and suitability. It was submitted that due to their professional lives both witnesses have experience of harm and trauma and are able to attest to Mr Regan’s level of responsibility concerning prevention of harm in such areas.

22. It was submitted that Mr Regan, was characterised by the evidence as a ‘law abiding family man’ with no discernable issues in respect breaches and failures under the Firearms Act. Reference was made to Mr Regan’s submissions in reply whereby at [23] he addresses a fresh argument by the Commissioner that he had engaged in the making of a false and misleading statement in respect of his response to his 2018 renewal. Rather than make a false statement he had omitted to ‘strike out’ the words Sport Target Shooting at the bottom of the first page of the renewal document. It was also submitted that Mr Regan was never cross examined about his intentions to engage in sport target shooting thus raising a Browne v Dunn unfairness issue. Mr Regan’s state of mind when completing the form was never put to him by way of cross examination.

23. In respect of the security and compliance issues around the storage at the Dalwood farm property Mr Regan submitted that the photos showed that the arrangements were compliant. From the photos exhibited to ‘A-1’ photo 2 and photo 3 shows the lock on the same door. Photo 7 depicts looking into the room and photo 5 shows the cabinet with the door forced open at the top as does photo 7. The photo shows that the door is still affixed at the bottom. The gun safe / cabinet is depicted affixed to the floor and the wall. The photo on page 30 shows the four fixing holes in the base of the cabinet / safe. Both parties agreed that the photos in the annexure to ‘A-1’ showed the gun safe that was subject of the robbery.

24. Mr Regan’s Counsel submitted that Mr Regan was at the farm, he locked the gun safe, which was technically compliant, with his keys. He used this safe when he was at the farm with his firearms but they were not in use. Reference was made to the case of Artridge v Commissioner of Police NSW Police Force [2021] NSWCATAD 188. Counsel submitted that matters must not be considered in isolation and require a ‘counsel of perfection’ for Mr Regan in both his answers and conduct.

25. Reference was also made to Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272 whereby at [47] the Tribunal observed:

47. Licence holders are not required to have led entirely exemplary lives, and on all the evidence I find that there is no realistic prospect that he would present any risk to public safety or the peace if his licence were reissued. I therefore conclude that he is a fit and proper person to hold a firearms licence.

…

53. As I have already found that the applicant is a fit and proper person to hold a firearms licence, including that he presents no danger to public safety or the peace, public interest considerations do not weigh against the applicant’s case, however.

54. In addition, as I have found in a number of other cases (e.g. McGrath v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 98, [66]), there is a public interest in law-abiding farmers and graziers having access to long arms, without which New South Wales could scarcely have had a primary industry to begin with.

55.While a captive bolt gun would provide a way of putting down injured stock, as the respondent submitted, it would be useless against vermin and feral pests that damage the environment and productive industry. Firearms are the only humane and effective means of countering them without endangering native fauna. I therefore find that it would not be contrary to the public interest for a licence to be issued to the applicant.

40. Counsel submitted that the position in Romanos was analogous to the present case and that Mr Regan should be granted the licence. It was submitted that there was nothing irregular about the need for Mr Regan to work as a primary producer across multiple sites and that the legislation did not adequately envisage the circumstances of occupational rather than recreational users of firearms. In closing it was submitted that the storage requirements were compliant and that no breaches at the safe storage address of Stockton were found, and the guns would only usually leave Stockton to be transported to other sites for work.

Respondent’s submissions

41. The respondent submitted that they do not require a counsel of perfection and referred to [62] of their submissions in that the licensing regime requires ‘strict compliance’ because issue of firearms can result in devastating consequences as set out in Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7.

In my view, it is essential that licensees comply with the legislative requirements. The legislature has determined that imposing strict controls on the possession and use of firearms is the best way of improving safety. The most fundamental principle of the Act is that the possession and use of firearms is conditional upon the overriding need for public safety. The legislation requires strict compliance precisely because misuse of firearms 117. It can result in catastrophic consequences. The legislature did not intend that it be open to the Applicant or any other licensee to determine that an alternative method of disabling a firearm is to be preferred to that approved by the Commissioner. It is for the Commissioner, not the individual licensee to determine how a weapon is to be rendered inoperable.

42. The failure of Mr Regan to notify the Police of the other address for storage so that an inspection could occur had ultimately resulted in the loss of the firearms. The Commissioner submitted that Mr Regan could and should have complied with cl 28B of the Firearms Regulation.

28B Requirements relating to safety and storage

(1) The holder of a licence or permit must not store a firearm in a dwelling unless it is an inhabited dwelling.

Maximum penalty—50 penalty units if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or pistol, or 20 penalty units in any other case.

(2) The holder of a licence or permit must not store a firearm on premises other than a dwelling unless—

(a) the premises are in a proximity to an inhabited dwelling that allows the premises to be easily observed by the holder of the licence or permit, or by a person on behalf of the holder of the licence or permit, from the inhabited dwelling, or

(b) the holder is a licensed firearms dealer and the premises are commercial premises from which the holder carries on the business of, or at which the holder carries on activities as, a firearms dealer, or

(c) the requirements of subclause (3) are complied with.

Maximum penalty—50 penalty units if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or pistol, or 20 penalty units in any other case.

(3) For the purposes of subclause (2)(c), the requirements are as follows—

(a) the firearm must be—

(i) stored in a safe of an approved type, and

(ii) fitted with a trigger or barrel lock that prevents the firearm from being discharged, and

(iii) secured individually on, or in, a locked device within the safe,

(b) the safe must be fitted with an alarm of an approved type that is monitored off-site,

(c) the premises on which the firearm is stored must have an intruder alarm and duress facilities that are monitored off-site and are of an approved type.

(4) In this clause—

inhabited dwelling, in relation to the storage of a firearm by the holder of a licence or permit, means—

(a) a dwelling that is the principal place of residence of a person, whether or not the person is the holder of the licence or permit, or

(b) a dwelling at which a person resides while the firearm is stored there, whether or not the person is the holder of the licence or permit.

permit means a permit that authorises the possession of a firearm.

43. The Commissioner submitted that there were a number of discrete breaches including the failure to go target shooting, the failure to comply with the requirements around change of safe storage address. In addition the Dalwood address was not a residence even though Mr Regan maintained that it was. (Mr Regan had submitted that there was no statutory requirement to actually live at the safe storage residence address).

44. The Commissioner whilst not pressing any issue concerning the gun safe / cabinet submitted that the discrete breaches established a lack of understanding of details relating to compliance with the Legislation.

45. The Commissioner also accepted that the primary residence was in Stockton but had failed to comply with s 40 of the Firearms Act.

40 Category A and category B licence requirements

(1) The holder of a category A or category B licence must comply with the following requirements in respect of any firearm to which the licence applies—

(a) when any such firearm is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable,

(b) if such a receptacle weighs less than 150 kilograms when empty, it must be fixed in order to prevent its easy removal,

(c) the locks of such a receptacle must be of solid metal and be of a type approved by the Commissioner,

(d) any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the receptacle containing any such firearm,

(e) such other requirements relating to security and safe storage as may be prescribed by the regulations.

Maximum penalty—20 penalty units or imprisonment for 12 months, or both.

(2) A licensee does not have to comply with the requirements of this section if the licensee satisfies the Commissioner that the licensee has provided alternative arrangements for the storage of firearms in the licensee’s possession that are of a standard not less than the requirements set out in this section.

46. In reply Mr Regan submitted that in respect of the COPS entry the question was not whether the conversation was et out in the record or transcript or not, but whether it was accurate.

47. It was submitted that there was no issue with Mr Regan’s credibility or candour when giving evidence and there was no evidence about his state of mind and as a result it was not possible to make any finding that the target shooting entry on the renewal was a false and misleading statement.

48. Further Mr Regan addressed the disagreement between the parties concerning whether the Dalwood property was a dwelling. It was submitted that (a) the residence was a dwelling in accordance with cl 28B of the Regulation, (b) the gun safe was not in an ‘outbuilding or shed’ and (c ) there was no statutory requirement for the applicant or a person to be permanently resident in the residence. Persons rarely remain perpetually on premises, leaving during the day, coming and going, and going away for days. The applicant submitted that the words in the clause should be given their ordinary meaning.

49. In closing Mr Regan submitted that s 39 provided a general requirement to take reasonable steps (all reasonable precautions) around safe keeping. No circumstances or measures will be absolutely beyond the demolition or breakage of physical measures put in place around safe storage, but reasonable steps is the requirement of licence holders.

50. The applicant submitted that the case is about risk and there is ample evidence of compliance with the Legislation but for Mr Regan’s disabilities due to his injury at the relevant time.

Consideration

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

52. I note that at the closing of the hearing the Commissioner advised that they did not press the tendered evidence in exhibit ‘R-2’ concerning matters arising in the State of Queensland.

53. I note 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. ….

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

55. 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.

56. 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

57. The Appeal Panel of the ADT in the case of Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16 discussed how the Tribunal should approach matters of public interest in licensing regime reviews.

28. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 [at 33] the 'public interest' is:

. . .

33. 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. In this case the public interest case was a very strong one. The public would, we believe, be quite concerned that a man with a serious history of violence, including violence using weapons, for which he served several years' imprisonment might now be entrusted with a pistol.

58. 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".

59. The crucial issue in these proceedings concerning whether Mr Regan should continue to hold a firearms licence relates to the public interest. In that regard significant concern is raised around Mr Regan’s actions in having his firearms ‘unattended’ for some four weeks when he was unable to retrieve then due to physical injuries arising in an unrelated context.

60. 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.

61. 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. In this instance the 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.

62. As Senior Member Ransome 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].

63. 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.

64. 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 satisfied that on the evidence and material before the Tribunal, it would be in the public interest to set aside the revocation of the licence so that there would be no impediment to a fresh licence application. I note that the licence subject of the revocation and this review has now expired. I will address this issue at the end of the reasons.

63. I note that Mr Regan has no criminal record or history. He has a traffic record which includes a PCA matter and drive unlicensed but otherwise his traffic record is unremarkable. Those matters are more that 15 years prior.

64. A significant public interest issue is that Mr Regan is a primary producer. That does not mean that the Tribunal disregards breaches asserted or proven, but it does show that when balancing the public interest test there is some weight to be applied to the benefit and purpose for Mr Regan being granted a licence, in that aspects of him holding a licence would be considered to be in the public interest. The question with the balance, is whether it is contrary to the public interest for the revocation to be set aside.

65. As a primary producer he has a genuine reason for firearms possession when licenced. I note his evidence and submission around the 2018 application and find that when considering the public interest, there is no significant weight that attaches to this nomination and subsequent lack of compliance with the attendance requirements. He has maintained a genuine reason in the area of primary production / vermin control.

66. Likewise in respect of his injury and stated evidence as to why he did not return to the Dalwood property late the following day and subsequently for approximately four weeks, I accept his affidavit evidence of the applicant, his evidence at hearing and the evidence of his wife who was not required for cross examination by the Commissioner. The discrepancy in the applicant’s evidence and the reference in the COPS entry concerning having returned to the farm could not be tested further on the Commissioner’s evidence. It seems unfathomable that the applicant would have made such a statement with his injury practically preventing him from driving and working whilst he recuperated.

67. In my view the totality of the evidence establishes that the major concerns of the Commissioner and the necessary basis for revoking the licence have fallen away on assessment of the available evidence during the administrative review. Having made that finding I note that the loss of the firearms is a very serious and significant matter. On the face of it that event has a significant potential to impact on public safety.

68. However in my view the evidence indicates that in the circumstances of his injury the applicant took all reasonable precautions.

69. The appropriate approach would be that the Tribunal sets aside the decision.

Conclusion

72. Because of the findings that I have made, it is appropriate to set aside the decision of the Commissioner.

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

74. However, as noted above, because the licence lapsed on 1 August 2023, the Tribunal cannot reinstate the licence, but had the licence still been valid then on setting aside the revocation the subsequent order of the Tribunal would have been to direct that the licence be reinstated.

75. I therefore make the following order:

Orders

1. The decision to revoke the Applicant’s Category AB Firearms Licence is set aside.

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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: 22 December 2023