Ashby v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2024-08-05

Introduction

Marcus James Laidley Ashby (the Applicant) seeks to have a firearms licence in the Category AB restored. The reason he wants the licence is for recreational hunting and vermin control, including for vermin control during his work in agricultural aviation.
The Commissioner of Police (the Respondent) revoked the firearms licence because the Respondent was not satisfied it would be in the public interest for the Applicant to continue to hold a licence based primarily on a serious traffic incident occurring in September 2023 (the incident).
The Respondent made the original revocation decision on 9 January 2024 and at the Applicant's request conducted an internal review. On 15 March 2024 the Respondent's internal review affirmed the original decision.
The Applicant seeks review of the decision to revoke his firearms licence.

Material before the Tribunal

The application for review attaching the internal review reasons was before the Tribunal. The Applicant provided three affidavits, each of the Applicant, his wife and Mr Bill McNally, one bundle of documents and written submissions to the Tribunal and the Respondent.
The Respondent provided two bundles of documents filed under s 58 of the Administrative Decisions Review Act 1997 (the ADR Act) and written submissions to the Tribunal and the Applicant.

Applicant's case

The Applicant contends his firearms licence should be restored because he is no risk to public safety. The Applicant submits he is of good character, the incident was an isolated mistake and he requires firearms to hunt recreationally and to control vermin for his business and property.

Respondent's case

The Respondent contends the correct and preferable decision is to affirm the revocation decision because granting a firearms licence to the Applicant would not be in the public interest (relying on s 11(7) of the Firearms Act 1996 (the Firearms Act)) primarily on the basis of the Applicant's conduct during the incident but also because the Applicant's licence previously lapsed in 2020 and the NSW Police were required to seize the Applicant's firearms at that time.

Jurisdiction

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

Administrative Review

When considering an application for review the Tribunal is to decide what is the correct and preferable decision having regard to the material before it (s 63(1) of the ADR Act). In doing so the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) of the ADR Act). The time at which the correct and preferable decision is determined is when the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].
The Tribunal may decide to affirm or vary the administratively reviewable decision, or set it aside and either substitute a different decision or remit the matter to the administrator for reconsideration: see s 63(3) of the ADR Act.
The Tribunal is required to base its findings of fact on logically probative material: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62 and 68; and Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 at [5]-[8], [15]-[17].

Relevant Legislation

The underlying principles of the Firearms Act are set out in s 3 and include: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety - (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms…
Section 11 of the Firearms Act allows the Respondent to issue or refuse a firearms licence application relevantly providing: (3) A licence must not be issued unless - (a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and … (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.
Section 24(2)(a) of the Firearms Act relevantly allows the Respondent to revoke a firearms licence for any reason for which an application for a firearms licence would be required to be refused for the same type of licence.

Applicant's history

The Applicant operates an agricultural aviation business in regional NSW. Since 2014 he has held a Category AB firearms licence in NSW. He holds a commercial pilot's licence and contributes to his local community. Aside from the matters discussed in these reasons, on the material before the Tribunal, I am satisfied the Applicant is otherwise of good character.
The Applicant has a historical criminal record in another jurisdiction for offences including common assault and damage to property occurring decades ago. That historical record is of very low weight in these proceedings because the offences occurred a long time in the past.
In January 2020 the Applicant's firearms licence lapsed when he was unable to attend to his licence renewal in person. While the Applicant made an attempt to contact a police officer he knew, he did not otherwise make arrangements for his firearms following the lapsing of his licence and officers of the Respondent were required to seize the Applicant's firearms, which were returned as soon as the firearms licence was reinstated. While no regulatory action was taken at the time, this issue is a relevant consideration in this review because it demonstrates the Applicant's failure to observe firearms licensing scheme requirements. As a single event it carries low to moderate weight in this review.

The incident

On the evening of 28 September 2023, during a time of some stress in the Applicant's life, the Applicant consumed several alcoholic drinks over a period of 90 minutes and then drove his car with a child in the front passenger seat. While driving the Applicant failed to stop for police and instead accelerated away from police. A pursuit occurred over approximately six kilometres where the Applicant drove at speeds of over 140km/hr in a 100km/hr speed zone.
As a result of the incident the Applicant was convicted of two offences: driving with a low range prescribed concentration of alcohol, and driving recklessly and failing to stop during a police pursuit. The Applicant's driving licence is also disqualified until November 2024 and the Applicant was subject to a six month community corrections order that has now expired.
I am satisfied the Applicant has taken responsibility for his conduct, including by his early guilty plea, and is remorseful for the incident. I am also satisfied the Applicant now understands the interrelationship between the firearms licensing regime, driving offences and public safety and I draw no inferences from observations he made in the application for review.
Further, I note the Applicant's previous clean driving record since he moved to NSW in 2014 and apart from the 2020 licence lapse issue discussed above at [19] his history in relation to firearms, including during safety inspections is good.
Since the Applicant's firearms licence was revoked, his business has continued to operate profitably and effectively, although I accept the Applicant's evidence this is not without inconvenience because, consistent with the evidence of Mr McNally, the Applicant is unable to shoot vermin and must instead employ other methods or rely on others to drive vermin away from airstrips.

Public safety and risk

Under the Firearms Act, public safety is the primary consideration: Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134. The interest of an applicant in obtaining a firearms licence is subordinate to that consideration: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 at [69].
In Ward v Commissioner of Police [2000] NSWADT 28 Deputy President Hennessy said (at [27] - [28]): …The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.

The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.

In addressing the assessment of risk an applicant is not required to prove a near-absolute negative, instead the assessment is to occur in a "nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety": see Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 where the Tribunal discussed Ward and other authorities (at [64] - [66]).

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

The term public interest is not defined in the Firearms Act. In Constantin v Commissioner of Police [2013] NSWADTAP 16 the Appeal Panel stated (at [33]): The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.
The incident occurred recently, in the past 12 months, and the Applicant remains disqualified from driving. Both the firearms licensing and traffic regulatory scheme focus on public safety (Himo v Commissioner of Police [2021] NSWCATAD 321 at [102]) and it could be considered incongruous for the Applicant to hold a firearms licence while being disqualified from driving as a result of the incident. However, in this review the Tribunal is required to perform a separate and distinct assessment of the public interest in relation to the Applicant holding a firearms licence.
During the incident the Applicant failed to stop for police and drove while drunk at excessive speed on a public road putting himself, a child, officers of the Respondent and the public at significant risk of harm. I am satisfied the Applicant has demonstrated through that conduct a disregard for the law and for regulatory schemes which are designed to protect public safety in relation to driving: see Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145 at [81].
Further, I am satisfied the Applicant's conduct during the incident was of such seriousness in its disregard for public safety that it is not in the public interest for the Applicant to hold a firearms licence at this time.
In all the circumstances, on the material before the Tribunal, I am therefore satisfied it is not in the public interest under s 11(7) of the Firearms Act for the Applicant to hold a firearms licence.
It follows that the correct and preferable decision is to affirm the decision of the Respondent to revoke the Applicant's firearms licence.

Order 1. The decision under review 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 August 2024

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Judgment (14 paragraphs)

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Cases Cited (8)