Tighe v Commissioner of Police, NSW Police Force

[2025] NSWCATAD 145

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Tighe v Commissioner of Police, NSW Police Force [2025] NSWCATAD 145

Hearing dates:

6 June 2025

Date of orders:

19 June 2025

Decision date:

19 June 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

N Isenberg, Senior Member

Decision:

(1)   The decision under review is set aside and the Applicant is to be granted a category AB firearms licence, subject to the production of a signed and dated Permission to Shoot, satisfactory to the Firearms Registry.

(2)   The Applicant’s application for costs is dismissed.

(3) Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the transcript and recording of the confidential hearing in the proceeding on 6 June 2025 and the contents of all paragraphs in these Reasons marked ‘[NOT FOR PUBLICATION]’ are not to be published or released to the Applicant, or the public.

Catchwords:

LICENSING – firearms – Applicant’s judgment in having a OMCG member provide permission to shoot on his property – fit and proper person – public interest

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Firearms Act 1996 (NSW)

Cases Cited:

AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33

Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254

Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182

Commissioner of Police v EMB [2021] NSWCATAP 63

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16

Cory v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 32

Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50

DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219

GGW v Commissioner of Police, NSW Police Force [2024] NSWCATAP 88

Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218

Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127; [1955] HCA 28

Kocic v Commissioner of Police, NSW Police Force (2014) 88 NSWLR 159; [2014] NSWCA 368

Lee v Commissioner of Police [2020] NSWCATAD 144

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

McDonald v Director-General of Social Security (1984) 1 FCR 354

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

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

Petas v Commissioner of Police, NSW Police [2013] NSWADT 137

Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794

Re Percival and Australian Securities Commission (1993) 30 ALD 280

Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31

Sobey v Commercial Agents Board (1979) 22 SASR 70

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

Stankovic v Commissioner of Police, NSW Police Force [2025] NSWCATAD 72

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

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

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Jake Tighe (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Counsel:
C Mitchell (Respondent)

Solicitors:
Blue Rock Legal (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2024/00381888

Publication restriction:

Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the transcript and recording of the confidential hearing in the proceeding on 6 June 2025 and the contents of all paragraphs in these Reasons marked ‘[NOT FOR PUBLICATION]’ are not to be published or released to the Applicant, or the public.

REASONS FOR DECISION

1. On 10 July 2024 the Applicant, Jake Tighe, applied for a firearms licence, but his application was refused. That decision was affirmed on internal review and he now seeks review by this Tribunal.

Relevant legislation

2. The general principles of the Firearms Act 1996 (NSW) (the Act) are set out in s 3 of the Act:

3 Principles and objects of Act

(1) The underlying principles of this Act are—

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

(b) to improve public safety—

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

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

(c) to facilitate a national approach to the control of firearms.

(2) The objects of this Act are as follows—

(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

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

(c) 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,

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

(e) to ensure that firearms are stored and conveyed in a safe and secure manner,

(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

3. The Act, in setting out restrictions on the issue of licences, provides, relevantly at s 11:

11 General restrictions on issue of licences

…

(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.

…

Evidence

4. The Applicant provided two affidavits dated 11 April 2025 and 20 May 2025. He gave evidence and was cross-examined.

5. The Respondent provided material in accordance with s 58 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act), and later, an expert report by Detective Sergeant Bruce Groenewegen of the NSW Police Raptor Squad dated 29 April 2025. DS Groenewegen has, since 1996, specialised knowledge of Outlaw Motor Cycle Gangs (OMCGs).

6. The Respondent also relied on evidence produced during a confidential hearing. I do not propose to discuss in open Reasons any material that was presented on a confidential basis. Those parts of the Reasons that are not to be disclosed are identified as “[Not for publication]”, and Orders are made accordingly: s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act).

Tribunal’s approach

7. Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shiv Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31. The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [34].

Consideration

On what basis was the Applicant’s licence application refused?

8. In support of his application for a firearms licence the Applicant provided a Permission to Shoot from Stephen Edward James Cory (Stephen) dated 7 June 2024, giving the Applicant permission to hunt or shoot vermin on his property. Stephen, however, was a member of the Gladiators OMCG, becoming a full member in 2017 and remaining so until at least 2024, according to DS Groenewegen. Stephen had also been charged in 2017 with an offence under s 41(1) of the Act relating to a failure to comply with safe storage requirements, although the charge was dismissed without proceeding to conviction, pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Stephen’s firearms licence was revoked following the charge, and the Commissioner's decision to revoke his licence was upheld on review by this Tribunal: Cory v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 32. It should be observed that the Tribunal found Stephen to be a fit and proper person to hold a firearms licence, but affirmed the decision under review on public interest grounds.

9. The Applicant’s application was refused for the following reasons:

“Information maintained by the NSW Police Force indicates that you associate with persons whose conduct and frequent interactions with Police for serious offending behaviour, cause the Registry to be concerned that there would be an unmitigated risk to public safety if you were to have access to firearms. Our thorough background checks revealed connections to individuals with questionable backgrounds or affiliations, which raises concerns about the potential risks associated with granting you a firearm licence.”

10. The Applicant sought internal review. The review decision recorded that, while the Applicant had an unblemished criminal history and had only come to police attention on very few occasions, there remained concerns regarding a number of (unspecified) persons connected to him who were adversely known to Police.

11. Before me, the Respondent submitted that the Applicant is not a fit and proper person to hold a firearms licence nor is it in the public interest that he be granted the privilege of a firearms licence.

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

12. Section 11(3) of the Act requires that the Tribunal be 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.

13. The question whether a person is fit and proper is one of value judgment: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 388; [1990] HCA 33 per Toohey and Guadron JJ. The expression "fit and proper person", on its own, “carries no precise meaning” and “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”: per Toohey and Gaudron JJ at 380. See also Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127; [1955] HCA 28; Re Percival and Australian Securities Commission (1993) 30 ALD 280; Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794 at [41].

14. In Sobey v Commercial Agents Board (1979) 22 SASR 70 at 76, Walters J said, in relation to the licensing of commercial and private agents, that the expression means that an applicant must show that he or she “is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails”. In the context of firearms licensing, in Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at [22], JM Higgins stated that in determining the fitness and propriety of an applicant for a licence, s 11(3)(a) of the Act requires the decision-maker to have regard to an applicant's conduct and whether that conduct is such that the decision-maker can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace. The test is directed towards maintaining and encouraging appropriate standards in the use of firearms.

15. In Kocic v Commissioner of Police, NSW Police Force (2014) 88 NSWLR 159; [2014] NSWCA 368 at [1], the Court of Appeal (Basten JA, Leeming JA agreeing) described the power to grant a firearms licence as "tightly constrained" and observed that "significant emphasis is placed upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant". The Tribunal is required to form a positive state of satisfaction that an 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: Commissioner of Police v EMB [2021] NSWCATAP 63 at [45].

16. The Applicant gave evidence that he was born in Moree and lived there until he was about 7 years old when he moved with his mother to the Gold Coast. There he went to boarding school from which he graduated when he was 18. He then commenced a carpentry apprenticeship. In 2020, during COVID-19, he moved back to Moree because there was no work in the Brisbane area. For about 12 months he worked with his father, Trevor Tighe (Trevor), who had, and continues to operate, a contract spraying business. Then, for about 4 years he worked for Michael (Mick) Cory, who has a carpentry business in Moree. In about February 2024, he started his own carpentry business. In about January 2025 he decided, instead, to work for a construction company, because his partner, who works at a community legal centre in Moree, was pregnant and they needed the financial stability of a secure wage. Recently his partner gave birth to their daughter. He said that when his family is in a more secure financial position, he intends to operate his own business again. Although he is a fully-qualified carpenter, he also wants to obtain his building licence in the near future.

17. He said he is also involved in the local community, playing rugby league for a local team and playing golf competitively on most weekends.

18. He said that, when he was growing up, he spent a lot of time out at a large property, where co-incidentally, his employer currently has a large contract. His father was working there as a farmhand and chemical sprayer, living in a cottage on the farm for about 10 years; when the Applicant came back to Moree for holidays, from when he was about eight or nine years old, he would live there with him. The Applicant said he would be around some of the other workers, who would go pig chasing on the property. As such, he said, he had grown up around firearms. He applied for a licence to shoot on rural land for recreational hunting and vermin control, which includes wild pigs and foxes, which are a big problems in the Moree area.

19. In about January 2024, he spoke with the owner of the large property who, he said, was happy to provide him with permission to shoot there. Unfortunately, neither he nor the manager were available to sign a Permission to Shoot form; instead he provided an Authority to Shoot signed by Stephen dated 7 June 2024.

20. On 28 June 2024, the Applicant received his statement of attainment from the Firearm Safety and Training Council Limited; he had demonstrated, according to the certificate, a knowledge of firearms and community safety, as well as how to safely use a category A&B firearm.

21. As the Applicant understood it, the reason that his application was refused was his association with certain people, including Mick and Stephen and that Police allege that Stephen has ties with the Gladiators OMCG. Because he had an Authority to Shoot from Stephen, there is a risk to public safety if he was issued with a firearm's licence.

22. The Applicant said he first met Mick around the end of 2019 through a mutual friend who was also in the construction industry. When the Applicant came back to Moree in 2020, he was looking for work and Mick took him on as an apprentice carpenter. They primarily completed house renovations and extensions, although there were some larger commercial office fitouts.

23. He considered Mick to be a good person to work for and they got along well. They didn't particularly socialise outside of work, just because Mick was older and had a family. Mick always acted in a professional manner and there was nothing in his behaviour that gave the Applicant any concerns. They haven't spoken for a number of months; they only really chat if they bump into each other in the street or at the supermarket, and never for long. There is the occasional phone call. The Applicant didn't know anything about Mick having a criminal history; it just never came up.

24. The Applicant said he met Stephen when he first started working for Mick. He knew that Stephen lives in a small community about 45km southeast of Moree in the hills but has only been there once when he went with Mick to pick up some building materials that had been stored there that they needed for a job. The Applicant said he does not really have a relationship with Stephen and only knew him as Mick's father and he had only had a handful of short interactions with him. He and Mick never discussed Mick’s father’s involvement (if any) with the Gladiators. He had seen Stephen wear hoodies and shirts with the Gladiators on them, but had never thought anything of it; he said he just thought it was like another club, like when he wears his South Sydney Rabbitohs jersey on the weekends. In his oral evidence he said that he did not know the Gladiators was an OMCG. The Applicant said he has never had any association with the Gladiators or any other OMCG. In cross examination he said that while he had seen Stephen wearing Gladiators insignia on his clothing, he did not know if he was involved with the Gladiators. He had never discussed with Stephen his involvement with the Gladiators.

25. DS Groenewegen gave evidence that just because someone wears a Gladiators T shirt does not mean they are a member of the Gladiators, but he thought that if someone wore such a T shirt, that should give cause to look further into their involvement. He also gave evidence about the right to wear different insignia, but there was no evidence about the insignia the Applicant had seen Stephen wearing.

26. The Applicant said in his oral evidence that he knew almost nothing about Stephen, such as in relation to his personal life or what he did in his spare time; he knew nothing of his criminal history.

27. In June 2024 he was getting work materials and saw Stephen there. In cross examination he said that he had asked Stephen if he had a firearms licence and he had said that he did. The Respondent observed that the Applicant had not mentioned that in either of his affidavits and the Applicant said he had only just recalled it. The Applicant said he then asked Stephen if he was willing to sign a Permission to Shoot on his property for the purposes of his firearms licence application, and Stephen was happy to do so. Fortuitously, the Applicant had the papers in his ute at the time. The Applicant said in his oral evidence that it was convenient, and although he knew someone else who could have given permission to shoot on their property, they lived 90 kms away. That was the last time the Applicant spoke with Stephen, although he said in his oral evidence that he may have seen him around a few times.

28. There was no dispute that the Gladiators is an OMCG. DS Groenewegen said that a member “invests in that culture” even though they personally may not engage in violence and the criminal activities of the OMCG, but would do so if called upon. In his expert statement he referred to illegal activities known to have been undertaken by the Gladiators, including the illegal use of firearms. He believed that, given the length of Stephen’s association with the Gladiators (nearly 10 years) and that he has been a full member since 2017, he considered Stephen to be at serious risk of being involved in criminal activity, including serious violence. He did not understand there to be a Moree Chapter of the Gladiators, and acknowledged that Stephen may be the only member in the Moree area and that the nearest chapter, he thought was in Gunnedah. He was unaware if the Gladiators congregated in Moree. He was aware Stephen was still a member in 2024 but was unable to comment on whether he currently remains a member. He did not know of any involvement in illegal activity by Stephen since he had come to attention for firearms storage offences, now 7 years ago. DS Groenewegen conceded that, based on the material in relation to Stephen, he considered that Stephen personally posed only a minimal risk, but said that based on his knowledge of OMCGs the risk was elevated because of the OMCG culture.

12. The Applicant’s evidence was that he did not know that the Gladiators was an OMCG. While I accept DS Groenewegen’s evidence that seeing someone in a Gladiators T shirt “should give cause to look further into their involvement”, that necessarily assumes the person knows that the Gladiators is an OMCG.

13. The Applicant said that if he had known that asking Stephen for permission to shoot on his property would have resulted in these proceedings, he would have asked someone else.

14. [NOT FOR PUBLICATION]

15. The Respondent was critical of the Applicant for his failure to undertake due diligence in relation to Stephen, contending that the Applicant had exhibited poor judgment in his failure to enquire as to Stephen’s background. The Respondent submitted that by seeking permission from Stephen to shoot at his property, the Applicant has not demonstrated either the requisite knowledge of the responsibilities of a firearms licence holder, or that he can be trusted to possess firearms in a way that does not pose a danger to public safety or to the peace.

16. The Applicant conceded in his oral evidence that he did not turn his mind as to whether there was a risk in taking firearms to Stephen’s property, and had asked him nothing to ascertain if there might be a risk. He accepted in cross-examination that he had shown poor judgment in not making those enquiries of Stephen. He said he was satisfied though, having been to the property, that it was suitable to shoot on, given its distance from roads, other property, the proximity of stored fuel and sheds.

17. There are numerous cases in which the Tribunal has held that an applicant could come under pressure to make guns or ammunition available to criminals or criminal organisations if they associated with such persons or organisations: see recently, for example Stankovic v Commissioner of Police, NSW Police Force [2025] NSWCATAD 72. The Respondent submitted that, if granted a firearms licence, the Applicant may unwittingly expose himself to the significant risk of being compromised into providing a violent OMCG with access to firearms and ammunition. DS Groenewegen's expert opinion was that a firearms licence holder who became “too close” to a member of an OMCG would be at "significant risk of being compromised, whether willingly or by coercion, into providing access to firearms and ammunition”. He said in cross examination that by “too close” he meant more than a passing association. He said that some people may not want to go as far as joining an OMCG but support the group nonetheless. In his expert report he said that there were no specific recorded history of Gladiators members exploiting people known to them (in particular, non-members) to gain advantage or facilitate criminal conduct. However, exploitation of this kind was a feature of OMCG conduct generally. DS Groenewegen’s evidence was that although there is no evidence that Stephen has been involved in any specific criminal activity with the Gladiators, he is at "serious risk of becoming involved in serious criminal activity, including serious violence".

18. When the Applicant sought internal review of the original decision he offered to provide an alternative Permission to Shoot form from another landowner instead of Stephen. The Applicant has obtained a fresh Permission to Shoot from a friend (and distant relative by marriage), Beau Lysaught (Beau), the manager of a large farming enterprise, about 50km north-east of Moree, who he has known for about five or six years. There was no evidence that Beau is considered by the Respondent to be an unsatisfactory nominee. The Respondent submitted that the risk posed by the Applicant cannot be cured simply by nominating a different property at which to shoot.

19. The Applicant now accepts he made an error of judgment in seeking Stephen’s permission to shoot on his property. The Tribunal, it was submitted, could not have any confidence that the Applicant would exercise any greater levels of diligence or demonstrate greater levels of responsibility in the future. The Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. In that regard, past conduct of the Applicant is a significant guide in assessing likely future conduct: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141] (Stamatelatos).

20. The risk, the Respondent submitted before me, does not arise merely by reason of the Applicant's association with Stephen. Rather, the relevant risk is the ongoing one posed by the Applicant's own failure to identify the risks associated with the nominated shooting location and the inability to be satisfied that the risk will not materialise again. The risk of the Applicant being unwittingly compromised into providing Stephen or his associates with access to the Applicant's own firearm or ammunition was heightened in circumstances where Stephen has had his own firearms licence revoked and no longer has access to his own firearms and ammunition.

21. In the absence of any authority about an applicant’s obligation to conduct due diligence in nominating a location at which he intends to shoot, the Respondent contended that there is ample authority that an applicant must have the requisite knowledge of the responsibilities of the holder of a licence and must demonstrate that he or she can be trusted to possess firearms in a way that does not pose a danger to public safety or to the peace. The Respondent submitted that in order to comply with these obligations, an applicant will necessarily be required to take reasonable steps to ensure that their nominated shooting location does not pose a danger to public safety or to the peace. The precise steps required would fall to be assessed on a case-by-case basis. It was submitted that an applicant may be expected to undertake reasonable enquiries if the nominated location is the property of a stranger. In this case, Stephen was not a ‘stranger’, to the Applicant, although he was only an acquaintance.

22. If an applicant fails to take any steps to identify or mitigate risks associated with their nominated location, the Respondent submitted, it is unlikely that the applicant will be able to demonstrate either the requisite knowledge of the responsibilities of the holder of a licence or that he or she can be trusted to possess firearms without danger to public safety or to the peace. The Applicant had undertaken the obligatory firearms course, and I accept that, objectively, he had demonstrated the requisite knowledge of the responsibilities of the holder of a licence.

23. The Respondent submitted that the Applicant's own evidence makes clear that he took no steps to ascertain whether Stephen’s property was an appropriate place to possess and use firearms without danger to public safety or the peace. I do not agree – he satisfied himself in relation to the safety of the property on which he sought to shoot.

24. The Respondent referred to Stamatelatos, where the respondent pressed that, even in the absence of a criminal record, an applicant should be considered as not being fit and proper because of his membership of the Mongols OMCG. In Newman v Commissioner of Police, NSW Police Force [2018] NSWCATAD 17 the Tribunal set aside a decision to revoke the applicant’s firearms licence in circumstances where the Applicant had resigned his membership of the Gladiators and there was no evidence he had ever been charged with, let alone convicted of, any non-driving offence and his last conviction for a driving offence was some 19 years prior. Here, however, the Applicant was not a member of an OMCG, nor ever had been, and, in fact, on his evidence, did not even know that the Gladiators was such a gang.

25. I accept that, at the time the Applicant sought Stephen’s assistance, he was not aware of Stephen’s criminal history nor his association with an OMCG. The Applicant undertook a risk assessment of the property and scoped out the relevant infrastructure. He conceded that his failure to undertake a risk assessment of Stephen was an error of judgment, and he has now explored another candidate to authorise him to shoot on their property

26. In relation to his father, the Applicant said he is a spraying contractor and works away a lot. He is currently working in Warren, which is about 4.5 hours southwest of Moree. The Applicant said he has a really good relationship with him and they speak most days. In his oral evidence he described the relationship as “close”. Since the birth of his daughter, they speak more so that the Applicant can share his experience of parenthood with him, and also ask for advice from time to time. His dad has always been loving and has always looked after him. The Applicant has never known his father to have anything to do with illegal drugs and knew nothing about his father's criminal history.

27. [NOT FOR PUBLICATION]

28. [NOT FOR PUBLICATION]

29. [NOT FOR PUBLICATION]

30. For these reasons I am comfortably satisfied that the Applicant has the requisite knowledge of the responsibilities of a firearms licence holder, and can be trusted to have possession of firearms without danger to public safety or to the peace. I therefore find that the Applicant is a fit and proper person to hold a firearms licence.

Public interest

48. The Respondent also contended that it is not in “the public interest” for the Applicant to hold a firearms licence: s 11(7) of the Act. The term is not expressly defined in the Act. It is well-settled though that “the public interest” is considered relative to the objects of the Act and the firearms licensing system, with public safety being give paramount consideration: see, for example, Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 at [23] (Cusumano) and Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24] (Hill).

49. The Tribunal has repeatedly said that an applicant is not required to discharge an almost impossible burden of proving a near absolute negative, but, rather, the Tribunal must take into account all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [64]–[66].

50. The expression “public interest” is not defined in s 11(7), nor elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objects of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the “public interest” is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in deciding whether to exercise a discretion adversely to an individual.

51. The discretion to make a decision in the public interest is not confined except by the scope and purposes of the legislation itself: see DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15]. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano at [23]. The underlying principles stated in s 3(1) of the Act 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. Where there is the possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Lee v Commissioner of Police [2020] NSWCATAD 144 at [94].

52. The “public interest” factor, however, allows a consideration of issues going beyond the character of an applicant to be taken into account; public safety is to be given paramount consideration: Hill at [24].

53. The Tribunal has referred many times to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) where Deputy President Hennessy at [28] said that in terms of public safety, “the Tribunal must be satisfied that there is virtually no risk”, while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. The principle in Ward is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police [2013] NSWADT 137 at [36] and AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7]. These matters include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33].

54. It is well established that the likelihood of public safety risks is to be assessed by reference to an applicant’s prior conduct: Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182 at [41]. From the available evidence, I accept that the Applicant is a young family man intent on bettering his family circumstances through hard work. There was no evidence that he supports the Gladiators, and I accept that his interest in firearms is primarily recreational. He has admitted to an error of judgment in failing to enquire further about Stephen’s background, but has, since then, ascertained that he can obtain permission to shoot from another person who is better known to him. There was no evidence that the person he now nominates is known to Police nor is otherwise unsatisfactory as a nominee.

55. In Webb v Commissioner of Police, New South Wales Police [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that that it is “necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances and that only real and appreciable risk needs to be taken into account”. It is clear though that the overriding concern of the public interest in this context is the maintenance of public safety. Any real and appreciable risk to public safety cannot be outweighed by the Applicant’s interest in holding a firearms licence.

56. The Respondent submitted that it is contrary to the public interest to confer the privilege of a firearm on a person who voluntarily elected to associate with a member of an OMCG and intended to take firearms onto that person's land without taking any steps to identify or mitigate the risks of doing so and that it would materially undermine public confidence in the firearms licensing system if a person was issued with a firearms license despite demonstrating a lack of due diligence in selecting a property at which to shoot which would have placed him at material risk of being compromised. Public confidence in the licensing system is expressly referred to in the authorities as a relevant consideration. For the reasons given above I do not accept that the Applicant “voluntarily associated” with a member of an OMCG.

57. The Respondent further submitted that the Tribunal cannot be satisfied that there is "virtually no risk" in that the Applicant unknowingly exposed himself to the risk of being compromised into providing weapons or ammunition to an OMCG because he took no steps to ascertain the suitability of the property which he nominated to shoot at. As discussed above, the Applicant did enquire as to the suitability of the property. I do not accept that there is a real and appreciable risk that the Applicant will unwittingly expose himself to risk of compromise in the future.

58. It was submitted by the Respondent, the risk is not eliminated merely by nominating a different property at which to shoot; the real and appreciable risk is the Applicant's own demonstrated failure to undertake any due diligence. The Tribunal should not be satisfied that this would not occur again. In GGW v Commissioner of Police, NSW Police Force [2024] NSWCATAP 88, the Appeal Panel considered an appeal from a decision to refuse to grant GGW a firearms licence on the basis that doing so would entail a real and appreciable risk to public safety. GGW had previously been a member of an OMCG, and his brother remained a member. The brother lived 550 kilometres away and was not welcome in the appellant's house. In the initial hearing, the Tribunal had concluded that the brother's OMCG associates "could bring pressure to bear on the applicant to supply them with firearms, as has been known to happen in other cases". The Appeal Panel rejected this finding on four grounds, namely:

1. The Tribunal did not explain how the brother or his associates would know that the appellant had been granted a firearms licence or how or why they would put pressure on him to supply them with firearms: at [46].

2. A 10-year old threat by the brother to a neighbour was not probative evidence of a current firearms-related risk: at [47].

3. There was no sound evidentiary basis for linking the brother's conduct to a present risk. The evidence relied upon was second hand hearsay and "in any event does not establish any likelihood that the brother would find out that the appellant had been granted a firearms licence or that, if he did, he would try to intimidate his brother to supply him with firearms": at [49].

4. The Tribunal placed insufficient weight on the appellant's own change from being a former OMCG member to a productive and law-abiding citizen: at [50].

59. The Respondent submitted that the appeal decision in GGW can be distinguished on factual grounds. Unlike the brother in GGW, Stephen knew that the Applicant intended to apply for a firearms licence because the Applicant had asked him to sign a Permission to Shoot form. I do not accept this contention because whether a person has a firearms licence is a matter of public record.

60. Further, unlike in GGW, it was submitted, the Applicant in this case did not actively seek to distance himself from the risk posed by Stephen. To the contrary, it was submitted, he actively approached Stephen and unwittingly exposed himself to the risk associated with taking firearms onto the property of a known OMCG member whose own firearms licence had been revoked.

61. I accept that the Applicant happened upon his acquaintance Stephen at a time when he was attempting to obtain an Authority to Shoot in support of his firearms licence application. There was no evidence of any obligation to Stephen and, on balance, I do not accept that Stephen was personally likely to apply pressure to the Applicant in relation to firearms.

62. The Respondent submitted that I could not be satisfied that the Applicant will not unwittingly expose himself to other similarly significant risks in the future. In summary, the only way to protect the public and mitigate any public safety risk arising from the Applicant's demonstrated failure to undertake any due diligence into the location he nominated to shoot at, having regard to the principles and objects of the Act including the "overriding need to need to ensure public safety". For the reasons given above, I do not accept this submission.

63. I therefore find that it would not be contrary to the public interest for a licence to be issued to the Applicant.

Conclusion

64. Based on the facts and circumstances discussed above, I am comfortably satisfied that the Applicant would possess and use firearms only in accordance with the strict legislative requirements. The underlying principles of the Act stated in s 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. I do not find there to be a real and appreciable risk to public safety should the Applicant hold a firearms licence.

Decision

65. The decision under review is set aside, and the Applicant is to be granted a category AB firearms licence, subject to the production of a signed and dated Permission to Shoot, satisfactory to the Firearms Registry.

Costs

66. The Applicant applied for a costs order under s 60(2) of the CAT Act. The Applicant submitted that the Respondent’s position had no tenable basis in fact or law; that is, requiring the Applicant to undertake due diligence when nominating a location to shoot in circumstances where there was no authority to require that course. The defence of these proceedings by the Respondent was, it was submitted, frivolous and/or misconceived.

67. It is well established that the primary rule is that each party to proceedings in the Tribunal is to pay the party’s own costs: s 60(1) CAT Act.  The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs: s 60(2) CAT Act. The Tribunal is permitted to have regard to matters set out in s 60(3) of the CAT Act in determining whether there are special circumstances warranting an award of costs.

68. In that regard the Applicant referred to:

1. The nature of the Respondent's submissions;

2. The outcome of Stephen’s case;

3. The outcome of the GGW appeal;

4. The fact that the Applicant offered to provide an alternative Permission to Shoot.

69. I am not satisfied that any of the matters raised by the Applicant, whether individually or taken together, constitute special circumstances warranting an award of costs. The Respondent was entitled to defend the Application for Review and did so reasonably.

70. For these reasons, I dismiss the Applicant’s application for costs.

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

Registrar

Amendments

20 June 2025 - Member name corrected

Decision last updated: 20 June 2025