Walker v Commissioner of Police

[2016] NSWCATAD 247

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Walker v Commissioner of Police [2016] NSWCATAD 247
Hearing dates:	1 July 2016
Date of orders:	01 November 2016
Decision date:	01 November 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N S Isenberg, Senior Member
Decision:	The Commissioner’s decision to revoke Mr Walker’s firearm licence is affirmed
Catchwords:	FIREARMS – revocation of licence – extension of time for late application – effect of prior licence suspensions and conviction - private interest, public interest test.
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996 Firearms Regulation 2006
Cases Cited:	Farrell v Commissioner of Police [2016] NSWCATAD 96 Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 Ward v Commissioner of Police [2000] NSWADT 28
Category:	Principal judgment
Parties:	Douglas Lionel Walker (Applicant) Commissioner of Police (Respondent)
Representation:	Solicitors: Douglas Lionel Walker (Applicant in person) Office of the General Counsel, NSW Police Force (Respondent)
File Number(s):	1610160

REASONS FOR DECISION

Background

1. In March 2016 Mr Walker applied to the Tribunal to review a February 2016 decision of a delegate of the Commissioner (the Decision). The Decision was the result of an internal review which affirmed a September 2015 decision by a different delegate to revoke Mr Walker’s firearms licence. The Tribunal hearing took place on 1 July 2016.

The Tribunal’s jurisdiction

2. 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 revoke 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 material not previously available to or considered by the Commissioner, and any applicable written or unwritten law, and may exercise all 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

3. The Commissioner relied on:

1. documents filed with the Tribunal on 29 April 2016 under s. 58 of the ADR Act.;

2. a bundle of documents headed Respondent’s Submissions and Evidence filed on 21 June 2016. The bundle included written submissions (RS); and

3. oral submissions made by Mr Carlon, solicitor, during the hearing.

4. All references to paragraph numbers of submissions by the Commissioner are to paragraphs of RS unless stated to the contrary.

5. Mr Walker relied on:

1. his unsigned statement filed with the Tribunal on 10 June 2016;

2. two bundles of documents filed with the Tribunal on 20 May and 14 June 2016; and

3. his oral evidence and oral submissions at the hearing.

Consideration

Issues before the Tribunal

Preliminary issues – extension of time

6. The Commissioner stated at [34] to [36] that the Decision was received by Mr Walker on 10 February 2016 and the application to the Tribunal (the Application) was filed on 11 March 2016, 30 days later. The Commissioner submitted that the Application was required to be made within 28 days of the date on which the Applicant was notified of the Decision.

7. The Commissioner did not oppose the Tribunal granting Mr Walker an extension of time under s 41 of the Civil and Administrative Tribunal Act 2013 (the CAT Act). However the Commissioner did not consent to such an extension.

8. Section 41 of the CAT Act states:

41   Extensions of time

(1)  The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

(2)  Such an application may be made even though the relevant period of time has expired.

9. There is no dispute that the Application was filed two days outside the relevant period.

10. I observe that the Commissioner did not notify Mr Walker of the Decision until more than 100 days after receipt of the review application.

11. In the circumstances, I extended the period for Mr Walker to lodge his Application to the date on which it was received by the Tribunal.

Substantive issue

12. The substantive issue before the Tribunal is whether the internal review decision to affirm the licence revocation was the correct and preferable decision having regard to the terms of the Act, including its principles and objects, and the material before the Tribunal.

The law

13. Relevant legislation concerning the licensing, use and safekeeping of firearms is found in these reasons in references to the Act and the Firearms Regulation 2006 (the Regulation). All references to sections are to sections of the Act and all references to clauses are to clauses of the Regulation unless otherwise stated.

Background events

14. The Commissioner listed several background events which he regarded as relevant to the Decision. The undisputed facts regarding these events are:

1. On 4 February 2013 during a firearms inspection of Mr Walker’s gunsafe police located and seized an unregistered firearm. The Commissioner suspended Mr Walker’s licence. Mr Walker was charged with possessing an unregistered firearm-not prohibited firearm/pistol. In December 2013 the Local Court, without proceeding to conviction found that Mr Walker was guilty of the offence under s 36 (1) of the Act. The Court directed that the charge be dismissed under s 10 (1) (a) of the Crimes (Sentencing Procedure) Act 1999. (the 2013 event)

2. In January 2014 the Firearms Registry received an application dated 7 January 2014 from Mr Walker for a personal firearms licence. In the application Mr Walker had answered “no” to a question as to whether he had previously had a firearms licence suspended. The application contained a declaration and certification by Mr Walker that all the information contained in the application was true and correct in every detail. (the 2014 application)

3. On 8 May 2014, during a firearms inspection of Mr Walker’s gunsafe, police located and seized a Category C firearm. Mr Walker’s gunsafe did not comply with safe storage requirements for Category C firearms. Subsequently Mr Walker held a safe which did comply with those requirements. Mr Walker was not charged with any offence on this occasion. (the Category C event)

4. On 6 June 2015 a shotgun owned by Mr Walker and secured by him in his locked home was stolen. Mr Walker was not home at the time of the theft. The shotgun had not been secured in a gunsafe. Mr Walker was charged with an offence under s 39 (1) (a) of the Act. Section 39 (1) states:

39   General requirement

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

(a)  its safe keeping, and

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

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

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

On 7 October 2015, the Local Court convicted Mr Walker for not having taken all reasonable precautions to ensure that a firearm in his possession was safely kept. (the Conviction)

The Respondent’s reasons for the Decision

15. The Commissioner outlined his specific reasons for the Decision at [39] to [90]. Those reasons are referred to below as are Mr Walker’s evidence and relevant submissions.

Revocation for a reason for which a licence would be required to be refused

16. On 7 October 2015 Mr Walker was convicted of an offence under the Act (the Conviction).

17. RS referred to the following legislative provisions in relation to the Conviction:

1. a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind, s 24(2)(a);

2. a licence must not be issued to a person who has within the period of 10 years before the application for the licence been convicted in New South Wales of an offence prescribed by the regulations, s 11(5)(b); and

3. an offence relating to the possession or use of a firearm is a prescribed offence, cl 5(1)(a).

18. The relevant definition of “possession of a firearm” is found in s 4 which provides

possession of a firearm includes any case in which a person knowingly … has custody of the firearm …

19. There is no dispute that the offence for which the Applicant was convicted was an offence relating to the possession of a firearm and this is a prescribed offence. Accordingly, a licence must not be issued to Mr Walker pursuant to an application made before 7 October 2025.

20. The Commissioner acknowledged that he had no mandatory obligation to revoke the licence. Rather, he had a discretion as to whether or not to revoke the licence and Mr Walker had, in obtaining a licence, indicated a genuine need for a licence. The Commissioner submitted that the discretion should only be exercised in favour of a licensee in “special or exceptional circumstances” and said:

45.   Where circumstances that would require the Respondent to refuse to grant a licence arise in the context of a discretion to revoke a licence, the Respondent submits that discretion should only be exercised in favour of the licensee retaining the relevant licence in special or exceptional circumstances. To this end, we note the comments of Higgins JM in Maloney v Commissioner of Police, NSW Police, who said:

Although the Commissioner has a discretion in this regard where the conviction occurred after the licence has been issued, in my opinion, it will only be in special or exceptional circumstances where the discretion is exercised in a way not to revoke the licence.

46. The Tribunal also considered whether or not the discretion to revoke a licence under section 24(2)(a) should be exercised in Kalinic v The Commissioner of Police [2006] NSWADT 227. The Tribunal, after considering the decisions of Botros and Maloney, said at [23]:

In my view, this is the correct approach. It would be anomalous if a conviction, after the licence has been granted, is treated totally differently to a conviction before a licence application.

47.   …

48.   Relevantly, in Kalinic, the Applicant submitted that the "special circumstances" were "protecting the general fauna, the wildlife" and the Applicant's "obligation to keep feral animals down". The Tribunal rejected that they were special circumstances.

49.   Similarly, the Respondent submits that the circumstances of the current matter are not special or exceptional. The Applicant has particularised his need for a licence in his written submissions, stating:

The restriction of no firearms causes many hardships for my running of my properties. In keeping vermin under control as the feed that they eat. means at times I will have to hand feed my stock or decrease numbers, which will mean financial stress to every member of my family.

In his Administrative review application form, he stated:

I will be severely inconvenienced financially. My family will suffer plus my children will have to be taught the finer art and marksmanship with firearms and safety by someone else, except by me.

50.   Against this, the Applicant has also stated that he does not in fact use his firearms often:

In June 2015, he told police, 'I haven't been shooting for years.'

In February 2013, he told police the last time he had used his firearms was 'a long time ago maybe 18 months ago.'

51. The Tribunal should reject any suggestion that the Applicant has special circumstances for holding a firearms licence because of his need to keep vermin under control, and his desire to teach his daughters how to use firearms, particularly when, by his own statements, he says he does not use his firearms often. The reasons he provides for needing his firearms licence are ordinary. They fall short of being categorised as special or exceptional. The Tribunal should not shy away from exercising discretion adversely to the Applicant merely on the grounds of some asserted hardship or inconvenience. Additionally, having regard to the Applicant's history of contraventions against the Act, it would not be in the public interest that he teach his daughters about the lawful and proper use of firearms at all.

52.   Similar to that view held in Botros v Commissioner of Police, NSW Police Service, it would be anomalous if, despite committing a prescribed offence only 14 months after the grant of his firearms licence, the applicant were to retain his five year licence, in circumstances where if he had committed the offence before the issue of his licence he would have been mandatorily refused under the Act for ten years.

21. Mr Walker’s relevant evidence and submissions were as stated above by the Respondent. The submissions represent personal interests of Mr Walker and his family and should be contrasted with the interest of the public in relation to the possession and use of firearms.

22. In Farrell v Commissioner of Police [2016] NSWCATAD 96, in response to similar submissions by the Commissioner to those set out above I said:

25.   I observe that in Kalinic, Montgomery JM said at [24]:

This is a difficult matter in that the Local Court has treated Mr Kalinic’s convictions as on the lower end of the scale. He received a $200 fine for an offence where the potential penalty is two years in gaol and five and a half thousand dollar fine. Nevertheless, the repercussions for Mr Kalinic as they relate to his firearms licence are very severe. I am satisfied that this is what Parliament intended.

26.   The Local Court treated the Applicant’s conviction as on the lower end of the scale. He was fined $300 for an offence with a potential penalty of five years’ imprisonment. However, the Applicant provided no evidence as to any special or exceptional circumstances nor any evidence as to any reason why his role in destroying feral animals or humanely destroy stock could not be carried out by some other appropriately licensed person.

27.   I agree with the approach taken by Higgins JM and Montgomery JM. Having regard to the circumstances of the conviction in March 2015 and the undisputed evidence leading to that conviction I find that there are no special or exceptional circumstances persuading me that the discretion should be exercised in favour of the Applicant.

23. The facts in Farrell’s case as to the genuine reasons for which a firearm licence was required were not dissimilar to Mr Walker’s reasons. At [7] I observed that Mr Farrell had stated that he needed a firearm licence:

to control large and small vertebrate pests on his father’s farm. Being the manager of the farm he needed to control feral pests such as pigs, goats, rabbits and foxes. He also needed at times to humanely destroy stock such as sheep and cows that were sick or injured.

24. I consider the issue of “Public interest versus private interest” at [59] to [63] below and will not duplicate that consideration here.

25. I find that the ground in s 24(2)(a) creating a discretionary power of revocation has been made out.

Revocation because Mr Walker supplied information which was false or misleading in a licence application

26. Section 24 (2) (b) (i) states:

A licence may be revoked … if the licensee … supplied information which was (to the licensee’s knowledge) false or misleading in a material particular in, or in connection with, the application for the licence …

27. The Commissioner submitted at [54]:

54.   …the Applicant provided false information on his 2014 Licence Application. The false information related to whether or not the Applicant's firearms licence had previously been suspended. The Applicant must have known that the answer he provided was false as the Applicant's Licence had been suspended only less than 11 months prior.

28. The Commissioner observed that the 2014 application included a declaration by Mr Walker under which he recognised that it was a serious offence to make a statement or provide information knowing it to be false or misleading.

29. A copy of the 2014 application was in evidence at the hearing and Mr Walker provided no evidence to contradict the Commissioner. Nor did Mr Walker expressly address this matter in his submissions.

30. The Commissioner submitted that the power of revocation is discretionary and should be exercised so as to revoke the licence.

31. I find that the ground in s 24(2)(b)(i) creating a discretionary power of revocation has been made out.

Revocation because the licensee contravened the Act or Regulation

32. Section 24 (2) (b) (ii) states:

A licence may be revoked … if the licensee … contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention

33. The Commissioner referred at [58] and [59] to the 2013 event, the 2014 application, the Category C event and the Conviction.

34. The Commissioner submitted that having regard to these undisputed events Mr Walker had demonstrated a consistent disregard for the strict controls and provisions of the Act and Regulation.

35. I find on the evidence before me that Mr Walker has at times contravened provisions of the Act and Regulation. However, having regard to the Commissioner’s evidence that Mr Walker had held a firearm licence for most of the period between 1995 and the date on which his licence was suspended in 2015, I do not find that the disregard demonstrated by Mr Walker was “consistent”.

36. I accept the Commissioner’s submission that ensuring that firearms are stored safely, in accordance with the terms of the Act, decreases the likelihood that they will fall into the hands of people who may use them to commit serious offences of violence against the community.

37. The Commissioner further submitted:

64.   The Respondent accepts that the Respondent has a discretion to revoke a licence under section 24(2)(b)(ii) and acknowledges that the Applicant has, in obtaining the Licence, indicated a genuine need for a firearms licence.

65. While the Respondent has a discretion to revoke the Licence on the basis that the Applicant has contravened the Act and Regulations, for the reasons set out above, and particularly on the basis that the Applicant has contravened the Act four times in the past three years, that discretion should be exercised to revoke the Licence.

38. Mr Walker provided no evidence to dispute the four events relied on by the Commissioner nor did he specifically address the matters raised by the Commissioner under s 24 (2) (b) (ii).

39. I find that the ground in s 24(2)(b)(ii) creating a discretionary power of revocation has been made out.

Revocation because the Commissioner is satisfied that Mr Walker negligently caused a firearm to be stolen

40. Section 24 (2) (c1) states:

A licence may be revoked … If the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen …

41. The Commissioner relied on the Conviction and submitted that Mr Walker’s shotgun was stolen because of his negligence. The Commissioner said:

68. In Muller v Lalic [2000] NSWCA 50, a case dealing with the failure to safely store a firearm, the Court of Appeal held that a failure to comply with statutory requirements is evidence of negligence.

69.   While the Respondent has a discretion whether to revoke the Licence or not on the basis that the Applicant has, through negligence on his part, caused a firearm to be stolen, having regard to the circumstances of the stealing, that discretion should be exercised to revoke the Licence.

42. Mr Walker’s evidence of the event which led to the Conviction was that on the morning of Saturday, 6 June 2015 he had intended to use the shotgun to eradicate feral cats near his house. He stated that the shotgun was unloaded and within his sight all morning. The shells were placed on top of a refrigerator a few feet from the shotgun. He was running behind schedule to attend a clearing sale away from his property and before locking and leaving his home he placed the shotgun on top of a piano inside his lounge room. He was away from home for 4 ½ hours and on his return discovered that the shotgun was missing. He subsequently informed police of the theft of the shotgun and of some machinery from his property.

42. In his application for an internal review Mr Walker stated that in the 30 odd years he had resided at the property he had never lost a thing. In response, the Commissioner produced evidence that Mr Walker’s home had been broken into and property stolen in 1990, some 25 years earlier. Mr Walker’s oral evidence to the Tribunal was that at the time he stated that he had never previously lost anything from his property he had forgotten the 1990 event.

43. The evidence shows that on 6 June 2015 Mr Walker had an approved gunsafe on his property and that notwithstanding the theft of other items from the property on or about that date, all firearms within the gunsafe remained secure.

44. The Commissioner submitted that the theft of the shotgun would not have occurred if it had been securely locked in Mr Walker's gunsafe and that he was aware of his statutory obligations in this regard. The Commissioner also submitted that the theft of the shotgun created a possible threat to public safety because it had moved into the hands of an unknown person.

45. Mr Walker submitted that he thought that by locking the shotgun inside his house, a structure of hard wood and steel or house bricks, he had complied with his obligation of ensuring safe keeping of the shotgun.

46. I observe that there is evidence that during the seizure of his firearms and licence in June 2015 Mr Walker said to police officers words to the effect that he should have followed a mate’s advice and cut all the locks on his safe. It may well be that Mr Walker’s honesty in informing police of the whereabouts of the shotgun at the time that it was stolen had a direct negative effect in that it led to the seizure of his firearms and the revocation of his licence. However, I find that Mr Walker’s honesty in informing police of what actually happened is to be commended irrespective of the revocation.

47. Having regard to the facts detailed above I find that the ground in s 24 (2) (c1) creating the discretionary power of revocation has been made out.

Revocation for any reason prescribed by the Regulation

49. Section 24 (2) (d) states:

A licence may be revoked … for any other reason prescribed by the regulations.

50. Clause 19 states:

The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

51. The Respondent submitted:

73.   The High Court in O'Sullivan v Fanrer stated that the "public interest" imported a discretionary value judgment to be made by reference to undefined factual matters, confined only insofar as the subject matter and the scope and purpose of the statutory enactments may enable.

74.   The concept was discussed by the Tribunal in Commissioner of Police v Toleafoa, as follows:

The 'public interest' is an inherently broad concept giving an appellant [the Respondent] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with in the same section [section 15], it is reasonable to infer that the parliament intended that the public interest discretion operated in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.

75. The circumstances in Toleafoa related to the revocation of a security licence under the Security Industry Act 1997. In Ward v Commissioner of Police, the Tribunal confirmed that these comments apply equally to the Act.

76.   In Cusumano v Commissioner of Police, New South Wales Police Service, the Tribunal stated:

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

77. In Lynch v Commissioner of Police (GD), the Tribunal said relevant factors to be considered by the Respondent in determining whether to exercise his discretion include matters of general public policy, which were in turn said to be informed by the principles and objectives of the Act, namely, to confirm that firearm possession and use is a privilege conditional upon the overriding need to ensure public safety.

78. In Aubrey v Commissioner of Police [2005] NSWADT 266, the Tribunal stated:

Where there has been, or is, a 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.

79.   The principal issue in determining public safety is whether or not there is a risk to the safety of the public if the Applicant retains the relevant licence: see Vella v Commissioner of Police.

80.   In Davos v Commissioner of Police, the Tribunal said:

The most fundamental principle of the Act is that the possession and use of firearms is conditional upon the overriding need for public safety. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences.

81.   In considering risk to public safety, the Tribunal has recognised that before it interferes in any decision to revoke a licence that it must be satisfied that a person would not pose a risk to public safety if they had access to firearms. In Ward, the Tribunal stated

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.

[emphasis added]

82. The Respondent submits that the Applicant's continuous disregard for the strict requirements of the Act, exemplified by the fact that he has contravened the Act in 2013, 2014 and 2015 (having been charged and found guilty in 2013 and 2015), compounded by him providing false or misleading information relating to his firearms status (which is also considered a contravention of the Act), means there would be a real risk to public safety if the Applicant were permitted to continue to hold a firearms licence.

83. In particular, the 2015 conviction demonstrates the risk the Applicant poses to the public safety. It was as a direct result of the Applicant's failure to safely secure his shotgun, that it is now in the hands of someone who may use it to commit serious offences against the community. This is exactly what the safe keeping requirements under the Act operate to avoid. As discussed above, it is exactly what the principles of the Act are directed towards and what the public interest test is aimed at. The fact that there is a possibility of a threat to the public's safety, by virtue of the fact that a shotgun is now unlawfully in the hands of an unknown person, the public's right to safety must outweigh the Applicant's privilege to possess and use firearms.

84. In addition, the Applicant's lack of understanding and lack of appreciation of his obligations under the Firearms Act cause serious concern. While he had declared in his licence application that he fully understood and can comply with the safekeeping requirements, his actions demonstrate otherwise. Not only has he recently breached the safe keeping requirements in two consecutive years (2014 & 2015), his own submissions give an insight into how he perceives his obligations. In a letter to the Respondent, the Applicant stated that in his view his firearm was secured safely, because it was inside a locked house. He reiterated that view in his written submissions …

85. It is of significant concern that while the Act requires that a firearm be stored in a locked receptacle with specific specifications when it is not actually being used or carried, the applicant does not believe this is necessary if it would be inconvenient to him. It is that attitude that leads to inadequate safe storage practices which creates the opportunity for criminals to steal firearms. That was the view of the Tribunal in Whiltshire v Commissioner of Police where it held that:

ensuring that only permitted firearms are in the possession of licensees and that those firearms are stored in a safe and secure manner decreases the likelihood that they may be used in committing serious offences against the community. It is clear from the legislation that Parliament has identified these matters as central and critical objectives of the legislation. Those principles and objectives have been reinforced in numerous decisions of this Tribunal. Mr. Wiltshire's conduct must be viewed with reference to them. Parliament did not leave the matter of the manner in which firearms are to be stored to the discretion of licence holders but instead elected to impose detailed and prescriptive requirements on all licences

…

86.   … it is not in the public interest to allow the Applicant to hold a firearms licence.

52. Mr Walker did not dispute any of the above submissions by the Commissioner.

53. I concur with the thrust of the Commissioner’s submissions as to the overriding relevance and importance of public safety and the public interest and find that the ground in s 24(2)(d) creating a discretionary power of revocation has been made out.

Mr Walker’s case

54. Mr Walker submitted that he was aware of the requirements of the Act, that circumstances in relation to firearms were different for people on the land to people in the city and ask that the Tribunal have “mercy on him“.

55. Mr Walker did not specifically address each of the Respondent’s arguments. Instead he submitted that some of the Commissioner’s allegations were not true, he had taken all reasonable precautions to stop his shotgun being stolen, he wanted to teach his children how to use firearms, he should have been informed that firearm law had changed. Being told that changes to the law are on the Internet is of no use to him because he only learnt to use the Internet three years ago and a person of his age is set in his ways and does not like to change. Being without his licence would cause his family to suffer financial hardship.

56. Mr Walker said that he was aware that when the term of his licence expired in 2019, it would not be renewed. He submitted that if the Tribunal set aside the revocation he would have three years to train his daughters to use firearms in his place. I observe that if the revocation was set aside, then, on Mr Walker’s evidence, his eldest daughter would be 17 when his licence expired. At that age she would be too young to hold a firearm licence. Towards the end of the hearing Mr Walker conceded this point.

57. The bundles of documents filed by Mr Walker included:

1. a letter from Mr Walker’s brother stating that in 2015 he purchased the property adjoining Mr Walker’s property “Pineview”. He runs a company 10 hours from the property purchased and has leased his property to Mr Walker on the condition that he keeps all feral wildlife under control and requests consideration in favour of his brother because of his need to hold his licence for his rural primary production.

2. A positive character reference dated 13 May 2016 from a person who states that he has known Mr Walker for an excess of 20 years. This reference does not refer to these proceedings nor does it indicate any knowledge of the firearm offences committed by Mr Walker. Because of these deficiencies the reference cannot be given any great weight.

3. A reference dated 5 May 2016 from a director of a company on company letterhead indicating a knowledge of part of Mr Walker’s history in relation to firearms, stating that the referee has known Mr Walker for over 30 years and providing a positive reference in relation to Mr Walker being a good family man who is involved in community organisations and his belief that Mr Walker will learn from the incident, which the referee described as “a charge of Unsecured Firearm”. The reference is addressed to the “Presiding Magistrate” and is headed “Charge of Unsecured Firearm”. No reference made to the proceedings before the Tribunal nor to the Conviction nor the other relevant events in 2013 and 2014.Only limited weight can be given to this reference.

58. I have had regard to all the references in making my findings and decision in this matter.

Public interest test

59. I referred at [17] above to s 24 (2) (a) which provides that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. I observe that s 11 (7) relevantly states:

… the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

60. I accept that Mr Walker’s submissions may well constitute genuine personal reasons for obtaining a personal firearms licence. However other than the unsubstantiated reference to a financial cost to his family he provided no evidence as to why it was necessary for him personally to destroy feral pests rather than that function being exercised by some other person with an appropriate licence.

61. In response to Mr Walker’s desire to instruct his daughters in relation to marksmanship and the proper use of firearms Mr Carlon outlined, correctly in my opinion, risks involved in Mr Walker providing instructions which contradicted legislative obligations on licence holders in relation to the possession and safe keeping of firearms.

62. A discussion of relevant case law with respect to public interest was set out in Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 including:

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….

63. Section 3 provides that the first of the underlying principles of the Act is that firearm possession “is conditional on the overriding need to ensure public safety”. I note the Commissioner’s extraction at [81] of the principle stated by DP Hennessy at [28] in Ward -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (see [51] above). That principle has been applied on numerous occasions by this Tribunal and the former Administrative Decisions Tribunal and in my opinion applies in this matter.

Legislative principles and objects

64. When introducing the Firearms Bill, which became the Act, the then Attorney General, in the Second Reading Speech, said New South Wales was implementing “comprehensive, tough new gun laws”. He also said:

The proposed Act will improve public safety by imposing strict controls on the possession and use of firearms, promoting the safe and responsible storage and use of firearms

65. Relevantly s 3 states

(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) …

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

(a)  …

(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,

66. I have had regard to the material before me, in particular the specific events involving Mr Walker in 2013, 2014 and 2015, Mr Walker’s evidence and submissions, and the findings I made above.

67. I find that Mr Walker was or should have been aware in February 2013 that he was holding a firearm in his safe to which he was not entitled and that he had held that firearm contrary to the law for a lengthy period. I find that no later than the firearms inspection in May 2014 Mr Walker was aware of the legislative safe storage requirements in respect of all firearms then held by him, this includes his awareness the following year that locking a shotgun in his house rather than locking it in approved gunsafe was a breach of his safe keeping obligations.

68. I am not satisfied, in the Ward sense, that if I set aside the revocation then for the remaining term of the licence there would be virtually no risk in terms of public safety should Mr Walker resume possession and use of firearms. I do not doubt the personal interest of Mr Walker and his family in seeking to retain his licence. However, it is settled law that firearm possession and use is a privilege which is conditional on the overriding need to ensure public safety.

Decision

69. The correct and preferable decision of the Tribunal is that the Commissioner’s decision under review to revoke Mr Walker’s licence is affirmed.

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: 01 November 2016