Sisson v Commissioner of Police

[2016] NSWCATAD 13

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	Sisson v Commissioner of Police [2016] NSWCATAD 13
Hearing dates:	16 September 2015
Date of orders:	13 January 2016
Decision date:	13 January 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N S Isenberg - Senior Member
Decision:	The Commissioner’s decision under review is set aside and in substitution thereof a decision that the Applicant be issued a category A, B, C licence.
Catchwords:	FIREARMS – licence application – fit and proper person test – public interest test.
Legislation Cited:	Administrative Decisions Review Act 1997 Administrative Decisions Tribunal Act 1997 Evidence Act 1995 Firearms Act 1996 Firearms Regulation 2006
Cases Cited:	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 Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 Pantle v Commissioner of Police, New South Wales Police Service [2001] NSWADT 207 Ward v Commissioner of Police [2000] NSWADT 28 Wilkinson v Commissioner for Police [2002] NSWADT 59
Category:	Principal judgment
Parties:	Wayne Earl Sisson (Applicant) Commissioner of Police (Respondent)
Representation:	Solicitors: Hadden Kemp Solicitors Pty Ltd (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	1510277

NOTATION

[This notation is not to be read as part of the Reasons for Decision]

This decision has been set aside on appeal. On 3 May 2016 by the Appeal Panel constituted by M Harrowell, Principal Member, made the following orders by consent:

1. That leave be granted to extend the appeal to a consideration of the merits of the matter;

2. That the appeal be allowed;

3. That the decision of Senior Member Isenberg at first instance [in proceedings [2016] NSWCATAD 13] be set aside;

4. That in substitution that the correct and preferable decision is that:

1. the Respondent is not a fit and proper person to hold a firearms licence;

2. that it is not in the public interest for the Respondent to hold a firearms licence;

5. That the decision of the Commissioner in refusing the licence application is affirmed.

Reasons for decision

Background

1. On 23 October 2012 four police officers attended a rural property known as Sunray near Tingha in New South Wales. The Applicant raised sheep and cattle on Sunray and lived there with his wife and their children, the oldest of whom was 9 years old at the time. The Applicant owned Sunray.

2. Shortly after arriving at Sunray certain of the police officers conducted a search and found seven firearms, including three prohibited firearms, and some ammunition and magazines. The firearms, ammunition, magazines and some containers were seized by the police. The police also took possession of some vegetable matter and plant leaf found at Sunray.

3. The Applicant was charged with possession of the seized firearms. However, Jefferys J of the District Court held that the police evidence had been obtained in the course of an illegal search and refused to admit the evidence. The charges were withdrawn and no convictions were recorded. As at the hearing date before me no other charges have been laid against the Applicant.

4. In December 2014 the Applicant applied for a Personal Firearms Licence for Category A, B and C licences for the purpose of primary production. The application included evidence of completion of the NSW Firearms (Longarms) Licence Qualification Course. By notice dated 4 February 2015 (the Decision) the application for the licence was refused. The grounds for refusal were stated, in summary, to relate to the finding of firearms and ammunition at Sunray on 23 October 2012, that some of the firearms and ammunition were not safely stored which was a direct threat to public safety, and it would not be in the public interest for the Applicant to be issued with a licence authorising him to possess and use firearms.

5. The Applicant requested an internal review of the Decision. The Applicant received a Statement of Reasons as to the result of the internal review which had taken place on 16 April 2015. The internal review decision was that the Decision was affirmed. In summary the reasons given included:

…you would have been well aware of the legislative obligations in that you must be licensed and must register firearms. The failure to obtain the appropriate license, to register your firearms and weapons and maintain the safekeeping of these items while they were in a family environment has directly and severely compromised public safety.

In this regard, I have placed significant weight on your unsafe conduct as you had unauthorised possession of seven unregistered firearms, two prohibited weapons (magazines) and ammunition and you failed to safely store those items.

… without any explanation to assist in understanding your actions I am left to conclude that you chose to ignore your obligations.

I am satisfied public safety must be the paramount consideration over and above your desire to use firearms. In this regard, I note your solicitor submits that your grazier/farming operation requires the use of a firearm. It has been held that the fact that a licensee’s livelihood is threatened by the revocation or refusal does not of itself outweigh the public interest particularly in circumstances when no detail as to the actual impact on the livelihood was provided.

… as you have breached the fundamental provisions of the Firearms and Prohibited Weapons legislation and placed public safety at serious risk, I believe the correct and preferable decision is to affirm the refusal of your firearms licence.

Jurisdiction of the Tribunal

6. Section 75(1) of the Firearms Act 1996 (the Act) provides that a person may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (the ADR Act) of a decision by the Commissioner to refuse to issue a licence. In accordance with s 63 of the ADR Act the Tribunal is empowered to decide what the correct and preferable decision is, having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law, and may exercise all of the functions conferred or imposed on the Commissioner. In determining the application, the Tribunal may affirm, vary or set aside the decision or refer it back to the Commissioner to be further dealt with.

Material before the Tribunal

7. The Applicant relied on:

1. an affidavit by the Applicant made 30 May 2015;

2. a copy of the judgment of Jefferys DCJ in Regina v Sisson dated 3 September 2014;

3. a signed, but not submitted, application by the Applicant for a firearms licence dated 27 July 2001;

4. submissions on behalf of the Applicant received by the Tribunal on 3 August 2015;

5. a bundle of authorities; and

6. oral submissions by Mr Kennedy, solicitor, during the course of the hearing.

8. The Respondent relied on:

1. a bundle of documents headed BRIEF OF EVIDENCE dated 7 July 2015 (sic) and filed on 3 July 2015 under s. 58 of the Administrative Decisions Tribunal Act 1997;

2. a bundle of documents headed The Commissioner’s Evidence created 17 August 2015 filed with the Tribunal on 25 August 2015;

3. written submissions received by the Tribunal on 25 August 2015; and

4. oral submissions by Mr Zoppo, solicitor, during the course of the hearing.

9. In summary the Respondent argued that:

1. the Tribunal should admit the illegally obtained evidence as it was highly relevant to the questions of whether the Applicant was fit and proper to hold a licence and whether it was in the public interest for the Applicant to hold a licence.

2. The evidence establishes numerous contraventions of the Act including possession of firearms without a licence, a failure to comply with safe storage requirements and possession of prohibited weapons.

3. Convictions for firearms offences provide a mandatory 10-year period of disqualification and if the police evidence had been admitted in the District Court proceedings it was most likely that a conviction would have resulted.

4. The Applicant was aware of the legal requirements for a licence for many years but chose not to seek one until the police discovered his firearms.

5. In order for the Tribunal to be satisfied that the Applicant is a fit and proper person the Applicant must demonstrate qualities that will allow the Tribunal and the public to have confidence in his honesty, knowledge and capacity in relation to the licence.

6. The storage by the Applicant of firearms and ammunition in and around the caravan and shearing shed at Sunray created significant risk to the safety of the occupants of his home including his young children.

7. Firearms possession and use is a privilege and not a right and the Tribunal cannot be satisfied on the evidence that it is in the public interest for the Applicant to be afford this privilege as he chose for many years not to comply with the Act.

10. In summary the Applicant’s submissions were that:

1. the material relied on by the Commissioner was found by the District Court to have been illegally obtained, was not admitted for consideration by that Court and should not be admitted by the Tribunal.

2. The public would not be put at risk if the Applicant was granted a firearms licence.

3. It is in the public interest that the Applicant be granted the privilege of a licence due to his requirements as a primary producer.

4. The Applicant is a fit and proper person. He has never been convicted of a criminal offence nor been the subject of an AVO or a Firearms Prohibition Order due to mental illness. He is not incapable due to physical infirmity or disease or disability.

5. None of the transactions under which the Applicant obtained firearms occurred after the 1996 change in legislation.

6. The Applicant’s firearms were used primarily for the destruction of vermin and for animal husbandry when required.

7. The majority of the firearms were stored in an appropriate safe, other than the firearms used on a daily basis.

8. Until the Applicant was 18 years old, in 1989, people on the land were exempt from requiring what was then known as a shooter’s licence. Until 1989 the landowner was legally deemed of sufficient expertise and experience and possessed of the common sense to own firearms without any legal interference.

9. During the Applicant’s formative years, the manner in which the firearms at Sunray were kept and found in 2012 would have been considered nothing out of the ordinary and certainly not a matter for the police.

10. The Applicant’s offending can be attributed to nonfeasance rather than malfeasance. His failure to update relevant registration and licensing requirements reflect a situation brought about by traditional legal reinforcement up to 1989, and then personal inertia, increasingly compounded by the passage of time until he was fearful of approaching the authorities to rectify the situation.

11. The Applicant has been punished by the loss of the use of his firearms for nearly 3 years, he has been punished financially in that he has incurred legal fees to successfully defend the criminal charges against him and pursue administrative procedures and these proceedings.

12. The Tribunal could reasonably find that the risk of the Applicant not complying with the Act in future is sufficiently minimised due to the rehabilitative effect of this punishment. The Applicant has learned that there are severe consequences for failing to abide by the legal firearms regime and his responsibilities.

Consideration

Issues before the Tribunal

11. The relevant decision for consideration by the Tribunal is the decision to refuse to grant the licence application. The issue before the Tribunal is whether the decision was the correct and preferable decision having regard to the principles and objects of the Act and the material now before the Tribunal. The determination of the issue depends on whether it is (or is not) in the public interest for the licence to be granted and whether the Applicant is a fit and proper person who can be trusted with any or all category A, B and C firearms without danger to public safety or the peace, s 11(3).

The law

12. Relevant legislation concerning the licensing, use and safekeeping of firearms is found in the extracts from the Act and the Firearms Regulation 2006 (the Regulation) set out immediately below and elsewhere in these reasons. All references to sections are to sections of the Act and all references to clauses are to clauses of the Regulation unless otherwise stated.

Legislative principles and objects

13. I have extracted from the Respondent’s submissions at [11] and [12] the following statutory provisions which state the underlying principles and certain of the objects of the Act. There is no dispute as to these provisions.

11.   The underlying principles of the Firearms Act 1996 include:

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

12.   The objects of this Act include as follows:

to establish an integrated licensing and registration scheme for all firearms,

to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms,

to ensure that firearms are stored and conveyed in a safe and secure manner.

14. Part 2 of the Act provides for licences and permits and includes the following relevant provisions.

11   General restrictions on issue of licences

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

…

(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,

(b)…

(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,

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

(a)… 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 who has, at any time within 10 years before the application for the licence was made, been subject to such an order (other than an order that has been revoked), or

(d)  is subject to a good behaviour bond, whether entered into in New South Wales or elsewhere, in relation to an offence prescribed by the regulations, or

(e)  is subject to a firearms prohibition order.

…

(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.

12   Genuine reasons for having a licence

(1)  The Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm.

(4)  Subject to this Act, an applicant for a licence has a genuine reason for possessing or using a firearm if the applicant:

(a)  states that he or she intends to possess or use the firearm for any one or more of the reasons set out in the Table to this section, and

(b)  is able to produce evidence to the Commissioner that he or she satisfies the requirements specified in respect of any such reason.

Table

…

Reason: primary production

The applicant must:

(a)  be a person… who is the owner, lessee or manager of land used for primary production, and

(b)  state that he or she intends to use the firearm solely in connection with farming or grazing activities (including the suppression of vertebrate pest animals on the land concerned).

13   Category B licences—restrictions on issue

Subject to the regulations, the Commissioner must not issue a category B licence to any person unless the person, in addition to establishing a genuine reason for being issued with the licence, produces evidence to the satisfaction of the Commissioner that there is a special need for the person to possess or use a firearm to which licence category B applies.

14   Category C licences—restrictions on issue

Except as provided by section 17A, the Commissioner must not issue a category C licence to any person unless:

(a)  the genuine reason established by the person for being issued with the licence is primary production (or such other genuine reason as may be prescribed by the regulations), and

(b)  in addition to establishing any such genuine reason, the person produces evidence to the Commissioner’s satisfaction that there is a special need for the person to possess or use a firearm to which licence category C applies, and

(c)  the person produces evidence to the Commissioner’s satisfaction that any such special need cannot be met by any other means (including by the authority conferred by a category A or category B licence).

19   Conditions of licence

(1)  A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.

(2)  Without limiting subsection (1), each licence is subject to the following conditions:

(a)  the licensee must comply with the relevant safe keeping and storage requirements under this Act, and

… 

(3)  A licence is subject to such other conditions as may be prescribed by the regulations.

Admissibility of evidence

15. The Respondent submitted that the Tribunal should admit evidence, which had been found by the District Court to have been illegally obtained, on the basis that the evidence was relevant and highly probative. Mr Zoppo conceded that there was no authority directly on the point of admitting evidence found to have been illegally obtained.

16. Mr Zoppo also submitted that pursuant to s 63 of the ADR Act the Tribunal is required to decide what the correct and preferable decision is having regard to any relevant factual material and pursuant to s 38 of the CAT Act the Tribunal was not bound by the rules of evidence.

17. Mr Kennedy submitted that the Applicant relied upon the reasoning of Jeffreys J in the District Court in refusing to allow the evidence and relied on s 138(3)(c) of the Evidence Act 1995.

18. Shortly after the proceedings commenced, and in anticipation of conflicting submissions by the parties in respect of the admissibility of a substantial part of the Respondent’s evidence, I granted the Applicant a certificate under s 128 of the Evidence Act in respect of any evidence I admitted during the proceedings which related to or arose from the events at Sunray on 23 October 2012. I note that the Respondent neither consented nor objected to the certificate.

19. Having regard to the s 128 certificate, the provisions of ss 38 and 63 of the ADR Act and CAT Act respectively and the guiding principle to be applied to proceedings in the Tribunal namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings ( s 36 CAT Act) I admitted the Respondent’s evidence that had been disallowed in the District Court, subject to any subsequent determination I may make as to the weight to be given to that evidence.

The evidence

20. The Respondent submitted at [46] that the evidence established that:

1. the Applicant was aware that licences were required to lawfully possess and use the firearms that he had in his possession;

2. in 2001 he chose not to seek a licence or register his firearms from that time until the police discovered the firearms in 2012;

3. he held a large number of firearms some of which were prohibited firearms including a sawn off rifle;

4. despite living in a household with young children the Applicant stored firearms and ammunition in and around the caravans and the shearing shed contrary to the requirements of the Act, and in a manner that created significant risk to the safety of the occupants of his home; and

5. the firearms and ammunition were visible to anyone that attended the Applicant's home and the firearms could have been stolen or unlawfully used by any person including children or visitors.

21. The Applicant’s evidence included the following:

1. He was born and raised on the land. He went to school until he completed his leaving certificate at 17. He then attended Tafe, and completed a number of courses including welding and obtaining an explosives ticket all of which had to do with working on the land, which is the only work he has carried out since he left school. At the time of his affidavit on 30 May 2015 he was 43 years of age.

2. He is married with several children and grazes cattle and sheep on Sunray. As a result of an accident while working on his property in 2006 he suffered severe injuries which substantially hampered his ability to work on the land for some time.

3. While growing up, firearms were commonplace in the house he lived in, and in sheds and vehicles.

4. The Applicant’s affidavit included the following:

15. …a rifle was kept in the wash house between the sink and the wash tub, a shot gun was in the office of the house, a .22 was behind the seat in the car. They were all kept loaded and ammunition handy. They were another tool as far as we were concerned, however, my father was pretty strict about them.

16. We were taught from the youngest age to respect the firearms as being potentially very dangerous. We were not allowed to touch them. It was the same with machinery, horses and cattle, there were things that posed a danger if approached in the wrong way. We were imbued with the common sense not to engage in risky behaviour around potentially dangerous items.

17. …. My father was a typical farmer of the time, and he was very conscious of the expense of ammunition, and I didn't start using weapons personally until I was 14 when I purchased a .22 magnum.

21. The Anschutz .22 was just given to me by a fellow that had no further use for it as he had left the land. I still have the holster it came in. It had a sawn off barrel and the stock was cut off before I got it. These weapons were quite common for farmers to carry about on the motorbikes and in gloveboxes in trucks and tractors, kept handy to destroy sick or injured animals or vermin at close range. I actually made a foresight out of quicksteel putty for the Anschutz, and used it for years for just this purpose.

23. I never got a shooters licence when I became eligible at 18 out of slackness, and because in those days it was just too easy not to have one. I know for a fact my father never had a shooter's license in his life, although my brothers all got their licences.

24. When the tough new gun laws came in after the Port Arthur massacre in 1996, I gave an uncle a pump action shotgun to hand in. By that stage I knew that things were changing and I didn't have a licence. I knew it was wrong not to have one, and would resolve now and then to get one, but just didn't appreciate the severity of the consequences enough, and would put off doing it. I simply never got around to going through the process.

25. … I did fill out an application in 2001, but it went back in the drawer and I never sent it. I was also worried by that stage that if I applied for a licence and then tried to register my firearms, that the police would charge me for the firearms I had. I foolishly just didn't get any legal advice, or feel confident enough to speak to the police about the situation I was digging myself into.

26. I have always handled firearms with care and respect when I am using them, and have never had any accidents or accidental discharges etc. I have only ever used my firearms for their intended uses, that is in conjunction with running my own properties in feral animal eradication and on the odd occasion destroying injured or diseased livestock.

27. I have always been frugal in the use and conservation of ammunition. I am aware of my surroundings at all times, there have always been spots where I won't shoot due to the proximity of a public road or neighbour's buildings and stock.

28. …in the raid my possession of a safe was documented. Four of my seven weapons were secured in it. I have had the gun safe since 2001, when the storage law came in from memory. I had a mate make it to C Grade for the semi-automatics, being locked in three spots, top middle and bottom. If the lock was tampered with or cut the mechanism falls apart so the locking bolts stay in place. The safe is made from 4mm steel. One man can not pick it up. It is very heavy. It is still anchored in its position, two big hex head screw bolts in the back and two in the bottom. The police wrestled it and couldn't budge it.

30. Since 23rd October 2012 I have been without the use of firearms on my property, and have had to destroy stock by more old fashioned methods which I find upsetting and distasteful. Vermin have increased in number, I have acquired a hunting dog and have trusted friends that will come and shoot when it suits them, but this is unsatisfactory. I cannot afford to have a professional shooter come on. It is frustrating not to be able to use a firearm, as the opportunity to effectively destroy vermin usually arises when I am working on the property.

31. If I were to be granted a Firearms Licence I would not be a danger to the public.

32. I am fully conversant with the Firearms Act 1996 as it now stands. I understand fully that my firearms must at all times when not in immediate use be secured in a proper safe. This means that the weapons must not be in the house even if I am there at the time, and not immediately engaged in their handling, inspection, cleaning or use.

33. I understand that there are magazines that I may not have, being magazines of more than ten rounds capacity. I understand that weapons must be stored separately from ammunition at all times, and ammunition, primers, projectiles, cases and gunpowder locked securely in a separate secured safe or container that must be anchored so as not to be able to be carried easily away.

34. I understand that I cannot possess ammunition for a weapon that I do not have. I understand that it is an offence to purchase ammunition for any other person, or give them ammunition. I understand that it is an offence to allow any other person not Licensed to do so, to have access to my firearms. I understand that it is an offence to allow any of my children access to my firearms until they are 12 years old and then only under my immediate supervision and only if they have a minors permit pursuant to the act. I understand that it is an offence to allow my children or any minors to go shooting with my weapons unsupervised, with or without a permit.

35. I understand that it is an offence to have parts for firearms of a type not registered to me. I understand that all firearms I own must be registered. I understand that I may only use my firearms on my own property. I understand that all gun parts must be properly secured when not in use. inclusive of magazines and bolts, which can't be left in farm vehicles. I understand that I cannot leave any ammunition in farm vehicles, sheds, in the house etc.

36. I understand that it is an offence to allow any person without a Firearms Licence access to the key which secures the safes, including my wife and children.

37. I have applied for a Firearms Licence inclusive of "C" for semi automatic rifle. "Sunray" is 2,200 acres, and adjoins 40,000 acres of a nature reserve which harbours large numbers of feral pigs, goats, rabbits, foxes and increasing numbers of deer. Half of Sunray is thick regrowth on undulating rocky granite country. A semi-automatic weapon is the best option for destroying vermin in this environment.

22. In his oral evidence the Applicant said:

1. when he was growing up the firearms kept in his home were always loaded.

2. To the best of his recollection all of the firearms which were found in his possession in October 2012 were acquired by him before 1996 when the law that regulated the use and possession of firearms became tougher.

3. He was aware that he had to be licensed for the firearms he owned.

4. In about 1996 he gave an uncle a pump action shotgun to hand in partly because he understood that it was illegal to carry a firearm around with no licence and possibly so that the police would not focus attention on him.

5. The shortened Anschutz .22 rifle in his possession in October 2012 was shortened before it came into his possession. He used it to put down feral pigs after he trapped them. He had suspicions that after 1996 it was illegal to possess a shortened firearm.

6. The weapons which were not in the firearms safe were kept by him in the caravan in which his family lived because they were his every day firearms.

7. It was not a concern to him in October 2012 that some ammunition was not stored in a firearms safe while his school aged children were present. However, that was something that would concern him now.

8. The reason he had in his possession some ammunition which did not relate to the firearms in his possession was that over the years some of his mates would come hunting and they left ammunition behind. He put the ammunition away until they came back.

9. When asked why he did not hand in firearms during any amnesties which were announced by the police, the Applicant said that he did not know why he had not handed the firearms in.

10. He was aware, when the police attended Sunray in 2012, that he had to store his firearms in his safe. He had no real reason as to why at least three of the firearms and ammunition found outside the safe, in a caravan, a shearing shed and a vehicle, had not been stored in the safe.

11. Since October 2012 he has updated himself on the law in relation to firearms and has completed a safe handling of firearms course. He is aware of his responsibilities in relation to the handling and storage of firearms and ammunition and the types of firearms that he may or may not have depending on any licence he holds. He is aware of the requirement for firearms to be registered. He has a legitimate need to have a firearms licence and to possess and use firearms to deal with feral animals and with the general running of his property.

12. Unlike his father he did not leave loaded firearms sitting around his residence. He kept them locked up. He acknowledged that there was one loaded firearm in his safe.

23. When asked why he did not apply for a licence when he knew it was wrong not to have one, the Applicant said in his affidavit that he did not appreciate the severity of the consequences enough. In oral evidence he said:

I knew I was breaking the law and it was in my mind a bit hard to go to the police because at the time or at the time and now I don’t really trust them and it was a bit hard to - for me to go and take them firearms in with me to have them registered and, and get a firearm licence.

24. When asked why he did not hand weapons in when firearms amnesties occurred the Applicant said that he was aware that there would be no repercussions against him however he “wanted to stay away”. I understand this to mean he wanted to stay away from contact with the police.

25. In reply to a question asked by Mr Zoppo, the Applicant said that he was aware of some of the changes of the law in 1996 in respect of firearms. He also said that out on his property he didn’t really keep up with changes in the law or the news.

26. I asked the Applicant why I should believe that if I ordered that a firearm licence be granted to him and it was granted and he obtained some registered firearms, he would do things differently to the way he had done for many years. His response was:

A. Well 2012 October the 23rd was a big jolt in my life and it’s pretty much pulled my act together. I don’t want that to happen again.

Q. When you say you don’t want that to happen again, do you mean you don’t want the police to visit you again or--

A. No I want them to come and see my firearm cabinet with my firearms locked up and I want to abide by the law.

Q. If you do get a licence are you aware that the police will be visiting you--

A. Yes.

Q. --with some frequency to inspect and see what’s going on?

A. Yes.

Q. That doesn’t trouble you?

A. No.

27. Mr Kennedy’s closing submissions included:

Mr Sisson’s attitude prior to 2012, 23 October, was laissez‑faire in relation to firearms. I wouldn’t submit he was entirely negligent, he’s never been involved in an incident involving firearms…

I would say he’s a simple man but I would submit that he’s an honest man and despite that he has been raised around firearms his entire life, there doesn’t appear to be any incidents involving him and firearms. He understands fully now… his requirements under the Act, he did…attend the safe use of firearms course at Inverell last year before Christmas with…an accredited person under the Act to give such training and so his knowledge in relation to all the aspects which are required of him in relation to firearms have been reinforced once again by that. They’ve been reinforced first by 23 October incident and post that incident and then by him having to prepare to come here to the tribunal today and he’s under no illusion whatsoever as to what his requirements are.

… As I say he understands…it’s not a right that he has to have a firearm, it’s a privilege and that the court must be satisfied that he is a fit and proper person who can be entrusted by society to do the right thing, for want of a better word, in relation to all aspects of the firearms legislation. I think your Honour could see that in the witness box, he was forthright and honest and open, I don’t think he tried to shy away from any question. …

…and he understands the police are going to come out and they can conduct checks in two ways, they can ring up and say we’re coming out to check on your farm but probably in Mr Sisson’s case they would do a random check which they’re fully entitled to do under the legislation to come out and make sure that he’s adhering to all aspects of the firearms legislation. He does have a proper gun safe at his premises already, Detective Wilcox gave evidence that it was a proper gun safe and he has the proper storage facility for firearms to be stored on his property in a safe and secure manner and he understands that the police are going to come out and probably more so than anybody else…if he was permitted to have a shooter’s permit that they would focus on him specifically for a while, I would submit, and that he would be under no illusion that that would occur and that he understands that if he’s going to have the privilege to have a shooter’s licence and be allowed to have firearms…legally, that he is going to have to abide by all aspects of the legislation, and I would submit he is a person that this court could take faith and the public could take faith that he would adhere…

28. Mr Zoppo’s closing submissions included:

…I don’t think that the applicant can really be proud of his track record. He has come to this court today and effectively admitted that for a period of at least since 1996 deliberately, wilfully failed to comply with his obligations both in terms of licensing, both in terms of safe storage and in terms of ensuring safety to the occupants of his house. Mr Sisson has been aware of his requirement for a licence, he has chosen not to go down that path, not entirely clear why, but I think it could be open for you to conclude that Mr Sisson places very little importance and certainly before he got detected by the police, very little importance on the requirements to abide by the law.

He lives in a remote area where contact with the police is minimal. I submit that you could conclude with a great deal of confidence that had the police not attended Mr Sisson’s address in 2012, that Mr Sisson would continue to possess, use the firearms, the prohibited weapons that he has without a licence. There’s nothing that would suggest that he would otherwise have bothered to get the licence and…every one of those firearms that Mr Sisson has are not registered. The whole system of firearms licensing is about not only ensuring appropriate people are licensed but also to ensure that there is an integrated system where firearms can be registered and tracked. None of these firearms have been registered because Mr Sisson hasn’t bothered to do that and probably from my perspective the most troubling aspect of this case is the safe storage aspect.

He has a number of young children living in a caravan. You will see from…the statement of Detective Wilcox all he had to do was push open a door that was opened to…detect those firearms that were at ground level in the caravan. In vehicles that were open there was ammunition. In the shearing shed there was a large amount of ammunition even when Mr Sisson went to the trouble of getting a firearm safe. So there is a safe there, he’s chosen not to use it…. They’re troubling aspects of all of this and another troubling aspect is…the public interest.…

…Mr Sisson has broken the Firearms Act since at least 1996. He has possessed and used firearms without regard to the requirements. He has, even though he’s aware of the requirements either in a general sense, he has decided that he wouldn’t comply. He hasn’t given you any reason why he decided, he didn’t say he couldn’t afford it or there was some other thing other than to suggest that perhaps he doesn’t trust police, and that’s another issue that causes the commissioner some concern, the police are the regulator in this whole regulated scheme.

With respect to the applicant I don’t think there is evidence…that would satisfy you on balance that the applicant is in fact fit and proper…

The tribunal will gain little benefit or weight from - or evidence supporting this applicant’s decision by looking at other cases because each individual case has to be determined on its merits, each individual case has to be looked at in the context of all of the circumstances and even if the circumstances were similar, it’s not like parity in sentencing where you say the same circumstances you should get the same result. The circumstances of other matters are really not, in my submission, directly relevant to the matter.

Fit and proper

29. In RS the Respondent submitted:

39. The issue of whether a person is fit and proper to hold a licence has been considered in numerous cases before the Courts and the Tribunal.

40.   In Hughes and Vale Pty Ltd3 the High Court stated that:

The expression 'fit and proper person' is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty knowledge and ability. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.

41.   The High Court in Australian Broadcasting Tribunal v Bond4 held 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.

42.   In Sobey v Commercial and Private Agents Board5 provided areasonable summary of the law:

"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."6

43.   In FD v Commissioner of Police, New South Wales Police7, Judicial Member Molony said:

[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.

44.   In order for the Tribunal to be satisfied that the Applicant is a fit and proper person the applicant must demonstrate qualities that wouldallow the Tribunal and the public to have confidence in his honesty,knowledge and capacity in relation to these licences.

45. What is clear from the evidence that the Commissioner intends to rely on is that for a number of years the applicant chose not to comply with the strict requirements imposed under the Act.

….

47. The conduct of the applicant over a long period of time, falls well short of conduct that you would expect of a fit and proper person in the context of the strict firearms licensing regime, the principles and objectives of the Act.

48.   It is clear to the Commissioner that the conduct of the applicant would have continued to date had the police not discovered the firearms and ammunition that he held.

30. There is no doubt, indeed it is conceded by the Applicant, that for some years prior to October 2012 the Applicant acted in breach of firearms legislation in several respects including possession and use of unregistered and in some cases prohibited firearms and possession of ammunition without a licence. It is also admitted that as at 23 October 2012 the Applicant failed to store some of his firearms and some of his ammunition in accordance with firearms legislation. These facts may well indicate that as at 23 October 2012 the Commissioner could not have been satisfied that the Applicant was a fit and proper person who could be trusted to have possession of firearms without danger to public safety or to the peace (s 11 (3) (a)).

31. On this issue the question with which the Tribunal is concerned is whether the tribute or can be satisfied at the date of the hearing that the Applicant is now a fit and proper person for the purpose of having possession of firearms.

32. The Respondent submits that the Applicant has broken the Firearms Act since at least 1996 and has possessed and used firearms without regard to legal requirements. He has decided that he would not comply with the requirements of which he was aware in a general sense. His course of conduct over many years is wilful with a disregard of strict legal requirements. His actions are not those of a fit and proper person who should receive something that is described as a privilege. If his illegal conduct had not been discovered it would have continued. Except for a technical issue in relation to the admissibility of evidence he would have been convicted of firearms and drug offences and pursuant to s 11 (5) (b), a licence could not have been issued to him for 10 years after the date of his conviction.

33. On the Applicant’s behalf it is submitted that:

1. other than in respect of the matters which arose from the events of 23 October 2012 and a traffic offence in respect of which he received a s 10 bond in 2001, he has never come to the attention of the police.

2. The Applicant has, on his unchallenged evidence, used firearms almost continuously for nearly 30 years without an adverse incident. His upbringing was such that he was introduced to and brought up with firearms prior to the introduction of the current legislative regime and, while he was aware that that legislative regime had changed, his unexplained, but in my opinion, honestly held, fear or distrust of the police caused him to disregard legislative changes while taking into account what he regarded, from his own training and experience, as appropriate safeguards in relation to the use, maintenance and storage of firearms and ammunition.

3. The Applicant has been severely punished both in relation to the seizure of firearms he, and family members, had owned for many years leading to his inability to properly work his land. He has incurred substantial expenses in defending himself in the District Court proceedings and in these administrative proceedings. The risk of the Applicant not complying with the Act in the future is sufficiently minimised due to the rehabilitative effect of this punishment. The Applicant has learned that there are severe consequences for failing to abide by the legal firearms regime and his legal responsibilities.

4. He has never been convicted of any criminal offence and has never been the subject of an AVO or Firearms Prohibition Order due to mental illness. Although having been seriously injured in the pursuit of his productive role in society, he is not incapable due to physical infirmity or disease or disability nor is he subject to a good behaviour bond.

5. The possession of firearms in October 2012 was not in the context of the furtherance of any illegal activity. The firearms were used primarily for the destruction of vermin, and for animal husbandry when required.

6. During the Applicant’s formative years, the manner in which the firearms at Sunray were kept and found in 2012 would have been considered nothing out of the ordinary and certainly not a matter for the police. There were small children about, so the firearms were kept out of sight, unloaded, the ammunition separate and out of reach. The possession of a gun safe shows that the Applicant was mindful of trying to do the right thing in satisfying safety requirements.

7. His offending can be contributed to nonfeasance rather than malfeasance. His personal inertia, increasingly compounded by the passage of time brought him to a situation whereby he was fearful of approaching the authorities to rectify the position.

34. I observe that Mr Zoppo has, quite appropriately, drawn the attention of the Tribunal to actions of the Applicant over many years leading up to October 2012. Mr Zoppo has said that from 2001 the Applicant had a certain awareness of legal requirements in relation to firearms. Reference has been made to an application signed by the Applicant for a firearms licence in 2001. However, no evidence has been produced to indicate that, although the Applicant had signed an application form, he had at that time undertaken, let alone completed an approved firearms safety training course, which was a prerequisite to the issuing of a firearms licence in 2001. Indeed, the question as to what formal firearms safety training the Applicant had received in or around 2001 was not put to him.

35. The Applicant is not a sophisticated man and does not appear to be well read. There is no clear evidence as to the level of his understanding of the detailed legal requirements in relation to firearm safety prior to his attendance and completion of a safety training course in December 2014. Indeed, it may well be that the gun safe which the Applicant had constructed and used for the storage of firearms and ammunition up to October 2012 not only complied with relevant legislation but may have substantially exceeded any legal requirements. The attention of the Tribunal was not drawn to this particular issue.

36. At [13] the Respondent submitted that pursuant to s 11 (4):

a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant’s way of living or domestic circumstances

37. Mr Zoppo conceded that the Commissioner had no evidence in relation to the Applicant’s way of living or domestic circumstances after October 2012, that is for a period of nearly 3 years preceding the hearing before the Tribunal.

38. The Respondent submitted at [14] that a licence must not be issued to a person who has been convicted of a prescribed offence whether within or outside New South Wales within the period of 10 years before the application for the licence was made. That submission is correct as a matter of law pursuant to s 11(5)(b) and indicates the importance placed by the legislature on the strict regulation of firearms possession and use. However, Mr Zoppo has conceded that there is no evidence of any conviction of the Applicant for any criminal offence at any time.

39. Wilkinson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 59, which is relied on by the Respondent, related to a person whose firearms licence had been revoked. In the course of setting aside the revocation, Hennessy DP held that the only matter which could provide a basis for submitting that Mr Wilkinson was not a fit and proper person to have a firearms licence was due to an illness from which he no longer suffered. Hennessy DP held that Mr Wilkinson had recovered from the illness and it could not be said that he was no longer a fit and proper person to hold a licence.

40. Pantle v Commissioner of Police, New South Wales Police Service [2001] NSWADT 207, involved an application to review a decision of the Commissioner not to grant Mr Pantle a firearms licence. The Commissioner had relied on the fact that Mr Pantle was found guilty, with no conviction recorded, of possession of a prohibited plant in 1994 and he made a false report to police, in relation to a shooting on a property, that his pistol had been stolen from his car. Subsequently when being interviewed by police in relation to another matter Mr Pantle admitted to making a false report to police. In October 1997 the Commissioner revoked Mr Pantle’s target pistol licence and shooters licence. He applied for a category AB licence in May 2001 and the Commissioner’s refusal to issue that licence was the subject of the proceedings in the ADT.

41. In the reasons for setting aside the Commissioner’s decision the Tribunal referred to the excerpt from ABC v Bond to which the Respondent referred at [41] and observed that Mr Pantle had engaged in conduct which even by his own admissions could amount to breaches of several provisions of the Act and a conviction for those offences would have meant that he would have been refused a licence on mandatory grounds for 10 years. The Tribunal found that Mr Pantle was remorseful about his behaviour and it was five years since the false report to police occurred. Apart from his conduct in relation to the pistol he was a person of good character. The Tribunal found in 2001 that fact that Mr Pantle was found not to be a fit and proper person to hold a licence in October 1997 did not mean that he could never again be issued with a firearms licence.

42. In Pantle’s case the Tribunal referred to High Court, New South Wales Supreme Court, South Australian Supreme Court and New South Wales Court of Appeal decisions in relation to legal professional misconduct matters in which the courts left open the possibility that at some later time practitioners would be able to persuade the court that they were again fit persons to be admitted as legal practitioners.

43. I accept that the Applicant has received what he called a “jolt” as a result of the events of October 2012. He has suffered financial loss and the evidence is that he is continuing to suffer from a restricted ability to operate his property.

44. The Applicant has shown that he is well aware that if a firearms licence is granted to him he will be subject to visits from the police inspecting his firearms and ammunition and his compliance with storage and other requirements of the Act and that it is likely that such inspections will be unannounced.

45. There is unchallenged evidence that in nearly 30 years of using firearms with some frequency the Applicant has not been involved in any incidents whereby any person has been injured.

46. I am satisfied that, as a result of that “jolt”, the safety training he has undergone and the importance to him of being able to operate his property including with the use of appropriate firearms he years, his experience in the use and maintenance of firearms, his experience in both the District Court and these proceedings, as at the date of the hearing 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 pursuant to s 11 (3) (i).

Public interest and private interest

47. The Respondent’s submissions in RS included:

49.   A discussion of relevant case law with respect to public interest was set out by the Tribunal in the case of Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 at paragraph 69:

69 The Applicant’s individual interest in retaining his licence must be subordinate to the public interest in ensuring public safety. This position is supported by the decision of Comalco Aluminium (Bell Bay) Ltd v O’Connor and Others (1995) 131 ALR 657 where it was stated at 681:

“The purpose of the reference to ‘public interest is to ensure that private interests are not 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.”

70 In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at paragraph [25], the Appeal Panel said that the ‘public interest’ “is an inherently broad concept giving [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual”.

71 There is discretion with respect to whether to revoke the licence in this case. The Tribunal has previously found that any discretion must be exercised to promote the objects of the firearm legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and the discretion is to be exercised in clear preference to the public interest than an individual’s private interests. That view has been followed in numerous decisions and I agree that it is the correct approach to be taken in this matter.

71 In Wilkinson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 59 Deputy President Hennessy stated at paragraph [25]:

25 As the Firearms Act does not list factors which a decision maker must take into account when exercising a discretion about revocation, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act. …

73 A firearm licence is a privilege and not a right. 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, New South Wales Police [2005] NSWADT 75 at paragraph [25].

74 The underlying principles of the Act stated in section 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at paragraph 28, Deputy President Hennessy said that in terms of public safety“, "the Tribunal must be satisfied that there is virtually no risk".

50 Firearms possession and use is a privilege and not a right and the Tribunal cannot be satisfied on the evidence that it is in the public interest for the applicant who has for many years chosen not to comply with the Act to be afforded this privilege.

51   It is open to the Tribunal to conclude that the applicant would have continued to unlawfully possess and use firearms had the police not observed the firearms that were openly visible on their attendance in October 2012.

48. I observe that in Constantin v Commissioner of Police [2013] NSWADTAP 16 the ADT's Appeal Panel said at [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.

49. One of the main issues to be dealt with by the Tribunal when considering the public interest is that of public safety. As Hennessy DP said at [28] in the often quoted decision in Ward v Commissioner of Police [2000] NSWADT 28, the Tribunal must be satisfied that there is “virtually no risk” to public safety if the Applicant is given access to firearms.

50. The submissions on behalf of the Applicant were that he had and continues to have a lawful need for a firearms licence. This is based on his status as a primary producer and the evidence is that proximity of the rural property on which he grazes cattle and sheep to a large nature reserve means that he continues to have a need to destroy feral animals to ensure his property’s productivity. However, it is undisputed that the public interest must take priority over private interests.

51. I also have regard to the principles outlined in Wiltshire referred to by the Respondent.

52. I am satisfied that having regard to the unchallenged evidence as to the lengthy experience of the Applicant with firearms, the understanding he now has as to both the legal requirements of firearms legislation and the personal importance to him of complying with that legislation that there is virtually no risk to public safety if the Applicant is given access to the categories of firearms for which he applied.

53. Mr Zoppo submitted that the public interest goes beyond the test in Ward and referred to the importance of maintaining the integrity of the licensing regime. I accept that submission.

54. However, having conceded that the Commissioner had no evidence of an adverse nature concerning the Applicant or his activities since October 2012 and after conceding that the Applicant had no criminal convictions and nothing else that appeared to be adverse in the context, Mr Zoppo submitted orally:

.. there must be a significant public interest in the decision of the commissioner being affirmed because the message that Mr Sisson having his licence reinstated (sic) to everyone else in this community, well it would send a very very poor message, it would send a message that well you can do nothing, if you get caught you can come to court or the tribunal and you’ll get your licence back, wait a couple of years.

55. I do not accept this floodgates submission as it does not take into account the fact that if someone was “caught”, charged and convicted of a prescribed offence they would be subject to the mandatory 10-year prohibition on obtaining a licence.

56. Mr Zoppo submitted that I could conclude with a great deal of confidence that had the police not attended Sunray in 2012 the Applicant would have continued to possess and use the firearms and prohibited weapons he had without a licence. I accept this submission to a certain extent. However, the facts are:

1. the police did attend Sunray and seize firearms, ammunition and some prohibited plants;

2. the Applicant was charged with certain offences but not convicted;

3. he has not been able to personally use firearms in the operation of his property for some three years;

4. he has incurred what may well be substantial expenses;

5. he has undergone formal firearm safety training;

6. he has been exposed to criminal proceedings in the District Court and proceedings before this Tribunal; and

7. he is aware that it is highly likely that if he is granted a licence he will be subject to unannounced police visits to his home and if he is found to have failed to comply with all relevant legal obligations is likely to be charged, and if convicted will be subject to a mandatory 10-year period in which he could not obtain a licence.

57. Having had the opportunity to observe the Applicant as a witness, in my opinion these events over the last three years have resulted in a man who is not the same person he was on 23 October 2012.

Decision

Having regard to my above findings the correct and preferable decision of the Tribunal is that the Commissioner’s decision under review is set aside and in substitution thereof a decision that the Applicant be issued a category A, B, C licence.

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

Registrar

**********

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

Amendments

24 June 2016 - Notation added to alert readers to orders made by the Appeal Panel

Decision last updated: 24 June 2016