Buckley v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2018-10-12

Background

Mr Buckley is a firearms enthusiast. At a time, he had 12 firearms registered in New South Wales. He has held firearms licences in New South Wales and Queensland. Mr Buckley had a career in the Australian Defence Forces with the Royal Australian Navy (RAN) between 2004 and November 2016. He moved around Australia with the Royal Australian Navy. At the time of the Tribunal's hearing he was employed in New South Wales undertaking security work.
In or around July or August 2015, Mr Buckley moved from New South Wales to Queensland with his employer the RAN. He took up a position in Cairns in far North Queensland. This included working in the Armoury.
In August 2015 the Queensland police attended Mr Buckley's new home in Cairns. They found ammunition, unregistered firearms and a firearm registered in New South Wales which was not appropriately stored. Mr Buckley subsequently pleaded guilty to firearms charges in Cairns Local Court in late August 2015. No conviction was recorded. He was given a good behaviour bond of six months which he served. Mr Buckley was subsequently given a firearms licence in Queensland commencing 4 May 2016 to expire on 31 January 2027.

The Tribunal's role

Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the Tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The Tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
The Tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the Civil and Administrative Tribunal Act 2013 (s 30) and the the Act, including the Commissioner's refusal to issue a licence or permit: s 75(1)(a). The Tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.

The issues for the Tribunal

The issues for the Tribunal were: 1. What is the correct and preferable decision - should Mr Buckley be granted a firearms licence in New South Wales ? 2. Is Mr Buckley fit and proper to hold a firearms licence and can he be trusted to have possession of firearms without danger to public safety, to the peace and can he be trusted to comply with the storage and safety requirements of the Act ?; and 3. Is it contrary to the public interest for Mr Buckley to hold a firearms licence?

The evidence before the Tribunal

The parties relied on the s 58 documents, other documentary material, and submissions.
Mr Buckley gave evidence to the Tribunal and was cross-examined.

Documents before the Tribunal

The Tribunal had documents filed by both parties before it. Amongst these were documents relating to Mr Buckley's past interactions with the state police and naval authorities. The contents of these documents are set out below.

NSW Police COPS events

Event E32397672 related to the reporting of a verbal argument coming from Mr Buckley's home in Potts Point on 11 January 2008. Police attended but no action was taken.
Event 44510621 reported police attending Mr Buckley's home in Woolloomooloo on 3 May 2011. The event notes that police were called by a neighbour in a response to an argument between Mr Buckley and his partner. Mr Buckley's firearms were inspected and deemed to be safely stored. No action was taken by the police in relation to the event.

Emails and file notes concerning Mr Buckley's contact with New South Wales and Queensland firearms registries 2014 and 2015

"Notepad messages" commencing 9 December 2014 set out that Mr Buckley advised the NSW Firearms Registry that he would be moving to Queensland from New South Wales in early February 2015 and that he intended to make application for a firearms licence in Queensland.
Emails from Mr Buckley to the Queensland firearms registry and New South Wales firearms registry in August and September 2015 relate to Mr Buckley's application for a firearms licence in Queensland and the storage of his firearms in New South Wales in the interim.

Navy disciplinary records

Documents refer to the RAN investigation of Mr Buckley's possession of a knife on board HMAS Bundaberg in June 2009. Mr Buckley was subject to disciplinary proceedings for possession of the knife. Mr Buckley was found to have failed to comply with a general order and was fined $75.
In March 2011 Mr Buckley received a formal warning concerning unsatisfactory conduct from his employer. The formal warning stated that the behaviour had compromised his position as a sailor in the RAN and brought the Navy's reputation into disrepute. The behaviours included posting derogatory comments on his Facebook wall relating to Muslims. Mr Buckley had also been shown wearing disruptive pattern naval uniform with his name tag clearly displayed at a political rally on a Facebook page. Mr Buckley's anti-Muslim comments were then used on a website known as the anti-Bogan website identifying Mr Buckley as a serving Australian Defence Force member and linking him to an anti-Islam rally. The formal warning noted that the behaviour was unsatisfactory and that it was below the standard expected of a sailor in the RAN; demonstrated a significant error of judgement; brought discredit and disrepute upon Mr Buckley; brought discredit upon the RAN and demonstrated a disregard for signature behaviours. The formal warning noted that if Mr Buckley were involved in further incidents, he should expect to receive further administrative sanction or be considered for termination from the Royal Australian Navy.
In April 2015 Mr Buckley was found to have disobeyed a lawful command in that he failed to remove a knife from his belt when he had been directed to do so on 20 April 2015 and again on 30 April 2015.

Infringement notice May 2016

On 3 May 2016 Mr Buckley was issued with an infringement notice by Queensland police for a public nuisance offence at a nightclub in Cairns. The event appears to have related to fighting within licensed premises. The document indicates that Mr Buckley failed to report the incident to his chain of command. The document also notes that Mr Buckley had recently been issued with a notice to show cause as to why he should not be discharged from the Navy due to a number of disciplinary matters recorded against him.

Termination of Service from the Navy

The Tribunal had before it a notice dated 1 October 2016 which advised of the termination of Mr Buckley's service with the RAN.

Mr Buckley's evidence to the Tribunal

Mr Buckley told the Tribunal that he had worked for the Australian Navy in Melbourne, Sydney, Cairns and Darwin. He had also had overseas deployments in humanitarian projects. His core role was as a cook. He was required to meet a range of dietary requirements for service personnel. He had joined up at the age of 17 after school. From November/ December 2017 Mr Buckley had worked for PSI Corporation until October 2018, providing security to Coca-Cola at the Finger Wharf. Prior to that he had worked for another security firm, ACES. Mr Buckley told the Tribunal that he had provided security to the Premier of New South Wales and that he had had special access to the Premier.
In his role with the Navy he had been part of boarding parties at sea undertaking humanitarian work. At HMAS Cairns he had worked in the armoury and had been a deputy explosives officer in charge of explosives, detonators and smoke bombs at the HMAS Cairns base. He showed the Tribunal photos from within the armoury. He was proud of his own and his family's history in the military.

Four bladed knife incident June 2009

Mr Buckley was asked about some incidents that had arisen during his service with the Navy. He had been subject to disciplinary proceedings in relation to a four bladed knife. Mr Buckley said that he had bought it at Paddy's market. It was in his bag. He was directed to crash sail, at short notice, and had forgotten that it was in his bag. He had stored it away in a void in his berth. He told the Tribunal "They had to make a big issue of it." He said he would have thrown it overboard. He could not remember showing it to another crew member. Later in his evidence he said that he accepted that it was true that another crewmember had stated that he had shown the knife to him - but he could not remember it.
Mr Buckley said he didn't think he'd been charged in relation to the "taking a knife on board" matter, but then agreed he received a $75 fine and restriction of privileges for one day. He thought that the knife was not much different to the 12 inch blade that he used for his work in the galley. He said he had not shown it to anyone. He then said he had shown it to his bunkmate because he knew his bunkmate had an interest in these matters. Mr Buckley also said he did not recall showing it to anyone.

White supremacist groups

Mr Buckley was asked about his connection with white supremacist groups and the photos of him attending a rally which allegedly involved white supremacists. Mr Buckley said he did not believe that anyone was better than anyone else. He had a racially mixed background himself.
Mr Buckley said the material he had posted online expressing anti-Muslim sentiments was posted as a joke. He does not have difficulty with people from an Islamic background or with people of a different ethnicity to him. He agreed that some people may have found the material offensive. He had distanced himself from the Australian Protectionist party after interacting with them for about 6 to 8 months. The photo of him was taken when they were handing out how to vote cards. They were attacked by people opposed to their ideas - by thugs with sticks. The police arrived after they were attacked. He had been brought in by his employer ACES to discuss his involvement in the matter. He remained with ACES for a further couple of months but finished working with them in December 2017.
He had become involved with the Australian Protectionist party because he loves his country and wishes to put Australia first. He is no longer involved with the party.

The Queensland firearms offences August 2015

Mr Buckley said that the offences in Queensland had arisen a short time after he had moved to Queensland from New South Wales for his employer. He had transported his shot gun in his vehicle, broken down into three pieces. This was a firearm that was found by the Queensland police when they attended his home. He denied having fired the shot gun and said that any noise could have been attributable to roadwork going on in the area at the time. He said that the unregistered firearms had come from his grandmother's estate. They were broken and not functional. He thought he would register them when he obtained a licence in Queensland. He understood now that they should have been registered.
Initially Mr Buckley said that the events all happened on the day he was moving in. He was arranging to get a safe. That afternoon he was going to the range with this shot gun in order to get his hours up in Queensland. He had cash in order to buy a safe. He had transported his shot gun in his vehicle in a locked container.
Under cross-examination Mr Buckley agreed that there had been four firearms involved in the offences in Queensland. Two were air rifles. He left his bag on the outside balcony in preparation for going to the shooting range that afternoon when the police came. His shotgun had been on his bag in preparation for going to the range. He had a muzzleloader and an inoperative slug gun in the lounge room and another on top of the wardrobe. There was no ammunition there at that time. His girlfriend was going with him to the shooting range. He thought that there was no way that anyone would have known that he had firearms in the house as they were always covered. His shot gun was wrapped in a towel and all in one piece at the time.
Mr Buckley told the Tribunal that he had recently arrived in Queensland - not on that day. He thought it was within a couple of weeks of his arrival. He could not remember how long after he left New South Wales that he had moved into the home - maybe it was 1 to 2 weeks. He initially had interim accommodation with a friend in Cairns. He said that he had taken his New South Wales registered shot gun in the car with him from New South Wales to Queensland. He had not packed his own items. They had been packed by someone in New South Wales. The other firearms had been packed by the removalists. They had travelled amongst his personal items. He told the Tribunal " To be honest, I didn't know I had them." He said he had been present when everything was packed so the firearms were not out of his control. The ammunition had travelled with him in the car, so he would keep it safe. He thought he had a green lockable box in the car. He had taken his shot gun out of the box in order to take it to the shooting range, but he did not know why he had taken it out of the box at that time.
Mr Buckley said he had not had his grandmother's firearms registered in New South Wales because he knew he would be moving to Queensland and thought he would register them then. He thought that Queensland firearms law meant that he did not have to register any firearms which were manufactured prior to 1900. One of the unregistered firearms fell within this category. He agreed that he should have had these registered in New South Wales. They were also broken and inoperable. He had been very focused on moving and had forgotten that he had them. He was even tossing up whether or not he would just hand them in. He had held them for 1 1/2 months in this condition.
When he had driven to Queensland, over a 2 day period, he took the barrel of the shot gun with him and the stock remained in the car. He had kept the parts with him in the hotel room and the ammunition in the car so that he would be compliant.
Mr Buckley agreed that he had told the New South Wales firearms registry that his guns would be stored at his father's place in New South Wales but in fact only 11 of his firearms were with his father. He had taken another one with him. He said he had not tried to mislead the New South Wales firearm authorities about this - even though he had let them believe that the shot gun that was with him was in safe storage at his father's place. He agreed that he had not specifically told the New South Wales firearms registry about the Queensland offences, but he understood they knew as they had sent someone to his father's place to inspect his firearms. He did not believe he was required to notify them formally.

Queensland firearms licence application

Mr Buckley said that he had applied for a Queensland licence online. He was unsure whether or not he knew what his new address would be at the time he applied for the licence. The application had been made four days before the Queensland police attended his new home in Cairns. He had been previously residing in Queensland at a friend's place until he obtained his new rental property in Cairns. He was intending to store his shot gun at the Cairns club. He had never tried to deceive the Queensland firearms registry. The information in his application was true.
Mr Buckley said that shooting is his sport. He also enjoys collecting military history in relation to World War I and World War II. He had enjoyed his firearms as a hobby and sport for as long as he could remember.

The Respondent's submissions

The Respondent submitted that Mr Buckley was not fit and proper to hold a licence; could not be trusted to have possession of firearms without danger to public safety and to the peace; he could not be trusted to comply with the storage and safety requirements of the Act. It was also contrary to the public interest for Mr Buckley to hold a firearms licence.
Had the Commissioner been aware of the events set out in Mr Buckley's evidence, his licence would have been revoked. Mr Buckley had not been honest in his dealings with the regulators; he was not an impressive witness. At times his evidence was not credible. The Tribunal should consider his demonstrated level of co-operation and frankness when dealing with the regulator. This was indicative of a licensee's character. See DMC v Commissioner of Police [2018] NSWCATAD 219.
Mr Buckley had been aware that the Respondent had subpoenaed files from the Navy and the Queensland police including records of their dealings with him. As a result, his evidence was not a reflection of his honesty and character because he was aware that his evidence could be tested. The best indication of his character was the degree of frankness he had demonstrated in the records of his dealings with others.
Mr Buckley had not been honest in his application to the Queensland weapons regulator, completed online. He created a false impression of his current living and gun storage arrangements. He had not been honest in his dealings with the New South Wales regulator. He never disclosed that he had unregistered guns and an antique gun. He never applied to register them. He told the regulator his father had sole access to his firearms as he was now interstate, even though Mr Buckley held one of those firearms with him in Queensland.
Mr Buckley's assertion that he had not fired a firearm causing the Queensland Police to be called to his home in August 2015 was not credible. This reflected on his honesty and the reliability of his evidence.
The Tribunal should not accept Mr Buckley's testimony concerning the taking of his knife on board HMAS Bundaberg accidentally. He had been seen to be showing the knife to a bunkmate on board boat and it was being stored in a void out of sight. At times in his evidence and his record of interview, Mr Buckley denied having been aware of the presence of the knife or hiding it. He initially denied having shown it to someone else on board the vessel - even though he had admitted in his record of interview to doing so. He denied recalling the incident. The only conclusion open was that Mr Buckley recalled the incident but that he was not prepared to be open about it or his behaviour.
Mr Buckley initially gave evidence that he had obtained two unregistered firearms from his grandmother's estate about a month prior to his move to Queensland. Later he agreed that he had held those firearms for a longer period. He had left these firearms to be transferred to Queensland by the removalist, rather than in his own car. He had permitted the removalist access to the firearms to pack and transfer the firearms to Queensland without supervision. It appeared he had forgotten about the firearms and had deliberately decided not to register them.
Mr Buckley had contended in his evidence that he was providing close personal protection to the Premier and senior government members - but this was not consistent with the duties listed by his employer or permissible under his licence.
Mr Buckley's evidence demonstrated an unwillingness to comply strictly with the laws relating to firearms, weapons and their safekeeping. For more than one month before he left New South Wales for Queensland, he had two unregistered firearms in his possession and a replica gun. Contrary to his representations made to the New South Wales firearms registry, he removed registered firearms from his stated location of safe storage and he had taken them to Queensland in a manner not consistent with safe and responsible gun storage or transportation. This was most likely an offence under section 50 of the the Act 1996. The firearms were packed by removalists and transferred to Queensland - contrary to safe and responsible gun storage and transportation requirements. When the police attended his premises in Queensland there were guns and ammunition present in the premises which were easily accessible. Mr Buckley did not have storage facilities at his premises despite having told the Queensland registry that he had them. Mr Buckley had told police he had moved into the premises approximately two weeks earlier. Implicit in that comment was that the guns had not been properly secured for at least two weeks.
In 2009 he had purchased and kept an unlawful knife - see Weapons Prohibition Act 1998, sections 4 and 7 and schedule one. Mr Buckley had possessed knives on board ship in breach of his commanding officer's orders.
Mr Buckley had little insight into his conduct. He claimed that there was no risk with his possession of a throwing knife on board because it was with him. He did not understand that the risk was not limited to him, but that it might be used by others. Mr Buckley contended that the taking of the knife on board was accidental, yet he did not understand that the possession of the knife was unlawful. Mr Buckley's leaving of assembled guns and ammunition in different rooms of the house in Queensland was unsafe in the event a stranger came into the premises.

Mr Buckley's submissions

Mr Buckley submitted that he had been an impressive witness, honest and forthright in his evidence-in-chief and under cross-examination. He had not attempted to shy away from aspects of his previous behaviour. He readily admitted a number of times that he had made mistakes regarding how we handled his transfer from New South Wales to Queensland with the Royal Australian Navy relating to his obligations concerning firearms. The Tribunal should be satisfied that he was doing what he felt was best in the circumstances at the time. With hindsight he could have done better. The Tribunal would be satisfied that Mr Buckley was constantly in touch with both the New South Wales and Queensland firearm registries regarding his interstate move. He was trying his best to keep both registries in the loop.
Mr Buckley did not deny that during service he faced administrative charges regarding disciplinary matters. However, no criminal charges flowed from these matters and a number of administrative convictions against him had been quashed. He had been a very young and immature man at the time of joining the Navy. He had learned from his experiences and is now a more mature man of 31 years of age. His evidence concerning his association with the Australian Protectionist Party was that once he became aware of the philosophies of the party, he quickly distanced himself from the Party and had no further contact. The Tribunal would not be satisfied as to any inference that Mr Buckley was a racist - particularly given the explanation of his cultural background and the nature of his duties whilst in the Navy.
There was no evidence to support any inference that Mr Buckley was involved in firing shots from a firearm at his Queensland premises on 4 August 2015. The Tribunal should take into account that there are documents that showed Mr Buckley in a positive light including an ADF performance appraisal supplementary report as well as character references. Mr Buckley's evidence concerning the offences dealt with in the Cairns Magistrates Court would demonstrate to the Tribunal that he is now a mature 31-year-old man who has learned lessons well. The Tribunal should be satisfied that he would not again place himself in the position he did in 2015. He would not have been given the responsibilities of working in close proximity with the most senior members in the state parliament including the Premier, if there had been any doubt about his character since he left the services. The Tribunal should be satisfied that Mr Buckley is a responsible man and would be confident that he is both a fit and proper person and that the public interest would not be compromised were he to be granted the privilege of holding a firearms licence. The Tribunal should be satisfied that there is virtually no risk to public safety should he be granted a firearms licence.

The Tribunal's Findings of Fact

In making its findings, the Tribunal applies the civil standard of proof, that is, the balance of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 316 and the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12].
In Wilson v Commissioner of Police, New South Wales Police Force [2015] NSWCATAP 248 at 19 the Tribunal Appeal Panel affirmed that no party has a formal onus of proof under the the Act: Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 425; Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 at [39]- [40]. There is a practical onus on the party who raises a specific fact for consideration to prove the existence of that fact: Re Holbrook and Australian Postal Commission (1983) 5 ALN N 46.

NSW Police COPS event 2008 and 2011

The Tribunal is satisfied that the police were called to Mr Buckley's home in 2008 and 2011 by concerned neighbours because of shouting from within his home. No concerns about firearms were raised at these times. However, the Tribunal considers that these incidents indicate that neighbours were sufficiently concerned to call police on both occasions.

June 2009 four bladed, throwing knife incident

The Tribunal is satisfied that Mr Buckley was in breach of Navy discipline in bringing and keeping a 4 bladed throwing knife on board. The Tribunal is also satisfied that Mr Buckley gave evasive evidence to the Tribunal about this matter.

April 2015 carrying a knife on board

The Tribunal is satisfied that Mr Buckley was found on two occasions in April 2015 to have worn a knife on board ship contrary to instructions.

Firearms offences August 2015

The Tribunal is satisfied that Mr Buckley committed firearms offences in August 2015 which were dealt with by the Cairns court. These offences involved breaches of registration and storage requirements for firearms. The Tribunal is not satisfied by the evidence that Mr Buckley had discharged his firearm leading to the police attendance at his home in August 2015.

Relationship with firearms registries in Queensland and New South Wales

The Tribunal notes that Mr Buckley made efforts to contact the NSW and Queensland firearms registries concerning his impending move to Queensland from NSW. The Tribunal does not consider that Mr Buckley deliberately tried to mislead the Queensland firearms registry in his interactions seeking a licence in Queensland.
The Tribunal is satisfied that Mr Buckley did mislead the New South Wales firearms registry by advising that registry that his firearms would all be stored in safe storage with his father, when he in fact had a firearm with him in Queensland.

Mr Buckley's political affiliations and White supremacist groups

The Tribunal accepts Mr Buckley's evidence that he did not retain an involvement with white supremacist groups. He does not hold racist views. The Tribunal is not satisfied in any event that the holding of these views impacts directly upon Mr Buckley's firearms registration or safety to do so.

May 2016 infringement notice for fighting on licensed premises in Cairns

The Tribunal is satisfied that Mr Buckley received an infringement notice for fighting on licensed premises in Cairns.

Termination of Service from the Navy

The Tribunal is satisfied that in October 2016 Mr Buckley's service in the RAN was terminated by the RAN. The reasons for this termination are not clear to the Tribunal. The Tribunal understands that the termination was at least in part caused by a number of breaches of naval disciplinary requirements.

Consideration of the issues for decision 1. What is the correct and preferable decision ? 2. Is Mr Buckley a fit and proper person to hold a firearms licence? 3. Can Mr Buckley be trusted to have possession of firearms without danger to public safety or to the peace? 4. Is Mr Buckley capable of meeting the storage and safety requirements set out in Part 4 of the Firearms Act ? 5. Would the issue of the licence to Mr Buckley be contrary to the public interest?

Is Mr Buckley a fit and proper person; and can he be trusted to have possession of firearms without danger to public safety or to the peace, and are the storage and safety requirements set out in Part 4 capable of being met by the applicant,

The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the Tribunal. In Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127, 156 - 157, the High Court gave a general overview of the concept and the discretion that it embodies: 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 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....
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; [1990] HCA 33; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that: 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, or 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.
Drawing on these bases, the Tribunal has determined that fitness and propriety is a question 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].
The principles and objects of the Firearms Act 1996 confirm that possession and use of firearms is a privilege that is conditional on public safety. Strict requirements must be satisfied in relation to the licensing of firearms and the acquisition and supply of firearms: section 3(2)(d) of the Act. In the context of the the 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, [22].
The provisions of section 11 (3) require that the Commissioner and Tribunal be positively satisfied that Mr Buckley is a fit and proper person and that he can be trusted to have possession of firearms without danger to public safety or to the peace.
Further, the Commissioner and the Tribunal must be satisfied that Mr Buckley will comply with storage requirements.
The Tribunal notes that it is in Mr Buckley's favour that Queensland Police Commissioner did grant Mr Buckley a firearms licence in May 2016 after he had served the period of good behaviour bond.
Police have been called to Mr Buckley's home on at least three occasions - in 2008 during a domestic dispute, again in 2011 in similar circumstances and in August 2015 to his home in Cairns. In May 2016 he was issued with an infringement notice by police in Cairns for fighting on licensed premises. These occurrences lead to some doubt in the Tribunal's mind as to Mr Buckley's civil behaviours over a period of eight years. Further Mr Buckley's interest in knives has brought him foul of naval discipline on two occasions in 2009 and 2015, despite warnings given to him.
The Tribunal was not informed of the behaviours which led to the termination of Mr Buckley's service in the Royal Australian Navy. Mr Buckley told the Tribunal that he was in charge of the armoury in Cairns and showed the Tribunal photographs of this workplace. The Tribunal understands that Mr Buckley was terminated from the Navy while stationed in Cairns. Mr Buckley did not give evidence to the Tribunal about his termination from the Navy. It appears to the Tribunal from the documents provided, that Mr Buckley was terminated from the RAN as a result of repeated disciplinary matters. This termination occurred fewer than 12 months prior to his application for a firearms licence in New South Wales.
The Tribunal is required to be affirmatively satisfied of Mr Buckley's fitness and propriety to hold a firearms licence Mr Buckley committed firearms offences in 2015. Mr Buckley pleaded guilty to the offences before the Cairns local Court. However his evidence to the Tribunal about the circumstances of the events was internally inconsistent. It is not clear to the Tribunal how Mr Buckley would respond in future to firearms registration and storage issues.
In the absence of explanations of the behaviours involved in his termination from the RAN, the Tribunal cannot be satisfied that Mr Buckley can be considered fit and proper to have possession of firearms without danger to public safety or to the peace. The series of incidents set out above and the unexplained termination from the Navy leave doubt in the Tribunal's mind as to whether Mr Buckley can be considered fit and proper to hold a firearms licence, that he will comply with requirements and that the public will remain safe.

Is it contrary to the Public Interest for Mr Buckley to hold a firearms licence?

In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25] with regard to security licensing legislation, the Tribunal's Appeals Panel referred to the "public interest" as: "...an inherently broad concept giving the appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual."
That definition of public interest, has been applied to firearms cases (Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28 and Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16.)
In Constantin at [33] the Appeal Panel stated concerning the the Act: "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."
It is also well established that the discretion in relation to public interest is to be exercised having regard to the objects of the relevant legislation. In this application it is the provisions set out in s.3 of the the Act, which emphasise public safety. In particular this involves the requirement for registration of a firearm and the safe keeping of firearms when used and not used.
In relation to public safety, in Tolley v Commissioner of Police, NSW Police Force [2006] NSWADT 149 at [31] Fitzgerald JM stated: "Given the breadth of the Commissioner's discretion and the overriding object of public safety there is no basis for distinguishing between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence."
The Tribunal notes that Mr Buckley committed firearms registration and storage offences in August 2015. These offences meant that the firearms involved were accessible to others. This undermined public safety. Mr Buckley was subject to disciplinary breaches involving knives on board during his service in the RAN. Again, these breaches compromised the safety of others in Mr Buckley's environs. The knives, weapons, were accessible to others.
In Ward v Commissioner of Police [2000] NSWADT 28 at [28], the Tribunal said: "Where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk."
Mr Buckley has a record of coming to the attention of the police both in his home and on licensed premises. He has been found guilty of firearms offences. He was terminated from the Navy in circumstances which were not clearly explained to the Tribunal. In these circumstances the Tribunal considers that is not in the public interest for Mr Buckley to hold a firearms licence where the reasons for Mr Buckley's termination from the RAN including his role in charge of the armoury in Cairns have not been explained. The public interest includes concerns in relation to "public confidence in the administration of the licensing system." See Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 at [33]. The Tribunal considers that public interest would require that the decisionmaker be fully informed of these matters prior to determining Mr Buckley's safety to hold a firearms licence.
Making a decision in the absence of relevant information would potentially undermine confidence in the administration of the firearms licensing system.
The requirement that there be virtually no risk as set out in Ward's case is a high standard to meet. Mr Buckley's conduct leading to pleading guilty to firearms offences in August 2015, was inconsistent with the responsibilities that are attached to a licence issued under the Act. He put public safety at risk and appeared not to appreciate that the possession of a firearm is a privilege.
The Tribunal cannot be satisfied in the circumstances that there is "virtually no risk" to public safety were Mr Buckley to be licensed to hold firearms. . Consequently, the Tribunal is satisfied that it is not in the public interest for Mr Buckley to hold an AB firearms licence.

Decision

For the reasons stated above the Tribunal finds that the Commissioner's decision to refuse Mr Buckley's application for a category AB firearms licence is the correct and preferrable decision.
The Tribunal orders that: 1. The decision of the Commissioner to refuse Mr Buckley's application for a category AB firearms licence is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 30 November 2018

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (31 paragraphs)

Parties

Cases Cited (23)