Bancan v Commissioner of Police, NSW Police Force

The issue for determination

1. The issue in the present case is whether the correct and preferable decision is to affirm, vary or set aside the Respondent's decision.
2. This requires consideration of whether the Applicant is a fit and proper person to have a firearms licence, and whether it is contrary to the public interest for the Applicant to do so.

The Tribunal's Approach

1. The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all material first considered, together with any further relevant material to either confirm the original decision, vary it, or set it aside and substitute another. The Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law: section 63 of the Administrative Decision Review Act 1997 ("the ADR Act").
2. The Tribunal makes its own decision in place of the Respondent's, and there is no presumption that the Respondent's decision is correct.
3. These are not adversarial proceedings in which the Applicant carries an onus of proof. By making the application, the Applicant triggers a process of merits review by the Tribunal. He does not take on the responsibility of having to prove a case, nor does he cause the Respondent to have to prove a case. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities.
4. Under section 38(2) of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act"), 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.
5. The Tribunal must exercise its discretion in determining a review in a manner that promotes the principles and objects of the Firearms Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at paragraph [23]. The discretion must be exercised keeping in mind the activities which are authorised by a licence under the Firearms Act.

Applicable legislation

1. Section 9 of the ADR Act provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred by section 75 of the Firearms Act. The Tribunal's jurisdiction includes review of decisions by the Respondent to refuse an application for a firearms licence.
2. This application is made under section 75 of the Firearms Act and the ADR Act.
3. The Firearms Act sets up a scheme to license people to possess and use firearms. One of the underlying principles of the Firearms Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms.
4. The underlying principles of the Firearms Act provided clear guidance as to how it is to be administered generally. Section 3(1) provides: (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.
5. The Commissioner, and therefore the Tribunal, has discretion in regard to the issues to be decided in this matter. The Firearms Act provides no guidance on how that discretion should be exercised. However, in Minister for Immigration and Citizenship v Li [2013] 297 ALR 225, the majority of the High Court stated at paragraph [67]: [W]here discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority [[1998] HCA 28] requires nothing less. ...
6. Section 11(3)(a) of the Firearms Act prescribes that a firearms licence must not be issued unless that 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.
7. Section 11(7) of the Firearms Act provides that the Commissioner may refuse to issue a licence if she considers that issue of the licence would be contrary to the public interest.
8. Section 12(1) of the Firearms Act provides that the Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm. The Applicant's application for a firearms licence nominates his "genuine reason" for a firearms licence as "Sport/Target Shooting" and "Recreational Hunting/Vermin Control". In support of the "Sport/Target Shooting" reason, the Applicant identified that he is a member of a shooting club, specifically, the Sporting Shooters' Association of Australia.

Fit and proper person

1. The Firearms Act places an emphasis on the need for licensees being fit and proper for the role. The Tribunal has considered the issue of whether an Applicant is a fit and proper person to hold a licence under the Firearms Act on numerous occasions.
2. The issue of the Applicant's fitness and propriety is one of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].
3. In the context of the Firearms Act, fitness and propriety "must be considered in the context of at all times ensuring public safety": Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at paragraph [22].
4. The question of a person's fitness to hold a licence is to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake. In the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ 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.
5. They went on to say at 388: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
6. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said: In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.
7. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court discussed the meaning of the term 'fit and proper' (at 156-7): "The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or "idoneus") with respect to an office is said to involve three things, honesty knowledge and ability: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do ; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it" - Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."

Public interest

1. Section 11(7) of the Firearms Act provides: 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.
2. As noted, the Respondent contends that it is not in the public interest for the Applicant to hold a firearms licence. The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence: "25 The "public interest" is an inherently broad concept giving the appellant 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 elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate 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."
3. The 'public interest' allows 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: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.
4. "Public interest' embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to 'the 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 decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.
5. The licensing regime is not about punishment but rather about protecting the public. It 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.
6. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at paragraph [28] Hennessy DP 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. Although Ward was a case on the "fit and proper person" test, the formulation has been held to also apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at paragraph [23].
7. It is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110. Risk to the public includes risk to the Applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.

The material before the Tribunal

1. The Respondent relies on a bundle of material filed pursuant to section 58 of the ADR Act. This material includes a number of records held in the Respondent's electronic database which show that the Applicant was involved in incidents where domestic violence was alleged. The Respondent also relies on the Applicant's traffic record. The Respondent's solicitors also provided written submissions.
2. The Applicant relies on his own evidence and references provided on his behalf. The Applicant also made submissions and he provided a significant amount of material which relates to various historical incidents involving his former wife and his daughter. The incidents to which that material relates all occurred in 2007 - 2008. He also included a psychological report from Dr Brent Waters that is dated November 2010.

The Respondent's case

1. As noted, the Respondent contends that the application should not be granted because of the Applicant's domestic circumstances and because of his history of traffic infringements.

Family law matter

1. The Respondent relies on a family law decision of the Federal Magistrates Court of Australia in which Federal Magistrate Sexton reported a range of incidents complained of by the Applicant's former wife. The Respondent notes that the Federal Magistrate found that: 1. the Applicant was 'obsessed with self-protection'; 2. there had been family violence; and 3. the Applicant at that time and over a long time suffered from an anxiety disorder and had troublesome features in his personality that is unlikely to change.
2. The Federal Magistrate was concerned about the Applicant's mental health state and personal characteristics. The Federal Magistrate's discussion of the Applicant's mental health reveals a number of issues that, if persisting, would be relevant to the issue of his suitability to have access to firearms.
3. For these reasons the Respondent has concerns in regard to the Applicant's mental health and submits that the Applicant would need to provide an up-to-date report in regard to his mental health if the Tribunal is to be satisfied that there is virtually no risk to the public if he has access to firearms.

The Applicant's domestic circumstances

1. As noted above, in 2008 the Applicant was made subject of an AVO to protect his former wife and daughter.
2. The Respondent notes that even before that AVO, the Applicant had a history of interim AVOs with another partner, and that he had been the subject of three interim AVOs and a provisional AVO.
3. The Respondent also notes that Police have been contacted on numerous occasions in relation to the Applicant's behaviour. The Applicant has been the subject of allegations of paranoid behaviour; spitting at his ex-partner and making threats against her, her son and her family; and allegations of intimidating and controlling behaviour against ex-partners, including intimidation involving firearms.
4. However, the Respondent acknowledges that it has been more than 10 years since the Applicant was the subject of an AVO. He has never been charged with an offence, and there are no Police events post-dating 2011.
5. Nevertheless, the Commissioner submits that the Applicant's domestic history would convince the Tribunal that it is contrary to the public interest for the Applicant to hold a firearms licence.

The Applicant's traffic history

1. The Applicant's traffic record is included in the Respondent's material. The Applicant does not dispute the accuracy of the record. The record shows a 35-year period of numerous and frequent infringements of the road rules.
2. The Applicant has been infringing traffic laws since at least May 1986. His most recent infringement was in September 2021. The infringements include, but may not be limited to: 1. speeding, including one instance of speeding by 20-30km/h in a school zone; 2. using a mobile phone while driving; 3. not wearing a seatbelt; 4. disobeying traffic lights; 5. driving while unlicensed; 6. overtaking a vehicle unsafely, without clear view of approaching traffic; 7. making an unlawful U-turn; and 8. driving contrary to a stop sign.
3. The Respondent noted that the most recent instance of speeding was detected while the Applicant was the subject of Good Behaviour Conditions.
4. The Respondent submits that this pattern of behaviour is cause for serious concern as it is indicative of a lifelong disregard for the law. The Respondent submits that, for at least 35 years, the Applicant has maintained a course of conduct which shows a disregard for public safety, including his own. Further, he seems to fail to appreciate the seriousness of this behaviour.
5. The Respondent points to views that I expressed in O'Brien v Commissioner of Police [2022] NSWCATAD 259. In that matter I stated at paragraphs [57] - [59: 57 The issue for determination is whether it would be contrary to the public interest to grant the licence. This question arises because of the Applicant's traffic record. The extent of the record is not in dispute and the Applicant concedes that his record is bad. 58 The Commissioner is concerned that this history demonstrates a disregard for public safety and his own safety as well as a disregard for a regulatory scheme aimed at ensuring public safety. I share that concern. 59 I have referred to a number of decisions of this Tribunal which have dealt with similar issues. I agree with the Applicant that none of those cases have facts that are identical to this matter. However, it has been widely accepted that while it is impossible to say with certainty how any individual will behave in the future, prior conduct can provide some guidance. In that regard I do not agree with the Applicant's submission that it is unfair to compare a lack of compliance with traffic laws and the likelihood that he might adopt a similar view towards compliance with firearm legislation.'
6. The Respondent submits that in this matter, given the Applicant's longstanding disregard for the traffic regulatory scheme, the Tribunal cannot be satisfied that the Applicant may not disregard aspects of the firearms regulatory scheme. That is a real and appreciable risk to public safety.
7. The Respondent further submits that, on that basis, the Tribunal would be satisfied the Applicant is not a fit and proper person and therefore cannot issue the Applicant a firearms licence, or alternatively it is not in the public interest for the Applicant to hold a firearms licence and so it should not be issued.

The Applicant's case

1. The Applicant has provided a significant amount of material that relates to incidents concerning his former wife and his daughter. In particular he has provided material in relation to the AVO that was put in place from April 2008 and to the Family Law proceedings. A significant amount of time has passed since those issues arose. He maintains that he is not a violent person.
2. The Applicant's position is that he has moved on with his life. He has a new wife who he married in 2018. He contends that the fact that he has moved on is supported by the absence of any police involvement in recent years.
3. In regard to his mental health, the Applicant stated that he had a mental breakdown when he was 25 years old as a result of a house fire. He had a relapse when he was about 30 years old but has not had any since then - a period of about 30 years.
4. The Applicant gave detailed information about the steps that he had taken in relation to his health issues. He noted some traumatic aspects to his childhood and that he had continued to seek help into his adulthood. His most recent psychological treatment was approximately 10 years ago.
5. He has suffered a number of other conditions including a virus which resulted in hospitalisation, chronic fatigue, heart problems and anxiety. However, he denies that he has any mental illness. He also gave evidence that his health issues have stabilised.
6. In regard to his traffic record, the Applicant accepts that it is not a good record, and he is not proud of it. However, he contends that he has driven an extremely high number of kilometres in his employment and in those circumstances he submitted that the offences are minor.

Consideration

1. This is a matter in which there are historical issues concerning the Applicant's mental health. The material that relates to those issues is not current. The Applicant asserts that he has no mental health issues however, this assertion is not supported by any current psychological reports.
2. I agree with the Respondent that it is not the Tribunal's role to re-adjudicate the AVO application or re-hear any of the matters in relation to the Applicant's former wife and daughter. I note that a significant amount of time has passed since those issues arose, and it is possible that the issues that were identified by the Federal Magistrate are no longer applicable.
3. However, the Applicant has not obtained a recent psychological report to address those concerns. In the circumstances there is no material on which I could determine that there are no mental health issues that might impact on public safety should the Applicant have access to firearms.
4. I agree with the Respondent's submission that the Applicant would need to provide an up-to-date report in regard to his mental health if the Tribunal is to be satisfied that there is virtually no risk to the public if he has access to firearms.
5. The issue of public safety also arises because of the Applicant's traffic record. The extent of the record is not in dispute and the Applicant concedes that his record is bad.
6. I agree with the Commissioner's concerned that this history demonstrates a disregard for public safety and the Applicant's own safety as well as a disregard for a regulatory scheme aimed at ensuring public safety. I share that concern.
7. A number of decisions of this Tribunal have dealt with similar issues. It has been widely accepted that while it is impossible to say with certainty how any individual will behave in the future, prior conduct can provide some guidance. In that regard comparisons have been made between a lack of compliance with traffic laws and the likelihood that an applicant might adopt a similar view towards compliance with firearm legislation.
8. The immediate difficulty that the Applicant's history of traffic infringements poses is that it has continued over a very long period.
9. As has been noted above, the history of traffic offences has extended for a 35-year period with numerous and frequent infringements of the road rules. His most recent infringement was in September 2021. There does not appear to have been a change in the Applicant's conduct in the recent past, nor is there any suggestion of a change of attitude towards compliance with the traffic laws.
10. I note the Applicant's evidence that he now has a stable family life. In the circumstances there is reason to be hopeful that he would adopt a responsible attitude to firearms if he were to be given the opportunity of holding a licence.
11. Nevertheless, I remain concerned that the progress he has made has been over a relatively short period.
12. In my view, he would benefit from completing a program designed to increase awareness of the consequences of dangerous driving practices and reduce the likelihood of re-offending, For example, a Traffic Offender Intervention Program. The information and skills necessary to develop positive attitudes towards driving may assist in developing positive attitudes towards becoming a safe, responsible firearms user.
13. However, at this time, on the material that is before me, I am not satisfied that it is in the public interest for the Applicant to hold a licence under the Firearms Act. I do not need to consider whether the Applicant is a fit and proper person to hold a firearms licence.
14. That being the case, the correct and preferable decision is to affirm the decision to refuse the licence application.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 13 March 2023