Weckert v Commissioner of Police, NSW Police Force

[2011] NSWADT 197

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Weckert v Commissioner of Police, NSW Police Force [2011] NSWADT 197
Hearing dates:	22 March 2011
Decision date:	18 August 2011
Jurisdiction:	General Division
Before:	S Montgomery, Judicial Member
Decision:	The decision under review is affirmed.
Catchwords:	Firearms licence - revocation of licence or permit - public interest
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Firearms Act 1996 Firearms Regulation 2006
Cases Cited:	Allan v Commissioner of Police [2008] NSWADT 230 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 Chaining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 Sobey v Commercial and Private Agents Board 20 SASR 70. Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
Category:	Principal judgment
Parties:	Chris Lyal Weckert (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Woodgate Morgan Solicitors (Applicant) Sparke Helmore (Respondent)
File Number(s):	103317

REasons for decision

1. GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): The Applicant was the holder of Class AB licence under the Firearms Act 1996 ("the Act"). In August 2010 a delegate of the Commissioner revoked the Applicant's licence on the bases (a) that the Applicant was not a fit and proper person to hold such a licence; and (b) it was against the public interest for the Applicant to continue to hold such a licence.

1. The determination was affirmed on internal review, albeit on a different basis.

1. In his application for internal review the Applicant relied upon, amongst other things, a statement ("the purported reference") purportedly from Ms Victoria Walton. Ms Walton is the former de-facto of the Applicant. She had made a number of complaints about the conduct of the Applicant and those complaints led to the revocation of the Applicant's licence. The disputed statement attributes to Ms Walton the concession that she "unintentionally exaggerated the issues at the time as a result of stress".

1. In reference to that part of the disputed statement the Applicant argued that the veracity of the statements that Ms Walton had made to police were greatly compromised.

1. The delegate undertaking the internal review accepted the contents of the disputed statement on face value and found as a fact that Ms Walton's allegations against the Applicant had been exaggerated.

1. The internal review's findings of facts included the following:

• "That [the Applicant's] Category AB firearms licence was first issued on 9 October 2003 for the genuine reasons of Target Shooting and Recreational Hunting/Vermin Control;
• That on 18 December 2009 police were required to attend a domestic disturbance at the residence [the Applicant] shared at that time with [the Applicant's] partner, Victoria Walton, and [the Applicant's] two children;
• That [the Applicant was] made subject to a Provisional Apprehended Violence Order (AVO) on 19 December 2009 for the protection of Victoria Walton. [The Applicant's] firearms were seized;
• That [the Applicant's] firearms licence was suspended on 30 December 2009;
• That the Provisional AVO was revoked on 14 January 2010;
• That [the Applicant's] firearms licence suspension was lifted on 18 January 2010;
• That on 9 February 2010 it was alleged to police that between 5 and 8 February 2010 [the Applicant] made serious threats against Victoria Walton, and regarding [the Applicant's] two children;
• That [the Applicant's] firearms licence was suspended on 9 February 2010;
• That [the Applicant was] made subject to a Provisional AVO from 9 February to 9 March 2010 for the protection of Victoria Walton and [the Applicant's] children. That Order was extended to an Interim AVO on 25 February 2010, which was then revoked on 26 August 2010;
• That Victoria Walton now states that the allegations she made to police on 9 February 2010 were exaggerated regarding the detail of threats by [the Applicant];
• That Victoria Walton states she has no fears for herself or her family's safety if [the Applicant regains his] firearms licence and firearms."

1. The Commissioner's delegate concluded:

"Public interest, in the context of clause 19 of the Firearms Regulation 2006 requires that paramount consideration must be given to public safety. Your licence was issued to authorise recreational pursuits. In my view your desire to pursue a particular form of sport should not be given more importance than the need for public safety.

In 2008 [in the decision in Allan v Commissioner of Police [2008] NSWADT 230 at paragraph 32] the ADT affirmed that when considering the issue of public interest, the relevant test for the Tribunal to apply remains that set out in Ward v Commissioner of Police [2000] NSWADT 28. As I cannot eliminate the possibility of risk should your access to firearms be returned, I believe that the Commissioner's decision was preferable in the interests of public safety."

1. The Applicant applied to the Tribunal for external review of the determination by the Commissioner's delegate.

Applicable legislation

1. Section 24(2) of the Act provides that:

(2) A licence may be revoked:

(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or

(b) if the licensee:

(i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or

(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or

(iii) contravenes any condition of the licence, or

(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

...

(d) for any other reason prescribed by the regulations.

1. Section 70 of the Act provides that:

70 False or misleading applications

A person must not, in or in connection with an application under this Act or the regulations, make a statement or provide information that the person knows is false or misleading in a material particular.

Maximum penalty: imprisonment for 10 years if the application relates to a prohibited firearm or pistol, or imprisonment for 5 years in any other case.

1. Clause 19 of the Firearms Regulation 2006 ("the Regulations") provides that a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to continue hold a licence.

1. Clause 5(l)(e) of the Regulations provides that a prescribed offence that would lead to a revocation of a licence includes an offence involving fraud dishonesty or stealing when a penalty of imprisonment for 3 months or more was imposed.

The evidence

1. The evidence before the Tribunal consists:

(a) the Commissioner's documents ("the section 58 material") lodged pursuant to section 58 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act");

(b) the statement and the evidence given by the Applicant;

(c) the statement and the evidence given by Ms Walton.

1. In addition to the evidence, each party provided written and oral submissions.

The Commissioner's case

1. The Commissioner asserts that the Applicant made serious threats against Ms Walton over a long period of time and that he also made threats regarding their children. The Commissioner relies on the section 58 material and the evidence given by Ms Walton in regard to that issue. Ms Walton stated that she has reviewed the Police record of events as recorded in the COPS system and included in the section 58 material. She asserted that it provides a true and correct statement of the events that occurred.

1. In her written statement Ms Walton also referred to a reference that she had provided to the Applicant in September 2010. She stated that the Applicant had given her a letter ("the draft reference"), written by the Applicant's solicitor, that he wanted Ms Walton to sign. She stated that she was not happy with the contents of the draft reference. In particular she was not happy with part of the draft reference that indicated that she had exaggerated the previous information that she had provided to the police. Ms Walton stated that she had told the Applicant that she was not going to continue to lie for him and that she would write her own reference. She did so and provided the only copy of that document ("the reference") to the Applicant.

1. Ms Walton stated that she had reviewed the purported reference that the Applicant provided in support of his application for an internal review of the decision to revoke his firearms licence. She said that she believes that the purported reference is in fact the draft reference. She stated that she did not write or sign the draft reference.

1. Ms Walton annexed to her statement in these proceedings part of an affidavit of the Applicant dated 3 November 2010 that was filed in proceedings in the Federal Magistrates Court of Australia. Paragraph [68] of that affidavit states:

"Due to the interim AVO Order my gun licence was taken from me. I have recently applied to get it back. For this purpose I had three people and [Ms Walton] write me references in support. Annexed hereto and marked with the letter "B" is a copy of the reference written by [Ms Walton] dated 30 September 2010".

1. Ms Walton also annexed to her statement a copy of the Annexure "B" document referred to in the Applicant's 3 November 2010 affidavit ("the Annexure "B" document"). She stated that the Annexure "B" document is the reference that she provided to the Applicant on 30 September 2010.

1. The Annexure "B" document states:

"I have seen the Notice of Revocation ...

In the Notice the registry says that Chris has made threats towards myself and our children such as:

"Get out of my face before I kill both of you";

"I wont walk away from the kids. I'll take them to the grave with me first";

"Find a way to fix this or none of us will be breathing"

This comes about from the second provisional Apprehended Violence order made at the Local Inverell Court in February this year where I was the protected person, this order was withdrawn in August of this year by the police due to no further incidents between Chris and myself.

I have no fears for my or my children's safety if he regains his firearms licence and his firearms."

1. In her oral evidence before the Tribunal Ms Walton confirmed the assertions that she made in her written statement. She confirmed that she holds no fears for her own safety, or that of her (and the Applicant's) children, if the Applicant regains his firearms licence and his firearms.

1. It is not in dispute that Ms Walton was intoxicated at the time of the incidents that lead to the revocation of the Applicant's firearms licence and that she had a serious problem of alcohol abuse. She is now undergoing a course of drug and alcohol counselling.

1. The Commissioner points to the differences between the Annexure "B" document and the purported reference. The purported reference states (emphasis added):

"I have seen the Notice of Revocation ...

I see in the Notice that the registry says that Chris has made threats to me and the family such as:

"Get out of my face before I kill both of you";

"I wont walk away from the kids. I'll take them to the grave with me first";

"Find a way to fix this or none of us will be breathing"

This comes about from the second provisional Apprehended Violence order made at the Local Inverell Court in January and August this year where I was the protected person on each occasion and which were later withdrawn.

In hindsight I see the situation in clearer perspective and say I unintentionally exaggerated the issues at the time as a result of stress.

The threats made were less threatening and less direct, than quoted. I exaggerated the detail concerning them, and this is one of the reasons I did not proceed with the AVO on either occasion.

I have no fears for my or my children's safety if he regains his firearms licence and his firearms."

1. It is my understanding that each of the parties agree that the signatures on both the Annexure "B" document and the purported reference are identical in every respect. A simple examination of the two documents supports that view. It is apparent that one of the documents is a fabrication.

1. Ms Walton denied signing both documents and asserted that she could not have signed them both identically. Ms Walton also denied that she is motivated by animosity and is attempting to discredit the Applicant in order to obtain custody of their children.

1. The evidence of the Applicant and Ms Walton are not consistent in a number of respects. The Commissioner submits that the evidence of Ms Walton is supported by other documents that form part of the section 58 material and that her evidence is to be accepted over that of the Applicant.

1. The Commissioner points to a number of issues referred to in the evidence. The Commissioner notes that a criminal record check in regard to the Applicant indicates a matter recorded as Obtain Money by Deception in 1998. The circumstances set out in the COPS system entry refers to an issue involving a large number of cheques. This contrasts with the Applicant's assertion that the matter arose in regard to the issuing of a single cheque that bounced and that the matter was resolved immediately after it was brought to his attention.

1. Mr Zoppo argues that It is apparent from the COPS system entry that the matter was not resolved some 2 months after the incident as the police were continuing with their investigation.

1. In relation to allegations made by Ms Walton, the Commissioner notes that the Applicant admitted smashing a phone but stated that it was his phone and that the damage was caused by a design fault. He also admitted that he did certain things such as pouring Ms Walton's wine onto grass in an attempt to stop Ms Walton drinking. He agreed that he had emptied the cask of wine into a sink but he denied using a knife to slash the cask or even possessing a knife at that time. This version of this incident is contrary to the police record made shortly after the incident in which he denied being controlling or grabbing Ms Walton but admits pushing Ms Walton away because 'he had a knife'.

1. The Applicant admitted that he used the reference in his family law proceedings. The Commissioner submits that it is implausible that Ms Walton would have also signed the draft reference, even though she had indicated that she did not agree to the statements included in it. Mr Zoppo argues that the Tribunal should accept that Ms Walton only signed one reference for the Applicant and that the reference that she signed is the one that the Applicant included in his 3 November 2010 affidavit. The Tribunal should also find that the Applicant mislead the Commissioner's delegate who was undertaking the Internal Review into thinking that Ms Walton had withdrawn the complaints saying that she had unintentionally exaggerated the threats.

1. Mr Zoppo submitted that on balance the Tribunal would be satisfied of the following facts:

(a) the Applicant was involved in a domestic relationship for about 9 years.

(b) during the relationship the Applicant was violent towards Ms Walton and made serious threats to Ms Walton and the children of the relationship.

(c) the Applicant and Ms Walton could not resolve the custody and property settlement issued without resorting to family law proceedings.

(d) orders of the Family Magistrates Court are in place relating to the access arrangements for the children to the relationship.

(e) the parties will continue to be responsible for sharing access to the children, with Ms Walton being primarily responsible for the care of the children once she demonstrates her ability to look after the children.

(f) these access arrangements provide a source of potential tension involving children that may escalate to threats of violence and violence.

(g) the Applicant has made the threats complained of by Ms Walton.

(h) the threats made by the Applicant to Ms Walton are threats of serious violence and threats directed at the children to the relationship. They include, "I wont walk away from the kids, I'll take them to the grave with me first', and 'find a way to fix this or none of us will be breathing'. The threats are of serious harm to not only Ms Walton but also the children.

(i) It is clear that Ms Walton has taken the threats made by the Applicant in February 2010 seriously.

1. Mr Zoppo contends that the Tribunal should find on balance that the Applicant made threats to Ms Walton that he would kill her and her children on a number of occasions and that the Applicant created a false document and used it to deliberately mislead the delegate of the Commissioner dealing with the internal review and also the Tribunal. He submits that by his conduct the Applicant has demonstrated a lack of integrity and a capacity for dishonesty that has no place for the holder of a firearms licence. He says that the evidence clearly demonstrates that the Applicant is not a fit and proper person within the meaning of the Act.

1. Mr Zoppo further submitted that even if the Tribunal were satisfied with respect to the "fit and proper" ground, the Applicant's conduct fails the public interest test. He argued that the effect of the Applicant's conduct leads inevitably to the conclusion that it is not in the public interest for the Tribunal to reinstate the Applicant's licence. He says that it is not in the public interest that a person who makes serious threats of harm to his de-facto partner and their children be the holder of a firearms licence. Further, it is not in the public interest that the Applicant should hold his licence when he has provided false and misleading information in an application for a licence or for an internal review.

1. It is submitted that the correct and preferable decision is to affirm the decision of the Commissioner to revoke the Applicant's firearms licence.

The Applicant's case

1. The Applicant relies on a statement of evidence dated 28 February 2011. In his statement he addressed the material contained in the section 58 material. He conceded a 1998 offence of "mid-range PCA - drive motor vehicle" and that in 1997 there was an allegation that a cheque he had written was not paid. He stated that a subsequent cheque was written immediately, and that the payment owing was made, and that the writing of the first cheque was done in the belief that there were sufficient funds to cover it at the time, and there was no intent to avoid payment. He also stated that there were financial problems with his company Chrielle Constructions arising from inexperience on his part but that all debts owing by that company were paid as soon as possible. The Applicant also acknowledged a 1991 incident in which it is alleged there was fraud on his part. He recalled that the situation was remedied at the time without any police action.

1. In relation to the incidents involving Ms Walton he stated that:

• he does not contest the fact that he was made subject to a Provisional Apprehended Violence Order on 19 December 2009 with Ms Walton being the protected person;
• Ms Walton had been drinking and he remonstrated with her about her drinking;
• he was not controlling and aggressive, other than trying to curtail Ms Walton's drinking;
• Ms Walton was sitting at a picnic table on the lawn, and he emptied her glass of wine onto the grass as a protest against her drinking, the drain it had on the family resources and the adverse effect it was having on the children and on Ms Walton's health;
• he did empty her wine glass onto the lawn on one occasion, but not at any other time, and he did not throw it onto the lawn as alleged;

• he did not order Ms Walton to stop associating with any person or attempt to prevent her doing so, but conceded that he requested her to refrain from associating with others, specifically her drinking friends. He felt her association with them was exacerbating her drinking problem;
• he did check phone numbers that Ms Walton had dialled on her mobile phone, but this did not hold any degree of significance to him;
• he did not recall the incident mentioned in the Commissioner's Section 58 documents concerning a telephone call to Ms Walton on or about that time by a friend inviting her to a barbeque;
• he did not cut a wine cask bladder as alleged, but conceded that he emptied the wine it down the sink. He said that it was his wine, for which he had paid, and his disposal of it was an attempt to curtail Ms Walton's drinking at the time.
• Ms Walton attacked him when he emptied the wine down the sink and he held her by the upper arms momentarily to protect himself. He said that he did not shake her;
• the provisional AVO was revoked on 14 January 2010 and the Applicant said that this resulted from Ms Walton acting on her own initiative in recognition of the fact that she had contacted the Police in a state of intoxication, and had made exaggerated allegations and claims as a result;
• as at 8 February 2010 he was at taking medication identified as Oxycontin and Endep. These were prescribed to him as pain killers only, and he was unaware they had any other purpose;
• he was drinking at the time of this incident, but only having a few drinks in the evening to ease stress he was suffering because of the family situation;
• any threats he made were not intended seriously, worded seriously or taken seriously, but again were an expression of exasperation;
• the threats were in the nature of "I'll wring your neck", and the wording attributed to him by Ms Walton in her reports to Police were exaggerated;
• it is his belief that Ms Walton's application for an AVO at the time was used by her as a pressure tactic in relation to Family Court proceedings, specifically custody of their children;
• the friction between the Applicant and Ms Walton resulted primarily from a 3 day drinking binge by Ms Walton, and she was shaking from the effects of this prior to their argument;
• he has no doubt the shaking observed by the Police officer was drink related;
• he may have been moody at the time, as Family Court proceedings were under way. One of the main points on which Ms Walton was aggrieved was the custody issue in relation to the children which appeared to be going against her;
• Ms Walton and the Applicant have now separated, and the circumstances that gave rise to the family friction they experienced no longer exist;
• he now has custody of their two children, with Ms Walton having regular access;
• Ms Walton and he now share an amicable relationship.

1. His evidence before the Tribunal did not vary from his statement in any significant respect.

1. Mr Morgan made oral and written submissions in support of the Applicant's case. Mr Morgan submitted that while the Applicant's recollection of events of 1997 and 1998 was unclear, some discrepancies might be expected. He submitted that in any event the Applicant's firearms licence was subsequently issued without any reference by the Commissioner to those events.

1. In regard to the evidence that Ms Walton gave, the essence of Mr Morgan's submission is that the Applicant's evidence is to be preferred to that given by Ms Walton. The Tribunal should accept that Ms Walton took the draft reference from the Applicant and later typed the reference but that both statements were returned signed by Ms Walton. He argued that it is well within the realms of possibility that, because of her drinking habits, that both statements were returned by her in error.

1. In Mr Morgan's submission, it is obvious that, as the draft reference and the reference are almost identical in appearance, the draft reference was mistaken for the reference by both the Applicant and his solicitor and attached to his 3 November 2010 affidavit in error. The Applicant could not explain how the reference came into existence. His evidence was that he did not check this document when signing the affidavit, but followed his solicitor's directives. He was not aware that there had been a confusion of documents at the time he signed his family law affidavit.

1. Ms Walton's evidence was that she typed the reference herself using the Armidale University facilities, and used the draft reference as a guide, deleting from it those paragraphs with which she disagreed. Mr Morgan submitted that Ms Walton signed the reference without any change to the closing paragraph which indicated she had no concerns should the Applicant regain his firearms licence and firearms. He submitted that the public interest and particularly the public safety is the Commissioner's paramount consideration, and that the evidence shows that the public would not be put at risk should the Applicant be permitted to resume firearm ownership.

1. This is a situation where Ms Walton made certain allegations to the Police which the Applicant denies - it is his word against hers. Mr Morgan submitted that the alleged threats were not reported to the Police for some time, and that while Ms Walton alleged that she suffered fear at the time she gave evidence that she had made physical approaches and verbal attacks on the Applicant during the time the supposed death threats were in force, but prior to the time she eventually reported them to Police. He notes that in the initial incident COP's Event entry Constable Corrigan recorded "Nil fears" under the section recording "Fears held by victim".

1. He further submits that it is a matter for conjecture whether the diary records Ms Walton said she made were made contemporaneously.

1. He argued that the issue of custody was much to the forefront in the family at this time, and that it may reasonably be accepted that this was the motive behind Ms Walton's actions.

1. Mr Morgan also points to the letter dated 23 November 2010 provided by Constable Webb to the Registry Officer in response to a request for information. Constable Webb noted that the Applicant does not appear to have a criminal history in relation to violence and there was no evidence of violence to Ms Walton. Constable Webb does not believe that the Applicant poses a risk to the general community.

1. It is submitted that the Tribunal should find that the allegation of serious threats of violence to Ms Walton by the Applicant were exaggerated or not made, as she made delay in reporting them, and had motive to fabricate the evidence because of her perception that her alcoholism would disadvantage her in custody proceedings. This is strengthened by the fact she did not report the alleged threats for some days, and during that time showed no fear of the Applicant in making verbal attacks and close physical approach to him, and the fact that the Police had no record of any violence at any time in their relationship.

1. Mr Morgan submitted that the Applicant's conduct should be viewed in the context of a man desperate to save the family situation and who had been pushed to his limit by an extended period of time in which alcoholism on Ms Walton's part played a major factor.

1. In relation to the inconsistencies in the evidence, Mr Morgan submitted that the inconsistencies on the Applicant's part are in relation to situations which are in the past and relate to a relationship which has terminated. They do not assist the Tribunal in determining whether the Applicant should he be permitted to have his firearms licence returned.

Discussion

1. The task of the Tribunal is to determine what is the correct and preferable decision, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law: section 63 of the ADT Act. The Commissioner contends that the Applicant is not a fit and proper person to hold the licence.

1. The parties have each referred to a number of authorities which have considered the term "fit and proper". Those authorities include Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 and Sobey v Commercial and Private Agents Board 20 SASR 70.

1. In Australian Broadcasting Tribunal v Bond Toohey and Gaudron JJ, at page 380 said:

"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."

1. At page 388, Toohey and Gaudron JJ explained that:

'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.'

1. In Australian Broadcasting Tribunal v Bond 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. Mason CJ stated that the concept "fit and proper person" should not be construed narrowly.

1. That approach has been followed in this Tribunal. See, for example, Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 where Higgins JM stated at paragraph [22]:

'In my opinion, the term "fit and proper person" in s. 11(3)(a) of the Act should also be given a wide meaning. As stated by Mason CJ the breadth and content of the concept must be derived from the Act and the purposes of the Act. In this case, Parliament has expressly stated what the underlying principles of the Act are. This includes the principle that the possession of a firearm is a privilege and that it is conditional on the overriding need to ensure public safety (see s. 3(1)(a)). Accordingly, the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety. In my opinion Parliament has made this clear with the additional words in s. 11(3)(a) of "... and can be trusted to have possession of firearms without danger to public safety and the peace." That is, s. 11(3)(a) of the Act requires the Commissioner to determine the fitness and propriety of an applicant for a licence by having regard to the Applicant's conduct and whether that conduct is such that he can be satisfied that the Applicant can be trusted to have possession of firearms without danger to public safety or to the peace.'

1. That is, a person's fitness is to be gauged in light of the nature and purpose of the activities that the person will undertake: Hughes and Vale Pty Ltd v New South Wales (No. 2) . Knowledge, ability, moral integrity and the rectitude of character necessary to fulfil the role for which a licence is sought are proper considerations: Sobey v Commercial and Private Agents Board 20 SASR 70. Thus the nature of the industry in which the person concerned wishes to operate affects a consideration of whether a person is a "fit and proper person" to operate in that industry. In Chaining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 at [41] the President of this Tribunal made the following comments on the issue, in the context of the security industry:

'Whether a person is `fit and proper' to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objective leading the legislature to regulate the industry.'

1. In the present matter, issues have been raised in regard to alleged threats by the Applicant towards Ms Walton and in regard to the Applicant's honesty. It is my understanding that the Applicant's knowledge and ability in regard to firearms is not in issue. Nor is it in dispute that Ms Walton indicated that she does not hold fears for her own safety or her children's safety if the Applicant regains his firearms licence and his firearms.

1. I agree with Mr Morgan's submission that the evidence in regard to the Applicant's alleged conduct should be viewed in the context in which it is said to have occurred. Nevertheless, the seriousness of the allegations against the Applicant is a relevant factor to be taken into account. Weighed against that are the Applicant's changed domestic circumstances, the fact that the Applicant has no history of violence and that he has not come to the attention of the police since the time of the allegations.

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

1. In my view, the factors related to public safety should be weighed in the Applicant's favour. I am satisfied that there is virtually no risk to public safety if the Applicant were to regain his firearms licence and his firearms.

1. However, in the circumstances of this matter I consider that the circumstances in which the Applicant submitted the purported reference in his application for internal review is of greater concern.

1. As has been noted above, section 70 of the Act provides that a person must not, in connection with a licence application, provide information that the person knows is false or misleading in a material particular. In my view, it is implausible that the Applicant would not have known that Ms Walton did not agree to the content of the draft reference that he took to her and that he asked her to sign. In particular she was not happy with part of the draft reference that indicated that she had exaggerated the previous information that she had provided to the police. The fact that she refused to sign it at the time he took it to her would have left him in no doubt that she didn't agree with its contents.

1. The signatures on the purported reference and the reference appear to be identical. Clearly, one of those documents is a false document. However, I am unable to make a finding in regard to how Ms Walton's signature came to be on both the reference and the purported reference. In the circumstances I do not need to make that finding as I am satisfied that the Applicant would have known that Ms Walton did not hold the views attributed to her in the purported reference. He has provided that document in support of his application for internal review knowing that it was misleading.

1. Section 24(2)(b)(i) of the Act provides that a licence may be revoked if, in connection with the application for the licence, the licensee supplied information which was, to the licensee's knowledge, misleading in a material particular. Clearly, the 'public interest' requires that licensees provide accurate information in regard to their applications. The success of the firearms licensing regime is dependent on that occurring. The Applicant's individual interest in retaining his licence must be subordinate to the public interest in ensuring the success of that regime.

1. This view 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 the only matters taken into account; to make clear that the interests of the whole community are matters for the Commission's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation."

1. 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". In my view, the above finding supports the view that it is against the public interest for the Applicant to continue to hold a licence.

1. In my view, the correct and preferable decision is to affirm the decision of the Commissioner to revoke the Applicant's firearms licence.

Order

The decision under review is affirmed.

**********

Decision last updated: 18 August 2011