Smith v Commissioner of Police, NSW Police Force

[2024] NSWCATAD 182

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Smith v Commissioner of Police, NSW Police Force [2024] NSWCATAD 182

Hearing dates:

17 – 18 June 2024

Date of orders:

4 July 2024

Decision date:

04 July 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Robinson, Senior Member

Decision:

(1) The decision under review is affirmed.

(2) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 other than to the Tribunal, the Respondent and the Respondent’s legal representatives, publication, disclosure or broadcast of:

(a) the contents of the exhibit received in evidence by the Tribunal on 18 June 2024 is prohibited.

(b) any part of the evidence given before the Tribunal and submissions made to the Tribunal at the confidential hearing on 18 June 2024, including all recordings, whether written, electronic or aural of that hearing is prohibited.

Catchwords:

ADMINISTRATIVE REVIEW - firearms – refusal of licence – fit and proper person - public interest – public safety

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Evidence Act 1995

Firearms Act 1996

Cases Cited:

AJO v Director-General of Transport [2012] NSWADT 101

Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 32

Briginshaw v Briginshaw (1938) 60 CLR 316

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

Commissioner of Police, New South Wales Police Force v EMB [2021] NSWCATAP 63

Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234

Constantin v Commissioner of Police [2013] NSWADTAP 16

Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134

Director-General Ministry of Transport v FV (GD) [2008] NSWADTAP 60

Ford v Commissioner of Police [2022] NSWCATAD 87

Grenfell v Commissioner of Police [2021] NSWCATAD 124

Hariri v Commissioner of Police [2022] NSWCATAD 5

Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127

Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 368

Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276

Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41

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

Potts v Commissioner of Police, NSW Police Service [2010] NSWADT 311

see Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41

Smith v Commissioner of Police, NSW Police Force [2014] NSWCATAD 184

Sobey v Commercial and Private Agents Board (1979) 22 SASR 70

Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156

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

Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93

Ward v Commissioner of Police [2000] NSWADT 28

YG and GG v Minister for Community Services [2002] NSWCA 247

Texts Cited:

None Cited

Category:

Principal judgment

Parties:

Michael Kenneth Smith (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Counsel:
Lowe T (Applicant)
Watts M (Respondent)

Solicitors:
McDonald Law (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2023/000335615

Publication restriction:

Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 other than to the Tribunal, the Respondent and the Respondent’s legal representatives, publication, disclosure or broadcast of:
(a) the contents of the exhibit received in evidence by the Tribunal on 18 June 2024 is prohibited; and
(b) any part of the evidence given before the Tribunal and submissions made to the Tribunal at the confidential hearing on 18 June 2024, including all recordings, whether written, electronic or aural of that hearing is prohibited.

REASONS FOR DECISION

Background

1. Michael Kenneth Smith (the Applicant) applied to have his Category ABH firearms licence restored. His firearms licence was suspended in February 2022 due to concerns including mental health and domestic violence related issues.

2. The Commissioner of Police (the Respondent) refused the Applicant’s application for renewal of his firearms licence on 18 August 2023 because the Respondent was not satisfied it would be in the public interest to grant the licence. The Respondent conducted an internal review of the decision at the Applicant’s request and on 12 October 2023 the Respondent affirmed the decision.

3. The Applicant seeks review of the decision to refuse him a personal firearms licence.

Material before the Tribunal

Open material

4. The Applicant’s application for review attaching the internal review decision was before the Tribunal. The Applicant provided three written statements as well as six references, two psychological reports, a statement of a serving NSW police officer, an email from another serving NSW police officer and written submissions. At the hearing on 17 June 2024 the Applicant gave evidence and was cross examined.

5. The Respondent provided a bundle of documents under s 58 of the Civil and Administrative Tribunal Act 2013 (the CAT Act), a USB drive containing body worn video footage, a statement of a senior serving NSW police officer, Chief Inspector Hill, as well as written submissions. At the hearing on 17 and 18 June the Chief Inspector Hill gave evidence and was cross examined.

6. Both parties made oral submissions at the hearing and two letters of instruction to the author of the psychological reports were provided to the Tribunal.

Confidential material

7. The Tribunal was also provided with a statement on a confidential basis. 

8. On 31 January 2024 the Tribunal made orders under s 64 of the CAT Act prohibiting publication, broadcast or disclosure of the confidential material and foreshadowed a closed hearing. A closed hearing was held on 18 June 2024 and an order was made under s64(1)(b) of the CAT Act that any part of the evidence given before the Tribunal and submissions made to the Tribunal at the confidential hearing on 18 June 2024, including all recordings, whether written, electronic or aural of that hearing is prohibited.

9. The confidential statement and submissions at the closed hearing will be referred to as ‘the confidential material’.

Applicant’s case

10. The Applicant contends he should be granted a firearms licence on the basis he is of good character and his domestic circumstances that caused issues of concern have resolved such that there is no contemporaneous risk to his former partner nor to public safety. The Applicant, a serving NSW police officer, submits the decision in this review may impact whether his police firearm is returned to him for his work.

Respondent’s case

11. The Respondent contends the correct and preferable decision is to refuse the firearms licence application on the basis granting a licence would not be in the public interest under s 11(7) of the Firearms Act 1996 (the Firearms Act), and that the Applicant is not a fit and proper person to hold a firearms licence (see s 11(3)(a) of the Firearms Act).

Role of the Tribunal

Jurisdiction

12. The Tribunal has jurisdiction to review an administratively reviewable decision: s 55 of the Administrative Decisions Review Act 1997 (the ADR Act). Section 75 of the Firearms Act provides that applications may be made to the Tribunal for administrative review of a decision to refuse a firearms licence. The Tribunal has jurisdiction to hear and determine this application for review.

Administrative Review

13. When considering an application for review the Tribunal is to decide what is the correct and preferable decision having regard to the material before it (s 63(1) of the ADR Act). In doing so the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) of the ADR Act). The time at which the correct and preferable decision is determined is when the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].

14. The Tribunal is required to base its findings of fact on logically probative material: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62 and 68; and Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 at [5]-[8], [15]-[17]. The standard of proof applying in this review is the balance of probabilities. These is no burden or onus of proof on either party: see Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28]-[34]. The standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89]-[91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10]-[12]. However, they provide guidance for the Tribunal’s exercise of jurisdiction, especially in relation to the character issues for consideration in this review.

Relevant Legislation

15. The underlying principles of the Firearms Act are set out in s 3 and 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…

16. Section 11 of the Firearms Act allows the Respondent to issue or refuse a firearms licence application relevantly providing:

(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

….

(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.

Consideration

Confidential material

17. The confidential material does not assist the Tribunal further to what is contained in the open material before the Tribunal. Given the Applicant has no opportunity to consider the confidential material or make submissions about it, the Tribunal gives no weight to the confidential material in this review.

Applicant’s history

18. The Applicant is a serving NSW police officer with over 14 years’ experience. He also has experience as a corrections officer for a short period and he was a member of the Australian Defence Force between 1993 – 2007. The Applicant has a long professional experience of dealing with firearms.

19. The Applicant held a Category AB firearms licence from 2008 for the purposes of recreational hunting/vermin control. A licence was extended to Category H for sport/target shooting in 2011. The Applicant’s Category ABH licence was suspended briefly in 2021 due to mental health concerns following his attendance at a traumatic workplace event which resolved.

20. While the Applicant has been the recipient of several awards and formal recognition in his work for the NSW Police Force, in 2020 the Applicant received a warning notice from his employer due to a finding of misconduct for falsifying official records.

Previous domestic circumstances

21. In 2022 the Applicant’s relationship broke down. He had a number of disputes with his former partner during the breakdown in their relationship including in relation to property and behaviour where both parties made reports to police.

22. In January 2022 the Applicant’s personal firearms were seized by police as a result of a domestic incident.

23. In February 2022 photographs and text messages between the Applicant and his former partner during July 2020 came to the attention of the Respondent. A chain of communication between the Applicant and his former partner on 22 July 2020 (the text message and photograph chain) began in the morning. Of particular relevance is:

1. at 10.06 am the Applicant sent a picture of his personal firearm;

2. at 4pm the Applicant sent a picture of ammunition (specifically two bullets in a case) following the words “You made this”;

3. the Applicant called his former partner six times between 3.32pm - 3.39pm while she was at work;

4. at 4.11pm the Applicant sent a picture of himself holding his personal firearm pointed at his head; and

5. at 6.25pm the Applicant sent a text message: “…I spent all day in the garage crying…ok I got that bad I just wanted to end it all”

24. On 7 February 2022 as a result of a further domestic incident the Applicant’s work firearm was removed and has not been returned. On 9 February 2022 the Applicant’s personal firearms licence was suspended. The Applicant later surrendered his personal firearms licence. Provisional Apprehended Violence Order (PAVO) proceedings against the Applicant were initiated on 10 February 2022 and discontinued in September 2022.

25. In May 2022 a further domestic incident occurred where, while the Applicant was driving, the right hand side of the Applicant’s car hit a tree on the left hand side of the driveway on the property he shared with his former partner.

Impact and relevance of employment and work firearms access

26. The Applicant submits he is in a circular situation because the firearms registry took into account the Applicant’s lack of access to his work firearm as a consideration in its decision to refuse him a personal firearms licence, while the Applicant is denied access to his work firearm because of the decision of the firearms registry about his personal firearms licence.

27. The evidence of Chief Inspector Hill on behalf of the Respondent is that the Applicant’s personal firearms licensing decision is one factor for consideration in the decision as to whether the Applicant should have his work firearm returned to him, but is not the only factor. If the Tribunal were to grant the Applicant a personal firearms licence, the police would not automatically return the Applicant’s work firearm, with a consequential first step being performance of a risk assessment.

28. The Applicant does not perform full operational duties as a police officer due to the removal of access to his work firearm. The majority of the Applicant’s current work is carried out in an office and when he leaves a police station to take statements or doorknock/canvas he is accompanied by another police officer who carries their full appointments including a firearm. The Applicant was the officer in charge of in arson investigation under those conditions.

29. The Applicant’s lack of access to a firearm at work is relevant in this review to the extent it may provide a further reason for the Applicant to want a personal firearms licence, a reason that is subordinate to considerations of public safety as discussed at [59] below.

30. The Tribunal also accepts the submission of the Applicant that his work with the NSW Police Force and the trust placed in him performing that work is a relevant consideration to assessment of the Applicant’s character for the purposes of this review and reflect favourably on him.

31. Otherwise the Applicant’s employer’s decision relating to his work circumstances and any resulting impact of the decision in this review is not a relevant consideration for the purposes of this review. The purpose of this review is solely to determine whether the correct and preferable decision in relation to the Applicant’s application under the Firearms Act for a personal firearms licence has been made.

References

32. The Applicant provided several character references speaking to his good character, honesty and community-mindedness. This includes from:

1. Mr Peter Brinkworth, a former Captain in the Australian Defence Force (ADF) who has known the Applicant for over 20 years. He states:

I understand Michael has had his firearms removed in the past, as he has dealt with some issues that date back to his operational service abroad and with previous aggrevations that have now been treated and dealt with. I would recommend whole heartedly, that Michael have his licence and firearms reinstated.

2. Mr Jason Steinke who has known the Applicant for over 10 years and speaks to the Applicant’s “excellent character”.

3. Warrant Officer David Joliffe who has known the Applicant for over 20 years and wrote on official ADF letterhead. He states:

For all the years I have known and worked with Michael I have never seen or heard of any issue with Firearm Safety, he has always been professional with weapons and been strict on any member not doing the right thing. We speak on a regular basis and I think he is in a good mental state and is not a danger to himself or the community and his years of training have instilled a culture of Safety in Michael that far exceeds your everyday member of the community.

4. Mr Dennis Eastman, President of the Hume Pistol Club who has known the Applicant since 2016 and speaks to the Applicant’s contribution to club events and to the Applicant’s safe handling of guns.

5. Nigel Webster, a member of the Sydney University Regiment who worked with the Applicant for five years. He states:

I understand that [the Applicant] has had his personal firearms removed as in the past there were issues arising from his operational service with the Australian Army and the New South Wales Police Service. It is my understanding these issues have been resolved by him seeking counselling. I am confident that [the Applicant] is a fit person to possess a New South Wales Firearms Licence and have access to firearms as a recreational shooter.

33. None of the letters from personal referees demonstrate they are aware of the full context of the Applicant’s relevant circumstances, for example they do not reference the text message and photograph chain or the Applicant’s relevant domestic circumstances. In those circumstances the references are of little assistance to the Tribunal in this review and will be given low weight: see Director-General Ministry of Transport v FV (GD) [2008] NSWADTAP 60 at [40].

Medical and psychological material

34. Mr Sam Borenstein, clinical psychologist, provided two reports (of 30 November 2023 and 6 April 2024) and a letter of instruction to Mr Borenstein for each report were before the Tribunal. Mr Borenstein conducted two interviews with the Applicant each of about 70 minutes before preparing each of the reports. Both reports refer to statements not listed in the letters of instruction. At the hearing Mr Borenstein was unable to confirm the material he had before him in preparing his reports. On that basis those reports can be given little weight because the Tribunal is unable to be certain of the basis on which Mr Borenstein provides his opinion: see Potts v Commissioner of Police, NSW Police Service [2010] NSWADT 311 at [44]-[51].

35. On 4 April 2022 the Applicant’s treating general practitioner provided a letter to the police which relevantly provides:

1) Diagnosis: anxiety/depression

2) Current treatment plan: r/v with psychologist every 2 to 3 weeks (Y. Hurtz), daily antidepressant (lexapro 20mg). Psychiatric review.

3) Further treatment options that could be explored: psychiatric assessment to further delineate his mental health diagnosis and prognosis.

4) Prognosis: uncertain. [the Applicant withheld information from myself and I believe his psychologist…as well. This information has been brought to my attention by… It contradicts the benign mental health state [the Applicant] portrayed to me. I have not had a chance to speak to [the Applicant] and discuss the recently revealed mental health evidence (self portrait of [the Applicant] holding a gun to his head).

5) Further support through NSW Police: psychiatric assessment.

6) Concerns about return to non-operational duties: mis-use of firearms.

7) Recommended restrictions: no return to any police duties until further psychiatric assessment.

8) Risk of exacerations upon return to duties: deterioration of his mental health resulting in mis-ise of firearms and potential injury to others.

…

36. The Applicant’s evidence is that he was not aware of this letter until served with the s58 bundle (exhibit R1) in these proceedings and has not at any stage had a formal diagnosis of a mental health condition.

37. Dr Bell a psychiatrist provided a report to the police dated 29 July 2022. It relevantly states:

…there was no evidence of mental illness…..with any PTSD symptoms from last year and from previous Defence Force operations now at baseline….

…..

there remains ongoing difficulties with anger management, self-identity, dependence and emotional dysregulation – all exacerbated with stress…

Recommendation

…in my opinion [the Applicant] can return to work, initially on Restricted Duties until court proceedings in mid September 2022. If there are no concerns at work and/or with the outcome of court, I see no reason why [the Applicant] would then not be medically fit to return to Full Operational Duties in accordance with his rank which includes access to his appointments.

38. The Applicant’s evidence was that he attended sessions with the same psychologist, Ms Hurst (who is referred to in the letter of 4 April 2022 extracted above) sporadically between 2018 and March 2022 which ended because she asked him “Why are you still coming to see me?” that he took to mean he did not require further treatment.

39. The Applicant’s evidence was that he decided for himself to stop his medication for mental illness symptoms without medical supervision around March 2022.

40. Beyond the reports of Mr Borenstein and material in the s 58 bundle discussed above, the Applicant did not provide the Tribunal with any material from the Applicant’s current or former treating medical practitioners. The Tribunal infers that further evidence from the relevant practitioners such as the Applicant’s treating psychologist from 2018 would not have assisted the Applicant, particularly given the Applicant’s evidence is that he was not candid with his treating medical practitioners and did not disclose the text message and photograph chain to any treating practitioner because he was embarrassed.

Assessment of evidence from the Applicant

41. It is difficult to reconcile the Applicant’s oral evidence that he has been inactive in the Army Reserve since mid 2023 because it was time for him to take a break after 30 years, with his affidavit evidence sworn in February 2024 where the Applicant describes himself as a current member of the ADF Army Reserve and describes his ‘current duties’ at the Army museum in Bandiana. The only conclusion the Tribunal can draw from this inconsistency is the information the Applicant provided to the Tribunal and firearms registry in writing on this issue is incorrect and is likely false.

42. On the material before the Tribunal, it is objectively apparent that the Applicant, in communication to the firearms registry of the Respondent and in his affidavit evidence, sought to use his Army reservist position and experience, inferring access to live firearms, as a reason to support the return of his personal firearms (p 202 exhibit R1, [6] p 4 exhibit A2). Instead, the evidence is the Applicant’s reservist work involved supporting a museum where he was only very rarely given access to the armoury and his contact with firearms in that role involved no contact with live firearms, describing only one occasion of stocktaking/cataloguing and transfer of firearms without ammunition in addition to being present at public displays of weapons that would obviously not be live. Further, representatives of the ADF had assured the Respondent that the Applicant did not have access to live firearms (p 37-42 exhibit R3).

43. The Applicant submitted to the firearms registry in writing that he wanted his personal firearms for recreation as a way to interact with his family and friends. He described his children as “avid shooters” although under cross examination he conceded one of his children does not hold a firearms licence.

44. In the licence application for renewal of July 2023, the Applicant failed to list historical convictions from another jurisdiction. While the Tribunal accepts the evidence of the Applicant this was a mistake because the Applicant forgot about the offences, the omission reflects negatively on the Applicant given his current employment and circumstances. A serving police officer should understand better than most what a criminal history is and the record, albeit a long time ago in another jurisdiction should be disclosed in matters such as these.

45. The Applicant’s affidavit of 24 February 2024 addressed his good record as a student police officer but did not mention any later disciplinary matters occurring while the Applicant was a serving NSW police officer.

46. Further, Mr Borenstein’s evidence is that the photographs sent to the Applicant’s former partner in 2020 were only discussed during his second interview with the Applicant and not during the first interview, whereas the Applicant’s evidence was that the photographs were discussed at both interviews. The Tribunal prefers the evidence of Dr Borenstein as an objective witness on this issue.

47. As demonstrated in the consideration set out above (from [41] and following), in trying to put himself in the best possible light, the Applicant has crossed a line into embellishment and falsehood which negatively impacts assessment of his character and integrity and therefore the issues for consideration by the Tribunal in this review.

48. Further, while taking into consideration the Applicant’s submissions about the length and intensity of the Applicant’s cross examination and stress the Applicant was under, the Tribunal observed the Applicant’s demeanour in giving oral evidence to be opaque and evasive, lacking openness and candour. For example, when asked about the photograph described above (at [23(2)]) instead of agreeing it was a photograph of ammunition, as he was invited to, the Applicant described the photograph as “two pieces of brass in a plastic case”. Therefore, the Tribunal is unable to rely on the Applicant’s evidence alone to establish facts in this review and is unable to rely on the Applicant as a witness of credit.

Consequential and further findings

Self harm

49. While the collision with a tree incident outlined above (at [25]) could potentially be of concern the Tribunal is not satisfied this was an incident of attempted self harm by the Applicant, as submitted by the Respondent, and will give the incident no weight in this review.

50. The Applicant’s evidence is that in the text message and photograph chain he was sending a cry for help to his former partner, was asking her to visit him, wanted to end the relationship not his life though the use of the words he wanted to “end it all” and that he would never commit suicide.

51. Objectively, it would be incongruous to be declare love in a chain of text messages and send a photograph of a gun pointed to a person’s own head yet take an interpretation that the words “end it all” within the chain meant the Applicant wanted the relationship to end.

52. Considering the chain of text messages and photographs in context the Tribunal is therefore satisfied the Applicant intended to threaten self harm even if he may not have intended to follow through with an action to do so.

53. It follows, however, the Tribunal is not satisfied on the material before it that the Applicant has attempted self harm within the scope of s 11(4)(b) of the Firearms Act.

Mental illness and PTSD references

54. On the material before the Tribunal there is a great deal of ambiguity regarding the Applicant’s mental health history and his recent state of mental health. While the Applicant may not have been aware of the letter of 4 April 2022 from his treating medical practitioner, it details a mental health diagnosis and outlines recommended treatment and steps that have not since occurred. It also confirms the Applicant’s evidence that had had not fully informed his treating practitioners of relevant information.

55. While the Applicant denies ever having PTSD, the Applicant’s evidence makes reference to previous PSTD issues, as do notes from medical practitioners and some of the letters of reference. As noted above, the Applicant’s evidence was that he decided for himself to stop his medication for mental illness symptoms without medical supervision and has stopped attending his treating psychologist.

56. As a result, on the material before it the Tribunal cannot be satisfied there has been complete resolution of the Applicant’s mental health issues.

Former domestic circumstances and PAVO proceedings

57. The material before the Tribunal included a statement from a serving NSW police officer regarding an interaction in a shopping centre carpark involving the Applicant and his former partner. The statement considers that the Applicant’s former partner may have been confused about the date and time of the incident and that the Applicant’s former partner was incorrect about the nature of the interaction on that particular day. The Applicant in evidence said his former partner was a liar and in submissions the Applicant submitted his former partner provided information that was false.

58. Given the Tribunal’s findings regarding the Applicant’s evidence, and on the material before the Tribunal, the Tribunal cannot be satisfied the Applicant’s former partner lied in respect of the PAVO proceedings, or be satisfied of the basis on which the PAVO against proceedings ended. Further, the Tribunal can also not be satisfied the nature of the relationship between the Applicant and his former partner was one where, as the Applicant contends, the Applicant was a victim of domestic abuse.

Public safety and risk

59. Under the Firearms Act, public safety is the primary consideration: Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134. The interest of an applicant in obtaining a firearms licence is subordinate to that consideration: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276.

60. In Ward v Commissioner of Police [2000] NSWADT 28 Deputy President Hennessy said (at [27] - [28]):

…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.

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.

This risk consideration applies to both the fit and proper person and public interest test: Martin at [69].

Is the Applicant a fit and proper person to hold a licence?

61. The expression ‘fit and proper’ has often been considered by this Tribunal and in other jurisdictions. In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at pp 156-7 the High Court said:

The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very 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 ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.

62. Further, in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, the question was whether the holder of a commercial broadcasting licence under the Broadcasting Act 1942 (Cth) continued to be a "fit and proper person" to be the holder of such a licence. Toohey and Gaudron JJ discussed the meaning of the expression ‘fit and proper person’ (at p 380):

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.

63. Their Honours went on to say (at p 388):

The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.”

64. Mason CJ (with whom Brennan and Deane JJ agreed) stated that the concept “fit and proper person” should not be construed narrowly and stated at (pp 348-349):

Some indication of the breadth of the content of the concept may also be gathered from the fact that it is a purpose of the Act to ensure that commercial broadcasting is conducted in the interest of the public. A commercial broadcasting licence is a valuable privilege which confers on the licensee a capacity to influence public opinion and public values. For this reason, if for no other, a licensee has a responsibility to exercise the power conferred by the licence with due regard to proper standards of conduct and a responsibility not to abuse the privilege it enjoys.

65. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said (at p 76):

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 devolving 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.

66. Whether an applicant is a fit and proper person to hold to licence is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, NSW Police Force [2014] NSWCATAD 184; is to be determined by reference to ‘the activities in issue’: Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82]; and gauged in ‘light of the nature and purpose’ of those activities: AJO v Director-General of Transport [2012] NSWADT 101 at [26].

67. For firearms licences, the Tribunal is required to form “a positive state of satisfaction” that an applicant is a fit and proper person who can be trusted to possess firearms without danger to public safety or to the peace:  Commissioner of Police, New South Wales Police Force v EMB [2021] NSWCATAP 63 at [45] and (at [19]) the Tribunal noted:

The statutory regime under the Act is protective, not punitive. The test is directed towards maintaining and encouraging appropriate standards in the use of firearms.

68. In all the circumstances and on the material before the Tribunal, the Tribunal cannot be satisfied the Applicant is a fit and proper person under s 11(3)(a) of the Firearms Act who can be trusted to possess firearms without danger to public safety. This is particularly because of the Applicant’s past misuse of his personal firearms, as evidenced by the text message and photograph chain, irrespective of any potential justification for that misuse such as the domestic circumstances causing stress to the Applicant in 2020 and following which have ended, as well as the Tribunal’s findings above (at [47]-[47]) regarding the reliance the Tribunal can place on the Applicant’s evidence,

Is it in the public interest for the Applicant to hold a licence?

69. The term public interest is not defined in the Firearms Act. In Constantin v Commissioner of Police [2013] NSWADTAP 16 the Appeal Panel stated (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.

70. Further, the public interest considerations in s 11(7) of the Firearms Act can include an applicant's fitness or character that are mentioned separately in s 11(3)(a), see Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 368 (at [93]):

Such considerations may include an applicant's fitness or character if that is relevant to an assessment of the public interest (as it would usually be), notwithstanding that an applicant's fitness or character is a separate matter to be considered under s 11(3)(a).

71. Therefore the matters considered at [68] above are also relevant to the consideration of public interest.

72. The Tribunal may take into account the relevant history of the Applicant detailed above, including as the recipient of a PAVO, even if those proceedings were ultimately withdrawn: see Hariri v Commissioner of Police [2022] NSWCATAD 5 (at [59]-[60]) where the Tribunal stated:

As to the domestic violence allegations, in Grenfell v Commissioner of Police [2021] NSWCATAD 124 (Grenfell),the Tribunal recently stated at [31]:

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.

The Tribunal accepted that, in the context of the scheme under the Act, domestic violence incidents are a serious cause for concern, even where the alleged perpetrator is not convicted of an offence or where, as here, there is no misuse of a firearm; see [103]. In Grenfell, the Tribunal concluded, at [104] that it was not in the public interest for the Applicant to hold a firearms licence in circumstances where the Applicant was subject to a provisional AVO that was, as here, later withdrawn. It is immaterial that those matters did not give rise to any proven charges: see Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCAT 31 at [62]-[64].

73. In Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234, the Appeal Panel said (at [25]):

…it is uncontentious that a relevant consideration is the applicant’s previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant.

74. Further, even if as the Applicant submits he may no longer be a risk to his former partner, the Tribunal must consider the past conduct of the applicant as a significant guide: see Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141]; and is to look at the Applicant’s conduct as a whole, including potential future conduct with past conduct of the Applicant being a significant guide in assessing likely future conduct: see Ford v Commissioner of Police [2022] NSWCATAD 87 at [59].

75. It follows that considerations a PAVO was issued to the Applicant as well as that one of the domestic incidents detailed above involved misuse of a firearm, as evidenced by the text and photograph email chain, are relevant to assessment of risk. On those considerations alone the Tribunal cannot be satisfied the Applicant would not pose a risk to public safety if granted a personal firearms licence.

74. However, additionally, as set out above (at [54]-[56]), on the material before it, the Tribunal also cannot be satisfied the Applicant’s mental health issues have entirely resolved.

75. In all the circumstances and on the material before the Tribunal, the Tribunal cannot therefore be satisfied the Applicant would not pose a risk to public safety if he was granted a firearms licence.

76. Therefore it is not in the public interest under s 11(7) of the Act for the Applicant to hold a firearms licence.

77. It follows that the correct and preferable decision is to affirm the decision of the Respondent to refuse the Applicant’s application for a firearms licence.

Order

1. The decision under review is affirmed.

2. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 other than to the Tribunal, the Respondent and the Respondent’s legal representatives, publication, disclosure or broadcast of:

1. the contents of the exhibit received in evidence by the Tribunal on 18 June 2024 is prohibited.

2. any part of the evidence given before the Tribunal and submissions made to the Tribunal at the confidential hearing on 18 June 2024, including all recordings, whether written, electronic or aural of that hearing is prohibited.

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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

Decision last updated: 04 July 2024