Bohlsen v Commissioner of Police, NSW Police Force

Background

1. It is not in contest that the Applicant has held a category AB firearms licence since 24 August 1998. He has held that licence continuously during that period. From 26 February 1993 to 24 August 1998 the Applicant held a one shooter firearms licence under the old legislative regime. Apart from the following two incidents, there is no evidence that the Applicant has come to the attention of the Commissioner or any other authority concerning any misuse of his firearm or non-compliance with the firearms legislation.
2. It is not in dispute that in October 2013, the Firearm Registry received a complaint from a neighbour of the Applicant, that he had been firing shots along the boundary fence within close proximity to domestic animals and other residential premises. The Firearm Registry sent to the Applicant a show cause letter stating that at that time he was not authorised to practice vermin control on his property. In that regard, the Applicant had not previously supplied sufficient information to the Firearm Registry to meet his genuine reason. The show cause letter included the following: 'I acknowledge you may require the use of firearms to kill vermin within this property. However, I note you did not provide any documentation with your reapplication information which states you wish to use firearms for this purpose (shooting vermin on your property), nor did you provide any details of the 'safety measures' you will take to ensure public safety (i.e. the safety of the persons and animals who reside in neighbouring properties). As such, I advise you are not currently authorised to possess and use firearms on your property for vermin control at this time.'
3. Subsequently, the Applicant provided information to address the concerns raised in the show cause letter in support of his use of firearms on his rural property to control vermin.
4. Relevantly, in responding to the show cause letter the Applicant identified that 'to continue with public and livestock safety and ensuring no stray bullets enter neighbouring properties, I will ensure I shoot towards my property with my back facing any fence lines, not aiming or facing toward any neighbouring properties; as well as continue with the use of low velocity bullets'. The Commissioner submits that the Applicant's conduct in 2013 amounted to use of his firearms for a reason that was not the genuine reason for which he had held the licence. Further, the Respondent contends that the relevance of the 2013 incident is that, for similar reasons, the Applicant came to the attention of police in 2021 for a similar incident.
5. On 26 October 2021 (the October 21 incident), NSW Police was notified by the Applicant's neighbour that he had entered their land and fired shots from his firearm. The relevant facts are contained in the statement of facts tendered to the Local Court in relation to the subject charges: 'The accused and victim's property share an common boundary which is fully fenced. Both properties are several acres in size with several dams within both properties. At 4.00 p.m. on Tuesday the 26th of October, 2021 both [name] and [name] were not at the location. [Name] there [sic] 14 year old daughter was riding her horse on an adjoining paddock close to a dam. At this time the Accused's dog began chasing a large kangaroo. The dog continued chasing the Kangaroo [sic] onto the victim's property. The Kangaroo [sic] jumped in a large dam on the victim's property. The Accused chased after the dog in an attempt to stop if from chasing the Kangaroo [sic]. At this point the Kangaroo [sic] and the Dog [sic] engaged in a physical altercation with the Accused and ran back to his house and grabbed one of his rifles and entered the victim's property by climbing through the fence, the Accused ran to the dam where the Kangaroo [sic] had dragged the dog on the victim's property and began shooting at the Kangaroo [sic]. The Accused states he fired about 3 to 4 shots. The Accused returned to his property. The Kangaroo [sic] was left in the dam deceased and the dog returned home. At the time of the incident the Victim (the child) (14 years) was riding her horse about 500m away from where this incident occurred.'
6. On 27 May 2022, the Cessnock Local Court found both offences proven (without conviction) and the Applicant was sentenced to a conditional release order without conviction for twelve months for the offence 'fire firearm into building or onto inclosed lands - T2'. The offence of enter inclosed land without lawful excuse was dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999.
7. It is not in contest, and admitted by the Applicant in his evidence, that his dogs had been escaping and entering the neighbour's property for some months prior to this event occurring.
8. Following the 2021 incident being finalised before the Local Court of New South Wales, the Commissioner moved to revoke the Applicant's category AB firearms licence.
9. In the documents produced under s 58 of the ADR Act by the Commissioner is the Applicant's traffic record report. The report records the Applicant being granted a provisional licence on the 11th of November 1986. He was charged with negligent driving on the 2nd of December 1986 and issued an unrestricted licence on 18 November 1987. Between 1990 and 2010 the Applicant was fined on 5 occasions for speeding. Two of those offences related to exceeding the speed limit by more than 15 kilometres but not more than 45 kilometres per hour. He was also detected once for disobeying traffic light. On 14 April 2010, the Applicant's unrestricted class C licence and unrestricted class R licence were suspended for an offence on 26 February 2010 exceeding the speed limit by more than 30 kilometres but not more than 45 kilometres per hour. The Applicant challenged that suspension on the 18th of June 2010 at the Newcastle Court. His suspension was reduced to 8 weeks. From 2011 to date the Applicant was twice fined for driving a motor vehicle exceeding the speed limit by more than 20 kilometres per hour but not more than 30 kilometres per hour. Since December 2018 there are no other traffic offences recorded on the Applicant's traffic record.
10. The Commissioner contends the Applicant's traffic record is relevant in so far as it indicates a disregard for a regulatory scheme designed to ensure public safety and to the law generally. In that regard, traffic laws and the firearms legislation are both directed towards ensuring public safety. The Commissioner submits that the Applicant's traffic record raises concerns about his ability to abide by legislation, but more importantly when it comes to the breach of regulations regarding public safety, and whether he should be entitled to the privilege of holding a firearms licence.

Issues for determination

1. The Tribunal is to determine whether the correct and preferable decision is to refuse the Applicant's firearms licence application.

Applicable legislation

1. Section 9 of the ADR Act provides the Tribunal with jurisdiction to review of a decision of an administrator where 'enabling legislation' enlivens the Tribunal's administrative review powers. 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 Commissioner 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. 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.
4. 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. ...
5. Section 11(3)(a) of the Firearms Act prescribes that a firearms licence must not be issues unless 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.
6. Section 11(5)(d) of the Firearms Act provides a basis for mandatory refusal, when it comes to a revocation of a licence under s 24 of the Firearms Act. The Commissioner, and the Tribunal on review, retains a discretion to revoke a firearms licence where a person is subject to a conditional release order. Relevantly s 11(5)(d)(iii) provides: A licence must not be issued to a person who - … (d) is subject to one of the following in relation to an offence prescribed by the regulations - … (iii) a conditional release order imposed in New South Wales …
7. It is not in contest in this application that, pursuant to clause 5 of the Regulation, offences related to firearms or weapons, like the offences with which the Applicant was charged and dealt with by the Cessnock Local Court, are prescribed offences and therefore trigger the mandatory prohibition under s 11(5)(d)(iii).
8. 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.
9. Section 24 of the Firearms Act, relevantly provides: 24 Revocation of licence … (2) A licence may be revoked - (a) for any reason or which the licensee would be required to be refused a licence of the same kind …
10. In these circumstances, the question for the Tribunal in this matter is whether or not the decision to revoke the Applicant's licence is the correct and preferable decision having regard to s 24(2)(a) in its statutory context, which includes exercising the discretion in a way that promotes the principles and objectives of the Act (Cruickshank v Commissioner of Police [2022] NSWCATAD 115 at [29]; Grant v Commissioner of Police [2020] NSWCATAD 158 at [31]).

Fit and proper person

1. The Commissioner must not issue a firearms licence to the Applicant unless 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": s 11(3)(a) of the Firearms Act.
2. It is clear from those provisions that being a fit and proper person is a central consideration in the firearms licensing regime.
3. In discussing the meaning of the expression "fit and proper person", Toohey and Gaudron JJ said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321: 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.
4. Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence (see - Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184).
5. Public interest considerations play a role in the assessment of fitness and propriety (see - Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65 at [37]) and Smith at [30]).
6. In the context of the Firearms Act, fitness and propriety "must be considered in the context of at all times ensuring public safety" (see - Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at [22]).

The public interest

1. The term "the public interest" has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court 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."
2. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at paragraph [33] the Appeal Panel said that: "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."
3. In Cusumano v Commissioner of Police [2001] NSWADT 50 at paragraph [23] Deputy President Hennessy 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."
4. This approach has been applied consistently in matters where the reviewable decision is to refuse to grant a licence. That is, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.
5. Section 3 of the Firearms Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community's interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at paragraphs [27] - [28] Deputy President Hennessy, as she then was, said that in terms of public safety: "27 …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. 28 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."
6. Ward v Commissioner of Police dealt with the issues of whether the applicant was a "fit and proper person" to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at paragraphs [130] - [134].
7. The question of risk is not, however, to be approached in an absolute or mechanistic way, but in a nuanced way, taking account of all the circumstances, including attitudes, character, and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at paragraphs [64] - [66].
8. An appreciation of the Applicant's entire history, and not just the Applicant's recent conduct, is important to the public interest considerations. Even if an applicant has not been convicted or charged by the police for a long time, firearms ownership is a privilege and is generally not available to people who have demonstrated a disregard for public safety (see White v Commissioner of Police, NSW Police Force [2022] NSWCATAD 336 at [40]).
9. In determining these issues, 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 considered. Minimal, fanciful, or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at paragraph [32].
10. The Respondent has lodged a bundle of documents pursuant to section 58 of the ADR Act. Section 58(1)(b) of the ADR Act requires the administrator whose decision is the subject of an application for review to lodge with the Tribunal, within 28 days after receiving notice of the application, a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application to the Tribunal.

The material before the Tribunal

1. As noted, the Commissioner relies on a bundle of material filed pursuant to section 58 of the ADR Act ("the section 58 documents") on 23 May 2023. This material includes a number of records held in the Respondent's electronic database ("COPs"). The Respondent relies on records pertaining to previous interactions with officers and delegates of the Commissioner involving 2013 and 2021 incidents. The Commissioner filed written submissions.
2. The Applicant relies on his application, a one page statement and annexed documents. He also relies on the submissions made to the Commissioner in the request for an internal review of the decision on 26 January 2023, which includes, certification of his completion of a course in firearms legislation on 25 November 2002, two character references, a police statement of Senior Constable Fawkner and his response to the show cause letter.

The Respondent's case

1. As noted above, the Applicant's category AB firearms licence was revoked. Despite requesting an internal review of that decision, the Commissioner did not finalise that request within the prescribed time period. The Applicant applies to this Tribunal for external review of the decision to refuse the licence.
2. The Commissioner relies upon the following facts to support the conclusion that it is contrary to the public interest for the Applicant to hold a category AB firearms licence.

A licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind

1. The Commissioner revoked the Applicant's firearms licence pursuant to s 24(2)(a) of the Firearms Act, which prescribes 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. The Commissioner relies upon s 11(5)(d)(iii) of the Firearms Act, which prescribes that she must not issue a licence to a person who is subject to a conditional release order imposed in New South Wales in relation to an offence prescribed by the Regulation. Reference is made to clause 5 of the Regulation which provides that an offence relating to the possession or use of a firearm is prescribed for this purpose.
2. In deciding to exercise a discretion to revoke the Applicant's firearms licence on this basis, the Respondent has taken into consideration the seriousness of the nature of the Applicant's offending and the underlying public safety principles of the Act as set out in s 3(1). The Commissioner contends that the legislative regime requires strict compliance regarding the possession, use and storage of firearms as non-compliance can potentially result in disastrous consequences. In consideration of the Applicant having been the subject of a conditional release order for an offence involving the possession or use of a firearm, the Commissioner decided to exercise the discretion to revoke his firearms licence on the basis that it would have been refused if an application were to be made of the same kind pursuant to the operation of s 11(5)(d)(iii) of the Firearms Act.
3. The Commissioner contends the following contextual matters to be considered having regard to s 24(2)(a) include: (a) the underlying principles and objectives of the Act, which includes improving public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and reasonable storage of firearms (s 3(1)(b) of the Firearms Act); (b) the strict controls under the Firearms Act are extensive, and relevantly include: (i) providing broad powers to restrict the issuing of licences (s 11 of the Firearms Act); (ii) providing strict registration requires in Part 4, including offences relating to unregistered firearms; (iii) providing an offence for possessing an unregistered firearm pursuant to s 36(1) of the Act and an offence for possessing a firearm where they were not authorised to do so by licence, pursuant to s 7A(1) of the Firearms Act; (iv) providing strict safety requirements in Part 4, including an overriding obligation in s 39 to take 'all reasonable precautions' to ensure safekeeping and that firearms do not come into the possession of unauthorised persons; (c) the licensing regime under the Firearms Act is therefore emphatically concerned with protecting the public, and 'making decisions that are consistent with a need to reduce any risks to a minimum' (see Petas v Commissioner of Police, NSW Police [2013] NSWADT 137 at [36]). (d) public safety is to be given paramount consideration, and the public needs to be confident that those who are afforded the privilege of a firearms licence will comply with the legislative requirements.
4. In respect of the public safety concerns and the public interest considerations, the Commissioner contends that the use of discretion to revoke the Applicant's firearms licence relates to him having committed an offence involving firearms. The Commissioner contends 'the public was directly put at risk with his conduct, and it is of serious concern that the incident occurred in close proximity to the Applicant's young neighbour who was riding her horse nearby. The fact that the Applicant has committed an offence involving firearms is a factor which must have heavy weight in determining risk (see Reid v Commissioner of Police, NSW Police Force [2021] NSWCATAD 291 at [56]).'
5. The Commissioner submits that it would be anomalous to allow a person subjected to a conditional release order to continue to hold a firearms licence where another person would be refused in the same circumstances. The Commissioner submits 'in such circumstances, it is also submitted that the Applicant's proven offending should not be treated anomalously to the extent that he should be allowed to continue to hold a firearms licence where the same conduct would require mandatory refusal of a new firearms licence application.'
6. The Commissioner contends that the Applicant did not put in place a plan to prevent his dog from escaping from his property such as ensuring that the dog was appropriately leashed. The Applicant was aware after at least a number of months of the propensity of his dogs to leave his property and despite this took inadequate action from this being able to occur. The Commissioner submits that significant concern must be attached to the fact that this is not an isolated incident and refers to the Applicant's conduct relating to the 2013 incident.
7. The Commissioner also raises concerns that with respect to the 2013 incident, the Applicant subsequently provided information to address the concerns raised in the show cause letter which, the Commissioner asserts is evidence that the Applicant had an insufficient understanding of his obligations of firearm ownership and use as he admitted that he had 'assumed' that he was 'entitled' to use firearms on his property. This is despite not having provided the genuine reason to kill vermin within his property in the firearms licence application process. The Commissioner draws the Tribunal's attention to the fact that in both the 2013 and 2021 incidents, the Applicant's conduct amounted to use of his firearm for a reason that was not the genuine reason for which he held the licence. In respect of the 2021 incident, the Applicant shot and killed a kangaroo, a protected species in New South Wales, without holding a permit from the NSW Department of Planning and Environment.
8. The Commissioner further notes that in responding to the show cause letter in 2013, the Applicant indicated that he would ensure that he would not aim or face towards any neighbouring property in using his firearm. Despite this, the Commissioner contends that the 2021 incident was in similar circumstances to the 2013 incident and that the Applicant has entered the land of his neighbour and discharged his firearm.
9. As set out above, the Commissioner contends that the Applicant cannot be trusted to abide by the firearms legislative regime in light of his continued failure to comply with the motor vehicle licensing legislative regime. In this regard the Tribunal's attention is drawn to the numerous speeding and other traffic offences which are contained in the Applicant's traffic record. The Commissioner seeks to draw a parallel between the inability of the Applicant in adhering to a similar regulatory regime in terms of his failure to comply with motor vehicle laws and the likelihood of his inability to comply with the firearms legislation in the future.
10. The Applicant relies heavily on the decision of Reid v Commissioner of Police, NSW Police Force. In those proceedings, Senior Member Ransom ordered that the applicant's firearms licence be restored to him despite being subject to a conditional release order in relation to a prescribed offence. The Commissioner contends that the facts in Reid are distinguishable for the following reasons: (a) The Tribunal noted in Reid that 'prior to [the] incidents, no concerns [had] been raised about his ability to have a firearms licence' (at [54]). In contrast, in these proceedings, as identified above, police had previously raised concerns about the Applicant's suitability to hold a firearms licence when issuing a show cause notice in 2013. (b) In Reid, the applicant had 'notified police immediately he realised his error' and 'acted immediately he became aware of the loss of the firearms'. In these present proceedings, the Applicant did not take steps to address or disclose the situation following the incident involving the kangaroo until after police attended his residence on 28 October 2021. (c) The Tribunal in Reid decided that there was 'no evidence, however, that there had been a pattern of conduct on Mr Reid's behalf that would mean he is generally unaware of his obligation with regard to firearms or dismissive of them'. Conversely, in these proceedings, the Applicant's firearms licence history has not been without blemish as he previously demonstrated an inadequate understanding of the legislation he is meant to strictly abide by.
11. In terms of the public interest, the Commissioner relies upon s 24(2)(d) of the Firearms Act which prescribes that a licence may be revoked for any other reason prescribed by the Regulation. Section 20 of the Regulation prescribes that the Commissioner may revoke a licence if satisfied that it is not in the public interest for the licensee to continue to hold the licence.
12. The Commissioner submits that the Applicant has demonstrated a poor attitude to the firearms regulatory scheme that is designed to ensure public safety. In that in 2013 and 2021, his conduct is indicative of his inability to carefully abide by the firearms legislation and demonstrate that he appears to have an understanding of the requirements for firearms possession. In the contrary, his conduct indicates a lack of such understanding. The Commissioner submits that the Applicant's past conduct is an important guide in assessing likely future conduct (see Cooper v Commissioner of Police [2022] NSWCATAD 195 at 60; Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141]).
13. The Commissioner submits that the Applicant should not be afforded the privilege of being able to hold a firearms licence. This is because public safety is the primary issue of concern which must outweigh his individual privilege to possess and use a firearm. The Commissioner submits that the finding cannot be that there is virtually no risk to public safety should the Applicant be able to maintain to hold a firearms licence. For similar reasons the Commissioner submits that the Applicant is not a fit and proper person to hold a firearms licence where public safety cannot be maintained and where it cannot be said that the Applicant poses virtually no risk to public safety.

The Applicant's case

1. The Applicant provided a statement dated 21 June 2023. The statement is short in nature and I relevantly set it out: '… 2 In October 2013 the police were notified alleging that I had been shooting on my land endangering the public, to which I demonstrated to attending officers that I had a good understanding of the safe handling procedures and use of firearms to ensure public safety. 3 There was no evidence that I had been shooting over the boundaries of my property, some 30 acres, and I had produced a dead rabbit that I had shot confirming the same. 4 In October 2021, I made the decision to rescue my dog from being drowned by a kangaroo in a neighbour's dam, adjoining my property, which required me to enter that property and shoot the kangaroo in that dam. 5 I raised the self-defence argument to the charge in the Local Court hearing of the matter, though as my dog has previously chased a kangaroo onto the neighbour's property, the Presiding Magistrate ruled that I had not taken all reasonable precautions to prevent that occurring again and that on that basis the self-defence argument had been negatived. 6 I am very sorry to all involved. 7 Since then, I have completed a course in firearms legislation in NSW to improve my general knowledge of firearms laws and my responsibilities as to matters of safe storage, transportation, use/carriage/possession of firearms. 8 I found the course to be enlightening and I have learnt a great deal from it, and will certainly not make that mistake again, nor ever do I plan offend in the future.'
2. He submits that the Tribunal should set aside decision to revoke his firearms licence. The Applicant relied upon his written submissions made to the Commissioner in respect of the request for internal review of the decision and oral submissions made by his solicitor at the hearing.
3. He acknowledges he made a "spur of the moment decision based upon the need to save an animal." He has undertaken an advanced course on legislation related to firearms safety and improved his knowledge and understanding I that regard. This, he submits, will ensure a similar incident will never occur again.
4. He refers to the basis of the learned Magistrate's decision resting upon the fact that there had been a prior occurrence of an issue with the kangaroo and the dam, and, that he should have taken appropriate action to ensure this would not re-occur. He submits that he accepted the judgement with humility, acknowledging that his dog had previously chased Kangaroos and he told the court that he would ensure the dog was appropriately leashed in the future.
5. Acknowledging that firearms were involved in this incident, the applicant says he made a judgement that did not reflect on the misuse or wrongful use of a firearm, rather that step should have been taken to ensure that his dog did not run off after Kangaroos. The use of a firearm was secondary.
6. He refers to the case of Reid v Commissioner of Police, NSW Police Force, which highlights two aspects. The first, where an offence is found proven without actual intent (in Reid where the applicant inadvertently left his pistol beside the road), as in this matter, not foreseeing the dog chasing a kangaroo into a dam, and secondly the setting aside of the decision to revoke a firearms licence when the Applicant was still the subject of a bond. Similarities are sought to be drawn between the decision in Reid and this application. Suffice to say that the breach in this application which related to the Local Court proceedings was a breach of the Crimes Act 1900 as opposed to a breach of the Firearms Act in Reid. At the Local Court hearing self-defence was raised regarding the 2021 incident. It is submitted that the defence was accepted but negatived by the Court because of the previous escape of the dog. While I accept the distinction sought to be drawn between the Crimes Act and the Firearms Act, the undisputed fact remains, that the Applicant was charged with an offence involving the use, or issue, of a firearm.
7. The Applicant contends that the 2013 incident, was not similar to the 2021 incident, because the 2013 incident related to possibilities which it was not established that he was doing something wrong. The Applicant submits he was acting safety and within the limits of the Firearms Act. The 2013 incident was a complaint of him shooting on the property. There was no condition placed on his licence about shooting on that property. He says this is reflected in the Commissioner renewing his firearms licence on a number of occasions since the 2013 incident.
8. The Applicant contends that he has a clean record, and that there was no issue with respect to his storage of firearms. I accept this, except in relation to the 2013 and 2021 incidents. He submits that he has a genuine and keen interest in shooting activities. Due to the Applicant participating in the firearms course, he says that he is now aware of his obligations in relation to the offending, noting that he commits to leashing any dogs he owns in the future.
9. Regarding the Applicant's participation required for an approved member for hunting club, he submits that Cl. 108 of the regulations is applicable. The evidence is that he undertook inland hunting activities, which may not relate to Sporting Shooters' Association of Australia ("SSAA") sanctioned hunts, while the SSAA does not reveal participation requirements, there was compliance with the regulations through other means.
10. The Applicant contends that his greatest strength is that he has held a firearms licence for 30 years. It was not until 2021 incident that any question was raised about his suitability to continue to hold a licence. In that regard, the Applicant submits that he had a valid reason to shoot the kangaroo at that time. While I accept this general submission, what is absent is any explanation of whether the Applicant considered the dangers of acting impulsively, and, if he did, what risk factors he considered before firing a number of shots at the kangaroo on another person's land.
11. He further submitted that any reference made to the Applicant's is traffic history does not cross the threshold as a standalone reason to cancel the licence. The Tribunal would find that the traffic history is not significant such that it would count to revoke a firearms licence. I accept this submission.

The Applicant's oral evidence

1. The Applicant adopted his written statement made 21 June 2023.
2. He accepted that he entered a guilty plea to the two offences being fire firearm into building or onto inclosed lands and enter inclosed lands without lawful excuse. He received a sentence of a conditional release order without conviction for 12 months in relation to the first offence. And a dismissal pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 in relation to the second offence.
3. The Applicant agreed with the admissions contained in the police facts concerning those offences. Those being that he trespassed onto his neighbours land and shot the kangaroo. he said he acted impulsively and that he did not attempt to communicate what happened to the neighbour between the time he shot the kangaroo and when the police attended on 28 October 2021. He accepted that there had been problems with dogs escaping over the boundary fence a couple of times prior to him shooting the kangaroo on 26 October 2021. He said he was trying to fix the fence to prevent the dogs escaping from his property, but he had not finished that work before the incident occurred. Now, the fence is fixed and the Applicant keeps his dogs on a chain to prevent their escape from his property.
4. The Applicant agreed that in 2013 he was sent a show cause notice by the fire arms registry for failing to provide genuine reasons for a firearms licence. This was because at that time he did not understand and did not check what his responsibilities were in that respect.
5. Prior to 2013, the only genuine reasons for holding a firearms licence was to engage with a sporting club and he said he went through inland hunting properties. He agreed that the firearms registry records are correct in that he did not complete the minimum of two hunts per years because he was moving between Sydney and Newcastle.
6. In re-examination the Applicant said that he is now aware of all of his responsibilities for holding a firearms licence. He underwent a course on 25 November 2022 with Firearm Safety and Training, pertaining to the safe use and safe storage and responsibilities and use of firearms.

Discussion

1. This is a matter which concerns whether it is in the public interest for the Applicant to hold a firearms licence. For completeness, I have also considered if the Applicant is a 'fit and proper person' to hold a firearms licence.
2. The Respondent has raised a number of issues of concern. I have considered each of those issues and I have formed the view that the decision under review should be affirmed.

Mandatory revocation, or, discretion to revoke licence and conditional release order

1. When considering review of a holder of a firearms licence the Act provides for mandatory refusal of that licence in certain circumstances as well as discretionary grounds for refusing a firearms licence.
2. In these proceedings, the Commissioner decided to exercise a discretion to revoke the Applicant's firearms licence pursuant to s 24(2)(a) of the Act. That section provides that a licence may be revoked for any reason for which the licence holder would be required to be refused a licence of the same kind. When considering s 11(5)(d) of the Act, a prescribed licence must not be issued to a person who is subject to a conditional release order in relation to a prescribed offence. I have considered and agree with the Respondent's submissions that clause 5 of the Regulations provides that an offence relating to the possession or use of a firearm is prescribed for this purpose. It was therefore open to the Commissioner to consider whether she should exercise a discretion to revoke the Applicant's firearms licence in circumstances where he was subject to a conditional release order for the offence of fire firearm into building or onto inclosed lands. In that regard he was sentenced on 27 May 2022 and received, notably without conviction, a 12 month conditional release order commencing 27 May 2022 concluding 26 May 2023. Relevantly, at the time of his hearing the Applicant was not subject to that conditional release order.
3. At the same hearing in the Local Court of New South Wales the Applicant had a charge of enter inclosed land without lawful excuse dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999.
4. I have considered and agree with the Respondent's submissions that the 2021 offences, noting that the Applicant was not convicted of them, but in respect to one of the offences was dealt with by way of a conditional release order, enlivens the Tribunal's jurisdiction to exercise a discretion as to whether or not it is 'in the public interest' to allow the Applicant to hold a firearms licence. The discretion must be exercised to promote the objects of the firearms legislation.
5. In that regard, I have considered that a firearms licence is a privilege that must be weighed against the risk to public safety that results from such access. In exercising that balancing question, greater weight must be given to concerns about public safety. I have considered Aubrey v The Commissioner of Police [2005] NSWADT 266 at 21: 'Where there has been, or is, a possibility of a threat to the public safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm.'
6. In considering the risk to public safety and public interest considerations, I have taken into consideration that the 2021 incident and the show cause letter issued with respect to the 2013 incident both involved the use of a firearm. Particularly, the 2021 incident, by the Applicant's own admission, related to him acting impulsively and firing several shots at a kangaroo on the neighbour's property. The Applicant did not give any evidence about any assessment he made with respect to behaving in the manner he did. The COPS event indicates that the neighbour's daughter was riding a horse on the neighbour's property nearby the dam. In my view, where the Applicant acted in the way he did, without undertaking any assessment of risk concerning people on the neighbour's property, he acted impulsively and fired a number of shots indiscriminately in order to kill the kangaroo. I find he placed the public at risk with his conduct. This is of serious concern. I have also considered that the Applicant did not take appropriate precautionary action to prevent the escape of his dogs into the neighbours land, which he knew was a problem. He could have easily done so by chaining his dogs, repairing the fences or indeed placing his dogs in an enclosure to prevent their escape from his property. I note that now, the Applicant has put in place a plan to prevent this from happening. The Applicant did not, in my view, sufficiently explain why he had not take such action prior to the incident which occurred in 2021 which would have, more than likely, prevented the incident from occurring.
7. I have taken into consideration that the 2021 incident was not isolated. In that regard in October 2013, the Firearm Registry received a complaint from a neighbour that the Applicant had been firing shots along the boundary fence. The Applicant was sent a show cause letter and responded with respect to him then understanding the requirements of using a firearm onto his own property and away from any domestic or other animals. This clearly was not adhered to by the Applicant with respect to the unfolding of the 2021 incident.
8. I have also considered that both the 2013 and 2021 incidents related to conduct of the Applicant which amounts to the use of his firearms for a reason that was not the genuine reason for which he was authorised to hold the licence. That included in 2013 he was not authorised to use firearms on his property for vermin control. In 2021 the Applicant shot a kangaroo, which is a protected species in New South Wales, without a permit from NSW Department of Planning and Environment.
9. I have considered the parties' submissions with respect to the decision of Reid. I accept the Respondent's submissions that Reid is significantly distinguishable for the following reasons.
10. First, in Reid, the incident involving a firearm was the first incident. In these proceedings, the Applicant had come to the attention of police whereby a show cause notice was issued in 2013.
11. Second, in Reid, the applicant immediately notified police when he realised his error. In these proceedings the Applicant did not notify the police, nor the neighbour, of his use of a firearm until police attended his residence on 28 October 2021.
12. Third, unlike in Reid, the Applicant in these proceedings had a previously 2013 incident in his history with respect to the use/misuse of a firearm complaint.
13. I find it would not be in the public interest to allow the Applicant to maintain the privilege of a firearms licence. In these circumstances, public safety considerations in my view, require the Applicant's licence to be revoked.

Public interest

1. As set out above, I have found that it is not in the public interest to allow the Applicant the privilege of holding a firearms licence. In doing so I have considered the decision in Comalco Aluminium (Bell Bay) Limited v O'Connor & Ors at [681] and the reasoning in Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33].
2. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at 28, Hennessy DP as she then was, stated '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 a risk to public safety.' I have also considered Hennessy DP (as she then was) comments in cautioning against applying that language in a mechanistic way, in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at 7.
3. More recently and in further authorities, noting in Martin v Commissioner of Police, NSW Police Force [2017] NSWCATAD 97 at [64]-[66] the Tribunal reviewed other decisions including Webb v CoP [2004] NSWADT 1110 where Montgomery JM (as he then was) said: 'In determining this issue it is my view that 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.'
4. In taking into consideration all of the circumstances I find that the risk to the public is not minimal, fanciful or a theoretical risk, it is a real and appreciable risk given the Applicant's prior conduct and the circumstances relating to both the 2013 and 2021 incidents.
5. In considering the firearms licensing regime and the principles of that legislation the 2013 and 2021 incidents are indicative of the Applicant's inability to carefully abide by the firearms legislation. In my view, he has not demonstrated an understanding of the requirements of the firearms legislation with respect to his conduct. This is despite, in my view, him undertaking a further course with respect to those obligations.
6. Given the totality of the evidence before me, the correct preferable decision is to affirm the Commissioner's decision to revoke the Applicant's firearms licence, as it would be contrary to the public interest for him to hold such a licence.

Fit and proper person to hold a licence

1. Section 24(2)(c) of the Act prescribes that a licence may be revoked if the Commissioner is of the opinion that the applicant is no longer a fit and proper person to hold a licence. When examining this issue, the Tribunal must exercise its discretion to determine a review in a manner that promotes the principles and objects of the Act.
2. In Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184 the Tribunal said: 'Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence.'
3. In determining whether a person is a fit and proper person that involves a value judgement to be made in the context of the particular activity to be licensed: Australian Broadcasting Commission v Bond (1990) 170 CLR 321 at 36.
4. I am not satisfied that there is virtually no risk in terms of public safety when considering the public interest test and in the words of Hennessy DP as she then was in Ward, in the Applicant holding a firearms licence. I acknowledge that the Tribunal could never be totally satisfied that a person would never pose a risk to public safety in making this finding. However, having considered the entirety of the evidence I am satisfied that the Applicant cannot be said to pose virtually no risk to public safety. It also cannot be said that the risk to public safety is minimal, fanciful or theoretical.
5. I have also considered and placed little weight on the Applicant's private interests in holding a firearms licence. The Applicant's personal interest in having a licence cannot outweigh the public interest. The public's right to safety must take precedence (see - Huckel v Commissioner of Police, New South Wales Police Force [2008] NSWADT 347 at [41] and Hill v Commissioner of Police, New South Wales Police Force Service [2002] NSWADT 218 at [22]).
6. The decision under review is affirmed.

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: 15 December 2023