Burey v Commissioner of Police, New South Wales Police Force

Applicable legislation

1. Section 24 of the Firearms Act 1996 (NSW) (the Act) provides that a licence may be revoked on a number of grounds, including: 1. if the licensee contravenes any provision of the Act or regulations, whether or not the licensee has been convicted of an offence for the contravention (s 24(2)(b)(ii); 2. if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence (s 24(2)(c); 3. if the Commissioner is satisfied that it is not in the public interest for the person to continue to hold the licence (s 24(2)(d), Firearms Regulation 2017, cl 20); 4. for any reason for which the licensee would be required to be refused a licence of the same kind, including if the individual is subject to a CRO imposed in New South Wales for a prescribed offence (including an offence relating to the possession or use of a firearm) (s 24(2)(a), s 11(5)(d)(iii); cll 5(2)(a) and 5(1)(a).
2. The respondent relies on all four of the above grounds in support of the revocation of the licence. The issues in this application are thus whether the applicant is a fit and proper person to hold a firearms licence, whether it would be contrary to the public interest for him to do so, whether his contravention of a provision of the Act, or any reason for which the applicant would be required to be refused a licence (including his being subject to a CRO), and whether the statutory discretion in s 24 should or should not be exercised in his favour.

The evidence

1. The respondent adduced no oral evidence but instead relied on the documentary material, including the s 58 documents (exhibit R1), and on cross-examination of the applicant.

Mr Gregory Burey

1. The applicant tendered a signed statement filed on 13 October 2022 (exhibit A1) which stated inter alia that he had been exposed to firearms from about the age of 10 or 11 when his father used to take him shooting on the family property. He also was involved with army cadets for four years, becoming an under-officer and overseeing firearms training and range shoots. When he was 17 or 18, he joined the Army Reserves, serving for 9 years. He formed part of the army shooting team and the display riding team, dressing the Light Horse riding team, and also conducting firepower demonstrations. As part of their weapons training, they trained using pistols, rifles, submachine guns, heavy machine guns and grenades. In 1977, he also became a member of the Australian Clay Target Association and began shooting competitively, and also internationally.
2. He has been self-employed for his entire adult life in the agricultural industry, including performing stock work, farming, fencing, machinery operating and feral animal control pursuant to contract shooting. On average he believed he needed to control feral animals with a firearm about every second or third night during the growing season, from May to November, and about once or twice a week during the off-season.
3. He is the father of three adult children, who were also keen shooters. His eldest daughter, with whom he used to shoot a great deal, died in tragic circumstances in 2019, and his mother also died about 10 days later. His son has served in the army and was deployed to Afghanistan with the SAS. He suffered some mental health issues as a result and now receives a veteran's pension. His other daughter is a performer who primarily performs with animals, being involved in many productions including the Australian Outback Spectacular as a horse trick rider. In early 2021 his partner of 12 years passed away from cancer at the age of 61. It was an extremely difficult time for him. He now resides alone on the property at Bullarah, a small town some 70 km west of Moree.
4. His usual practice has been to lock his firearms in two separate safes located in his main bedroom. The safes were bolted to the floor and walls as required. Some arms were kept at his brother's house at Glen Innes, and when he was travelling to the Northern Territory at the time of the fire, he had some of his firearms with him. Ammunition was in a separate steel cabinet in another room, under lock and key. The safes had keys which he kept in a hidden location inside the house.
5. Whenever he uses a firearm, he only takes the ones that he knows he will need to use, after which he relocks the safe and hides the key. Once he has finished with them, for example when he goes contract shooting, he then returns home immediately, finds the key, replaces the firearms in the safe and replaces the key in its hiding spot. He has been following that procedure for his whole life, having learned it from his father, but also through the clubs, organizations and associations of which he has been part.
6. In about mid-2021, he travelled to Darwin, NT, for a shooting competition, he and his partner being away for about a month. Before leaving for the trip, he ensured that his firearms were secured in their respective safes and hid the key, then locked and secured the front gate. When he was on his way home from Darwin, he received a telephone call to say that his house was on fire. He had lived in the house for about 6 years. When he returned, he found that his house and all his personal possessions had been completely destroyed. That was extremely difficult for him because there were many personal items that were of significant sentimental value, including memorabilia of his daughter and mother, and other irreplaceable items. Many tools and equipment for his work were also lost.
7. Not only were many of his firearm stolen, but other things including two vehicles (one of which was found burnt out in Moree), a motorcycle, tools, including power tools and tools inherited from relatives that he used in his workshop, chainsaws and fuel. The other stolen vehicle was recovered, but significantly damaged and he had to incur a financial cost in retrieving it. The thieves also attempted to steal a quad-runner, but were unsuccessful.
8. When the police arrived and spoke to him, he cooperated with them and told them everything they needed to know in order to help them with their investigation. As regards the unregistered firearms, the 1942 Lithgow rifle was given to him by a third party shortly before he left for Darwin for the shooting competition. He intended to take it to the authorities for an amnesty to have it registered in his name. The person who gave it to him did not have a licence. Unfortunately it was one of the firearms that was stolen, and consequently he could not register it in his own name.
9. As regards the explosives, he used to use them for ongoing rural operations and farm management back in the 1980s and 1990s. They were only used by persons who were properly authorized or licensed or both. They were used for removing stumps, breaking up silt in dams and the like. The power gel was left over from previous jobs. He had kept the explosives in a caravan that the offenders had ransacked. When he was interviewed by police, the officer asked him about explosives at his property. He thought he was referring to the power gel, but he was referring to gunpowder the offenders had used to light the fire to destroy his home. Accordingly, during the interview, he admitted possessing the power gel. He later destroyed it.
10. When later charged with possessing unregistered firearms and explosives, he pleaded guilty to three of the four charges, the fourth one being withdrawn. During the sentencing hearing, Magistrate Kemp confirmed that given his lack of criminal record and prior good character, and the circumstances in which the charges had come about, it was well within her discretion not to record convictions.
11. Ever since his licence was suspended, work has been extremely difficult for him. He can no longer destroy livestock when necessary or control feral pests. Because the pests were impacting his wheat crop so much, he lost the crop. He believes he lost between $30,000 and $40,000 from the lost crop. He has also been unable to complete contract shooting, so that he has lost some $20,000 in income, which has created financial difficulties. He has also had to forgo one of his sharefarming arrangements. The last time he had harvested on that arrangement, he had earned some $60,000, which was now lost. Overall, he estimates that he has lost well over $100,000 in income as a result of losing his licence. He has also lost other employment opportunities for that reason.
12. He had been around and involved with firearms for over 50 years and understands how dangerous they can be. For that reason he has never used firearms improperly and has always stored them in a safe and secure manner. Firearms had formed a very significant part of his life and he hoped they would continue to do so in the future.
13. In the statement he made to police shortly after his return from Mackay dated 16 August 2021 (exhibit R3), the applicant explained the circumstances of the fire and his return from Queensland, and listed the items stolen or destroyed, including a 1992 Ford Fairlane and a Holden Rodeo single cab utility. The house had been fully furnished, and all of his possessions had been inside, including a refrigerator, workshop equipment and his Milwaukee tool bag and tools. The caravan in front of the house, which was additional storage and bedding for workers, was completely burned out. His shipping container was opened and chainsaws removed and on the ground in front of it. They had been drained of their fuel. The shipping container had also had ammunition stored in it, away from the firearms. The padlock on the container was gone. Inside the house he had other locked cupboards containing ammunition, which he proceeded to list.
14. Since returning home he had found that the thieves had upended and disturbed nearly everything in the shed. His service truck, an unregistered farm vehicle, had been shot up with the 7.62 X 39. He then stated "The following guns were stolen..." and proceeded to list 13 rifles and shotguns, not including the SKS or the 303/25.
15. The two safes were located in his bedroom. The category C safe contained all his larger calibre guns and the other had the .22s and the 12-gauges in it. The keys were hidden in his bedroom. As he had found the spare keys, the wrongdoers must have found the keys in his room. He does not know who would have done that.
16. In oral evidence by AVL at the hearing the applicant reiterated those points, adding that the day after his return from Queensland, police had asked him for a statement. At the time he was feeling quite shattered because of the tragic house fire they had suffered years ago, and this had brought it all back. He was wondering how he would ever recover as he had lost a lifetime of things and memories. In the 3½ weeks between that statement and the ERISP interview he was carrying on farm work, cleaning up, assessing what he had lost and arranging for insurance requirements. He had crops to inspect and machinery to prepare for the forthcoming harvest. He had also had intermittent telephone conversations with police discussing the appointment for the interview, updating the state of proceedings, notifying him that the vehicle and his motorcycle had been found. He needed to arrange for the removal of his car that had been found burnt out in town. It was a hectic workload at a busy time of year and he lost a great deal of sleep.
17. At his interview with police on 8 September the ERISP procedure was explained to him but he did not fully understand its purpose, as he had already made a statement to police. He had thought the interview was for the purpose of identifying firearms and belongings. His statement of 16 August 2021 (exhibit R3) had been made on the Monday after his arrival home on the Sunday evening. He had little time to look over the property before making the statement. He had listed the stolen firearms in exhibit R3 on the basis that he thought they were all that had been stolen, but realized later that other items had been taken, that he had not listed. Some of the stolen firearms had been recovered, but some were still outstanding. He had heard that the offenders had been caught, about a fortnight after the fire, through media reports and following a police operation in town. He was impressed with the standard of the police work and had a mutually good relationship with them.
18. At the time he had been feeling very apprehensive because he believed the offenders could have returned and he was feeling very insecure and concerned for the safety of his family, purchasing another security camera. He had pleaded guilty to the explosive charge because he had not been licensed. He had qualified for a licence by completing the prescribed course but had not received the licence as he was away when the examination was held.
19. Not having his firearms license has had a big effect on his financial situation, as vermin are a major factor in the area and if they are not controlled have a major impact on crops. The landowner is not required to do it, as is the case with the control of weeds, but he did not own the property and therefore it was his responsibility. Contract shooters could not meet all his requirements and the cost would be prohibitive. Also they might not be willing to come out to his property for a "quick runaround". Vermin pressure can be intense, and controlling it is almost another job. He received $55,000 from insurance for loss of contents, though the real loss was around $100,000.
20. He thought the explanation by Detective Sergeant Ryan in the ERISP (exhibit R4, p 1, Q6) about the police investigation being about "the theft of some firearms that happened at your premises last month… and the unlawful possession of some firearms, ah, that were stolen from your address" related to the firearms recovered and the 303/25 and the SKS. He had seen his role in the interview as being to identify the photographs. There was nothing more he could have done to secure the premises before leaving for Darwin, for while the gate was locked, the house was not lockable (as a result of flood damage).
21. Cross-examined by Mr Roberts, the applicant said he had been a club member since 1977 and admitted he was familiar with the registration requirements for firearms. His safe storage was at the property, where he had lived since 2015, but some were held at his brother Ian's at various times, as he was a part owner of the property with Ian. The firearms would have been held there for short periods during visits. He had not informed the firearms registry about these arrangements, given the short time frames, a couple of weeks according to the job he was doing.
22. He had believed the list of stolen firearms he had supplied in exhibit R3 had been comprehensive. When it was suggested to him that the implication was that no other firearms had been stolen, he replied that he had listed those he knew at the time had been stolen.
23. He could not be sure of the date when he had acquired the SKS, but it was legally purchased at an AgQuip field day in the mid-1980s. He had become aware it had been made illegal, he believed, in the mid-1990s, about the time the Firearms Act was passed.
24. He had once attempted to surrender it, and had given it to the police, but they telephoned him and told him to come and collect it, as it could not be registered at that time. He had handed the rifle in when the licensing scheme was coming into force and many farmers had been required to hand in several types of firearms. It was possible that he had handed in the rifle before the prohibition took effect. The same thing had happened in relation to a shotgun he had also surrendered. He did not think he had made any other attempts to surrender the SKS. He had not made use of the amnesties introduced sense 1998 and thought the SKS had been stored on another property at the time of the intervening safe storage inspections. He denied that he had moved it so that it would not be found.
25. As regards the .303/25, he had taken it in order to have it registered as an acquaintance who was moving house needed somewhere to store it. He had not contacted the firearms registry about it, but had spoken to a dealer who had said he could take care of the registration process when he returned from Darwin, which he promised to do. Communications were somewhat difficult at the time because of the COVID restrictions. He had not converted the rifle to .25 calibre, it was a factory conversion and had been stored in his category C safe.
26. He had also mentioned the SKS to the dealer, who had told him there was an amnesty in force and he should take advantage of it as soon as he got back. It was his intention to apply for a category D licence. The SKS had been stored in a firearms safe in his locked 20 ft shipping container, which had been approved for the purpose. He had seen that the container had been broken into but he did not go inside as everything was in disorder and was unaware that the SKS was missing, though he did know the .303/25 was missing.
27. Asked whether that created a risk to the community, he replied that it would depend on whose hands the firearms were in. But he had not told the police about them at that stage. He had told them all that he could confirm and would always try to be helpful. The locked gate at the property was a normal farm gate. He agreed that a thief could enter without breaking in, could find the keys and open the firearms safe. He replied that the keys were in a very secret location but it appeared that they had been found. In the shearers' quarters where he is currently living there is a firearms safe. Contract shooters were needed in the Moree area, and though he could employ one, it would be unviable.
28. Re-examined by Mr Penfold, the applicant reiterated that the list he had supplied in exhibit R3 was comprehensive, but conceded that it was not totally exhaustive because items could be overlooked. As he had stated in para 1 of exhibit R3, the list of stolen items was "true to the best of [his] knowledge" at the date of exhibit R3, but he had not been certain at that time. Even today he was unable to find things he had not previously thought were missing.
29. His 20 ft shipping container had double locking doors and contained his workshop gear, chainsaws, machine parts and chemicals. The SKS was in another lockable container down at the back end. The container had been secured by a padlock that had not been found. The container had been vandalized and the SKS had been removed. There had been about two tons of stuff inside the container, including pumps, saws, and stuff stacked on shelving. At the time he could not get inside the container because stuff was scattered everywhere. The property was 71 km from Moree and the closest neighbour was a café 2 km away. The next was a property between 3 and 4 km away.
30. The applicant also tendered six character references, the contents of which are summarized below.

Respondent's submissions

1. The respondent relied on written submissions filed on 12 October 2022 which, after setting out the background and applicable law, contended that the decision under review was the correct and preferable decision because the applicant had committed two offences against s 36(1) of the Firearms Act by possessing two unregistered firearms, as well as an offence against s 7 by possessing a firearm for which he did not hold a licence or permit, specifically the SKS which, the respondent submitted, was a prohibited firearm within the meaning of s 4 and item 5 of schedule 1, and which, the applicant had admitted, he had owned nearly all his life, but it had never been identified by police in the course of safe storage inspections and never surrendered.
2. He had committed an offence against s 6 of the Explosives Act by handling explosives for which he did not have a licence. He had infringed cl 17 of the regulations by not notifying the Commissioner within 14 days of a change in the premises where his firearms were stored, and he was currently the subject of a CRO until 28 November 2022 for a prescribed offence, specifically "offences relating to the possession or use of a firearm or any other weapon". Further, his statement to police on 19 August 2021 had omitted reference to two unregistered firearms, which he must have been aware had been stolen.
3. The assessment of whether a person is fit and proper within the context of the Firearms Act "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 applicant had held a licence for approximately 45 years and had extensive experience with firearms. The tribunal should infer that he was at all relevant times familiar with firearms legislation, including the registration and storage requirements. He had, however, demonstrated an irresponsible attitude towards firearms laws and could not be trusted to comply with their requirements, and those of explosives legislation.
4. During the period in which the applicant had admitted owning the SKS, there had been several amnesties which provided sufficient opportunity for the applicant's firearms to be registered. Nevertheless, he had not registered the SKS. He had withheld the existence and theft of unregistered firearms from the police and it was not until police located his stolen firearms, both registered and unregistered, that he informed police that two unregistered firearms that had been recovered were his.
5. His lack of candour with police demonstrated that his offences could not be attributable to an inadvertent mistake or momentary lapse of judgment. They extended over a considerable period of time and his reckless attitude had the potential to undermine police efforts to ensure that stolen firearms were recovered and not used or on-sold for nefarious purposes. His failure to comply with his legal obligations suggested that he was not a fit and proper person to hold a licence.
6. In relation to the public interest the tribunal is required to look at the applicant's conduct as a whole, including potential future conduct. In that regard, past conduct of the applicant was a significant guide in assessing likely future conduct (Ford v Commissioner of Police [2022] NSWCATAD 87, [59]). In light of the respondent's submissions in relation to fitness and propriety, the Tribunal should be satisfied that it was not in the public interest for the applicant to continue to hold a firearms licence.
7. In addition, as the offences against s 36 relating to the possession of unregistered firearms were prescribed offences for the purposes of s 11(5)(d) a firearms licence could not be issued on Mr Burey's application for the period of the CRO, which terminates on 28 November 2022. Although not required to do so, the Commissioner could revoke the applicant's licence for the same reason. The discretion should be exercised in a way promoting the principles and objects of the Act. Those principles and objects would be best promoted by revocation, which would be consistent with improved public safety, given the risk that the applicant would disregard his obligations in the future, the prohibition on the possession and use of semi-automatic rifles except in special circumstances, the establishment and operation of the integrated licensing and registration scheme is and encouraging the utilisation of amnesty period to enable the surrender of prohibited firearms.
8. The applicant's conduct in circumstances where he was aware of his obligations under the Act demonstrated an irresponsible attitude towards, and knowing disregard for, firearms laws that were designed to protect public safety.
9. In oral submissions at the hearing the respondent reiterated those points, noting that in Greenhalgh v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 153, which involved fitness and propriety, the tribunal had emphasized the overriding importance of public safety and the unacceptability of virtually any risk. The applicant was experienced with firearms and knew that the SKS and the .303/25 had to be registered. Further, the SKS was a prohibited firearm and the licence which the applicant held at the time would not support possession of it.
10. It was also a case of long-term possession, over perhaps 26 years. The applicant had had many opportunities to dispose of it. It was not a technical breach, as there was a risk to public safety, shown by the fact that the SKS was stolen. At the time of the safe storage inspections, it had been stored at other properties, where the occupants had not necessarily been licensed.
11. He had made a misleading statement to police in his statement of 16 August 2021, as the list of firearms stolen was meant to be exhaustive. He had known at the time that the .303/25 had been stolen and must have had a suspicion about the SKS. It was necessary for the tribunal to make a positive finding that an applicant is fit and proper to hold a firearms licence: EMB v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 63, [45]
12. In considering the public interest, the same conduct was relevant as for fitness and propriety, but the range of matters that could be considered was broader. In this case the applicant's conduct did not consist of isolated incidents. They were not trivial and could not be waived. The decision under review should be affirmed.

Consideration

1. 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.
2. The Tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner's revocation of a licence or permit: s 75(1)(c). 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.
3. Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued 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. Section 11(4)(c) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's intemperate habits or being of unsound mind.
4. The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) 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) 60 CLR 316 and s 140 of 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]. They do, however, provide guidance for the tribunal's exercise of jurisdiction.
5. Conviction of prescribed offence

The conviction

1. The first ground on which the respondent argues in support of licence revocation in this case arises from the applicant's being found guilty at Moree Local Court on 29 November 2021 on two counts of "possess unregistered firearm - not pistol/prohibited firearm - T2" and without conviction, being placed on a CRO for 12 months concluding on 28 November 2022. The offence which the court found proved is prescribed by cl 5(1)(a)(i) of the Regulation for the purposes of s 11(5)(b).
2. A third count for the same offence was withdrawn (exhibit R1, p 3). According to the police fact sheet, the firearms in question were a "SKS semi-automatic rifle, 303 converted to a 25 rifle and a Lithgow .22 rifle" (exhibit R1, p 23). From all evidentiary indications one must infer that the .303 referred to was a Lithgow factory conversion of the standard military Short Magazine Lee-Enfield (SMLE), which for many years (and perhaps still) was available chambered for a .303 cartridge with a .22 or .25 bullet. When it was discovered that the .303 and the Lithgow .22 were the same rifle, the third count was withdrawn.

The prescribed offence and the CRO

1. Section 24(2)(a) of the Firearms Act provides that a licence may be revoked for any reason for which a licence would be required to be refused. Section 11(5)(d) provides that a licence must not be issued to a person who in relation to an offence prescribed by the regulations is subject to a CRO imposed in New South Wales. For the purposes of s 11(5)(d), cl 5(2) with cl 5(1)(a) prescribes "An offence relating to the possession or use of a firearm or any other weapon, or a firearm part or ammunition, committed under: (i) the law of any Australian jurisdiction….". The offence under s 36(1) of which the applicant was found guilty was thus a prescribed offence. It also involved a contravention of s 7, as it was constituted by possessing a firearm for which he did not have a licence or permit, the SKS semi-automatic, for which he would have needed a category D licence, whereas he only held a category ABC licence.
2. Consequently, a licence application lodged before the expiration of the CRO on 28 November 2022 would be required to be refused.
3. As s 24(2) states that a licence "may" be revoked for those reasons, revocation on those grounds is not mandatory and the respondent (and on review this tribunal) has a discretion in the matter. It is sometimes said to be "anomalous" that a person who is convicted of a prescribed offence or made subject to a CRO is disqualified from applying for a licence, but if the same person is convicted of a prescribed offence or made subject to a CRO while holding a licence, the tribunal has a discretion with respect to whether the licence should be revoked: Kalinic v Commissioner of Police, New South Wales Police Service [2006] NSWADT 227, [23].
4. The situation is not necessarily anomalous, however. In the case of a person who already holds a licence, the Commissioner can consider the person's licensing history. If it shows a long record of conscientious compliance, it may be seen as appropriate to waive an isolated breach of the regulatory scheme. But where a person is applying for a licence for the first time, there is no prior record to consider and consequently no basis for exercising a discretion in the applicant's favour.

A prohibited weapon?

1. The respondent submitted that the applicant's offences were aggravated inasmuch as the SKS was a prohibited weapon within the meaning of s 4 and item 5 of schedule 1 and could not have been covered by a category D licence were the applicant to obtain one. Item 5 refers to "Any self-loading centre-fire rifle of a kind that is designed or adapted for military purposes". The respondent pointed out that in the jurisdictional case of Bankowski v Commissioner of Police [2020] NSWCATAD 175 the Tribunal had found that the rifle for which the applicant in that case had sought a permit was a prohibited weapon. It was a model K5 - 30, which was an export version specifically made for the Australian commercial market. The Tribunal found that it was "functionally identical to the Type 56 [military version] in terms of its operation and ability to discharge ammunition", (at [36]), expressing the view that as the Act seeks to restrict the availability of all semi-automatics (s 3(2)(a)), the phrase "of a kind" should be construed broadly (at [34]).
2. Lee v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 254, [139] raised the question of whether a commercial version of a military weapon, with such features as full automatic capability, battle sights, bayonet standard and pistol grip removed, could still be described as "of a kind that is designed or adapted for military purposes". An expert witness in that case (which I heard) explained that the multiplicity of designs and models of semi-automatic firearms made identification itself difficult (at [139]). In that case the respondent's evidence itself had misidentified two different weapons (at [139] - [140], [151]).
3. The evidence in this case identifies the unregistered rifle simply as an SKS semi-automatic rifle. It does not identify the model or type or offer any detailed description of it. There is no photograph of it in the documents. Without such evidence, presumably from an expert source, it is not possible to say whether it is of the same description as the one in issue in Bankowski.
4. There is also a question of interpretation. As the respondent pointed out, the stated objects of the Firearms Act includes s 3(2)(a), "to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances". Section 8 provides, however, that a category D licence may be issued for "self-loading centre-fire rifles" but not for the military types described in item 5. As the Act thus creates two different classes of semi-automatic centre fire rifles, one which can be licensed and the other (the prohibited military category) which cannot, the construction of the language "of a kind that is designed or adapted for military purposes" must draw a distinction between the two.
5. The fact that a rifle is functionally identical with a military design "in terms of its operation and ability to discharge ammunition" (Bankowski [33]) is insufficient to make it a military design, as all semi-automatic rifles have that capability, including those that can be licensed under category D. The evidence in this case is thus insufficient to show that the SKS was a prohibited weapon. The attending police may have been of a similar opinion, as they charged the applicant with "possess unregistered firearm not pistol/prohibited firearm - T2" (my emphasis).
6. Although the SKS had been purchased at a time when it was lawful to do so, the applicant became aware in about 1996 that it would now be necessary to apply for a licence for it. He surrendered it to the police, but was asked to come and collect it, presumably because although the legislation had been enacted, it may not have come into operation, or the procedures for licensing were not ready, or for some similar reason. He was content to take no further action on the matter, however, and allowed several safe storage inspections and amnesties to pass without raising the matter with police, with whom he was on several occasions less than candid.
7. In his evidence the applicant stated that before leaving for Darwin in mid-2021, he had raised the issue of the SKS with a gun dealer, who said that there was currently an amnesty in effect and the applicant could take steps to regularize the matter on his return from his vacation. As that evidence was not challenged, it may be accepted, but the fact remains that the applicant waited for some 26 years before putting the matter to rights. That constitutes a major blot on his firearms record and a weighty consideration relevant to the exercise of the discretion in s 24(2).

The unregistered SMLE

1. The other unregistered firearm was the 1942 .303/25 SMLE. The applicant's evidence, unchallenged on this point also, was that he had been entrusted with it a couple of days before departing for Darwin by an acquaintance who was moving house and needed somewhere to store it. He had raised this matter with the gun dealer also, and it had been arranged that he would bring it in for registration while the amnesty was in force, on his return from Darwin.
2. That was not the proper manner to proceed but, unlike the possession of the SKS, it could be regarded as more in the nature of a technical breach and as meriting comparatively little weight.

The Explosives Act offence

1. Section 6(1) of the Explosives Act 2003 creates an offence of handling explosives without a licence: 6 Licences required for handling explosives and explosive precursors (1) A person must not handle an explosive or explosive precursor if - (a) the regulations require the handling to be authorised by a licence under this Act, and (b) the person is not authorised to do so by a licence under this Act….
2. In the course of the ERISP interview, Det. Sgt. Ryan asked the applicant if there might have been any explosives on the premises that might have been stolen as well as the other items (exhibit R4, p 13), thinking that the offenders might have used an explosive to accelerate the fire. Believing that he was being asked about explosives that he used for removing stumps, desilting dams and similar farm purposes, he informed police that he had a quantity of powergel that was kept in a locked storage caravan (id., 14). It had not been stolen and he had destroyed it after the break-in.
3. He admitted to police that he did not have a licence to possess or use powergel, explaining at the hearing that he had completed the course that was a precondition to obtaining a licence, but had not actually obtained it because he had been away when the examination was held. He had not used it himself, but had arranged for licensed operators to do so. The quantity kept in the locked storage van had been left over from earlier jobs.
4. He was charged under s 6(1) of the Explosives Act and on the same day as the Local Court hearing for the possession offences was made subject by Magistrate Kemp to a 12-month CRO concluding on 28 November 2022, concurrently with the CROs for the other contraventions. It was not suggested that this contravention entailed any specific risk to public safety, but it does show a laxity towards the legislation governing the handling of dangerous substances. It is chiefly relevant under the issues of fitness and propriety and public interest.
5. The facts relating to the conviction for a prescribed offence and the CRO are for the most part not in dispute. As to whether they should be taken to activate the discretion in s 24(2) to revoke the applicant's licence, it is helpful to consider them in the context of the issues of fitness and propriety and of public interest, which are evaluated later in these reasons.

Fit and proper person

1. The next ground on which the respondent's case was based was that the applicant is no longer a fit and proper person to hold a licence. Section 24(2)(c) creates a discretionary power to revoke a firearms licence "if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence".
2. 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) 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…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.
3. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (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.
4. 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].
5. 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, [22].
6. The reasons given above in relation to a prescribed offence of possessing an unregistered firearm are relevant to the fitness and propriety issue. The respondent contends that the tribunal should infer that the applicant was at all relevant times familiar with firearms legislation, including the strict requirements regarding registration and storage. During the period he had admitted owning the SKS, there had been several amnesty periods which provided him with a means to safely dispose of, or register, unregistered firearms without fear of penalty. In the respondent's submission, his failure to register the SKS was inexcusable.
7. The respondent contended that the applicant had not, as he had claimed, cooperated with police and told them everything they needed to know, as he withheld the existence and theft of the two unregistered firearms. It was not until the police located the stolen weapons, both registered and unregistered, that he informed police that two of the recovered unregistered items were his. His lack of candour and honesty with the police showed that his offences could not be attributed to an inadvertent mistake or momentary lapse in judgment.
8. The applicant countered by arguing that he had been completely cooperative with the police in their investigation, despite having to deal with the devastating loss of his home at that time. During the ERISP interview, he submitted, "the Applicant put his hand up and admitted to police, …. that he was in possession of two firearms that were unregistered. This is not in contention. Such was his honesty that, in the instance were the Applicant did not admit to owning those firearms, the police would likely not have charged to the Applicant with those offences due to a lack of evidence" (part exhibit A1).
9. He had entered pleas of guilty to the offences on 29 November 2021, at the first available opportunity. Given his complete lack of record and otherwise upstanding reputation, he was not convicted of those charges.
10. He had never used firearms improperly and had always stored them securely and safely over many decades, which demonstrated that he has a knowledge and ability to abide by the conditions of his licence. There is no evidence that the applicant has himself ever posed a risk to public safety.
11. The respondent also submitted that the applicant had infringed cl 17 by failing to notify the Commissioner within 14 days of changes of storage address. The applicant's evidence was that he had kept firearms at his brother's property or another location for short periods in connexion with particular jobs. The evidence is insufficient to establish that he used another storage address for a period that would have required notifying the Commissioner.

The references

1. The applicant tendered a number of character references, which are contained in exhibits A2 and R1. Mr Gary Bruce Reeves wrote on 12 October 2021 that the applicant has always shown personal characteristics uncommon in society today. His stalwart personal moral beliefs extend to the love of his country, its people, his family and his mates. The Burey and Chaffey family roots stemmed back to the early settlement of Guyra and Glen Innes in the late 19th century, with the second-generation family farm still operating in family hands today. Greg showed of the fortitude of those pioneering families. He had served in the army reserve and his son had carried on the family principles and served with the army in Afghanistan.
2. Growing up on the farm gave Greg a thorough familiarity with firearms and the responsibility of ownership of them. He has a history of successful competitive shooting and continues to be active in the Glen Innes Gun Club. He had informed Mr Reeves of the offences, and the latter believes it is out of character for him and knows that it has taken a significant toll from him. He also knows that the suspension of his licence as a result had also been hard on him.
3. Mr Walter Maryska of WLM Consulting Pty Ltd stated that he had known the applicant for over 35 years, partly in assisting him with the eradication of feral pigs and foxes on several properties in the area before harvest. Major (Ret.) Walter Marr of Glen Innes had known the applicant for 40 years and found him throughout that period to be a hard-working, honest, trustworthy, reliable and respected member of his community. He joined the army reserve as a member of the 12/15 Hunter River Lancers, where he demonstrated all the attributes of a first-class soldier.
4. As his squadron CO, Major Marr could attest that the applicant received training in a variety of weapons and was skilled and qualified in their operation, maintenance and all aspects of safety. He is aware of the possessing charges but firmly believes that he should be allowed to retain his firearms licence as it is essential in his work in the agricultural industry.
5. Mr Mark Sirl has known the applicant personally for over five years and in that time, he has been engaged in Mr Sirl's business to provide farming, mustering, stock work, culling, maintenance and other general farm duties on a contract basis. Some of the tasks that Greg had performed required the use of a firearm, including putting down sick and injured livestock, destruction of feral animals including pigs and foxes and culling of kangaroos. In the period that the applicant has not held a firearms licence, his work opportunities with the business have been curtailed.
6. Mrs Carole Cutler runs a sheep and cattle property in the north-west with her husband Stephen and they have known the applicant for almost 40 years. He is a hard-working, responsible, decent man. Unfortunately, some unsavoury men of very low character had burned his house to the ground and he lost treasured possessions that he had held very dear as well as all his work tools. He also lost his gun licence.
7. As everyone in the country knows, Mrs Cutler wrote, the most essential item without which you do not leave home to drive around the paddocks is a gun. When they come across an injured, distressed animal that is beyond saving and needs to be put out of its misery quickly and humanely, the only way to do it is with a gun. Like everyone else in the country, the applicant has shot many a wild dog that was murdering their sheep. His employment opportunities are therefore greatly compromised, as no-one is going to employ him if he is unable to carry a gun for wild and feral animal control or the simple fact of putting down an injured animal.
8. They all love their working dogs and it saddens Mrs Cutler and her husband to see Greg's dogs now. They were always healthy, shiny, and well fed when he was able to carry a gun and feed them meat. Now the poor dogs live on dog biscuits, which is not good enough for a working dog.
9. In the country there are few avenues of escape through relaxation. Therefore, the other very sad fact of the injustice that had been done to Greg was his inability to attend his much-loved clay pigeon target weekends. He not only participated, he also spent quite some time, when able, in organizing and sponsoring those weekends. It was a great opportunity to see his friends and have a little time out from the constant workload that they all struggle under.
10. Mr Ralph Larkings, president of the Glen Innes Clay Target Club Inc., states that the applicant has been a member of the club since 1980. In his time with the club he has become a close friend, mentor or and coach to many. His dedication, honesty and hours of volunteering over the years are a testimony to the generous man he is.
11. Throughout his time, he has not only participated and volunteered for the club, but for many clubs throughout Australia, as well as travelling overseas to join other competitions. His passion and drive for the continuation of the sport are attributes that others admire. The dedication is evident in that Greg runs his own program as part of July's clay target shooters annually, to encourage participation and skills. The referees were not required for cross-examination.
12. The evidence and submissions relating to the applicant's fitness and propriety to hold a firearms licence are evaluated below.

The public interest

1. The other main ground on which the respondent relies is that it is not in the public interest for the applicant to hold a licence within the meaning of s 24(2)(d) and cl 20.
2. The "public interest" factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They 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, New South Wales Police Force [2013] NSWADTAP 16.
3. The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.
4. As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1], the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Similarly, in Hill the tribunal stressed that public safety is to be given paramount consideration.
5. Tribunal decisions have pointed out that the question of potential risk to public safety is not to be applied in an absolute manner, 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, [64] - [66] 66].
6. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "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". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].
7. The respondent submitted that the tribunal was required to look at the applicant's conduct as a whole, including potential future conduct. In that regard, past conduct of the applicant was a significant guide in assessing likely future conduct: Ford v Commissioner of Police [2022] NSWCATAD 87, [59]. In light of the respondent's submissions summarized above and the importance of the integrity of the firearms licensing system referred to in Constantin, the tribunal should be satisfied that it is not in the public interest for the applicant to continue to hold his licence.
8. The applicant's position was that the applicant does not pose a risk to public safety and consequently it is in the public interest for his licence to be reinstated. His significant history of compliance in his various capacities involving the use of firearms demonstrated that he did not pose a risk to public safety. Importantly, his firearms were secured in safes when he went away to the Northern Territory for the shooting competition.
9. There was no suggestion that they were not properly secured and there was nothing more that the applicant could reasonably have done in order to secure them. In addition, he lives in a remote rural area about 70 km west of Moree. The fact that his firearms were stolen should not weigh against him on the issue of public safety, given that he had met all of his legal requirements for properly securing them. Nor was there any suggestion that he had otherwise improperly used firearms.

Evaluation and findings

1. The applicant is a man aged 63 engaged in farming, grazing and rural contracting in a remote area of the state west of Moree. He has no criminal convictions and until 2021 had no criminal history at all. He is well regarded in the area for his integrity, work ethic and active devotion to the community. His family are long established and well esteemed in the area also. Because of his prior record, his high reputation and the circumstances that gave rise to the charges, Magistrate Kemp at Moree Local Court discharged him without conviction on the possession charges with a 12-month CRO concluding on 28 November 2022.
2. He has no history of violence, threatened violence or of psychiatric problems. He has no record of negligent or dangerous use or storage of firearms during the 35 years he has been authorized for firearms, including active participation in the local gun club, competitive shooting and creditable service in the army reserve in the Hunter River Lancers. His son also served in the army, being deployed to Afghanistan with the SAS, suffering PTSD as a result and currently being in receipt of a veteran's pension.
3. His life in recent years has been marred by tragedy. His elder daughter (with whom he frequently enjoyed going shooting) died tragically in 2019, apparently in a fire. His mother died 10 days later and his partner of 12 years died of cancer after a long illness in early 2021. That background meant that the break-in and arson on 14 August 2021, as a result of which he lost all his personal possessions, including family memorabilia, was all the more traumatic for him, which may have affected his judgment in dealing with the police investigation.
4. The blot on his escutcheon is the unregistered possession of the SKS semi-automatic centre-fire rifle, for which he also had no applicable licence. The respondent's other grounds in support of revocation essentially depend on that contravention. The unregistered SMLE matter I regard as an essentially technical breach not meriting substantial weight.
5. Although he had acquired the SKS lawfully, and he made one unsuccessful attempt to surrender it to police when the 1996 firearms legislation came into operation, he took no steps to dispose of it lawfully or seek to have it licensed for 26 years. He failed to take the opportunities presented by several safe storage inspections and amnesties to put the matter to rights. The evidence is that before leaving for Darwin he had arranged with a gun dealer to surrender the SKS pursuant to the then current amnesty, but that plan was derailed by the break-in and arson at his property.
6. The respondent was rightly critical of the dissimulation involved in the applicant's long-term retention of the SKS. Although in most respects he had a mutually respectful relationship with the police, it was not until the investigation recovered a number of the stolen firearms that he volunteered the information that two of them were his and were unregistered, thereby making it likely that he would face criminal charges, as he did.
7. Although it did not relate directly to firearms, his unlicensed possession of powergel showed a selectively lax attitude to compliance with legislation directed to public safety. There is no evidence that he personally used the explosive, although he undoubtedly knew how to do so. He made no attempt to conceal it, however, and candidly admitted possession of it in his ERISP interview with police.
8. The picture is thus one of a man of high repute and antecedents who has incurred a major stain on his record. A relevant authority in those circumstances is Matus v Commissioner of Police [2022] NSWCATAD 111, in which the tribunal had to deal with a case in which the applicant had received a s 10 dismissal on a charge of possessing an unregistered firearm. Police had found him to be in possession of two firearms that were not registered to him, one of which was not registered at all.
9. Further, the applicant Matus in his licence applications had made false statements about past psychiatric treatment, and his living arrangements placed him in close proximity with two persons of known criminal proclivities. In ordering the issuance to the applicant of a licence subject to conditions about storing his firearms away from his residence, the tribunal said, "I accept that it [the offence] reflects badly on his attitude towards the strict requirements under the Act. Nevertheless, the Court's order [the s 10 dismissal] reflects the actual risk to the public from the conduct. In my view this is not an issue that should be given any significant weight in regard to the issue of whether it is not in the public interest for the licence application to be granted" (at [77]).
10. In similar vein, in another recent case, Moss v Commissioner of Police [2020] NSWCATAD 262, the tribunal chose not to affirm the revocation of a licence for a safe storage violation but instead suspended it to permit the applicant to undertake a firearms safety course (at [42] - [43]). In this case, however, as there is no doubt about the applicant's willingness and ability to use and store firearms safely, there would be little point in his undertaking such a course.
11. Experience since 14 August 2021 has presented the applicant with a powerful object lesson, however. He has been without his licence for some 15 months, which has seriously impacted his earning capacity. As his referee Mrs Cutler pointed out, in this kind of work firearms are an essential tool of trade, especially in that region where, the applicant said, vermin pressure can be intense. Now the applicant cannot engage in contract shooting. He lost most of a wheat crop to the depredations of vermin. He had to relinquish a sharefarming agreement as he was no longer able to meet his contractual obligation to control pests. He estimates his total financial loss resulting from licence suspension and revocation as well exceeding $100,000. While a financial interest in retaining a firearms licence cannot prevail over public safety considerations, it is also not irrelevant.
12. The applicant has accepted responsibility for his contraventions and his referees attest that they have taken a heavy toll of him. In my view there is no significant risk that the applicant will reoffend, display the selective laxity towards the firearms and explosives licensing schemes' requirements that he did formerly or otherwise represent a risk to public safety. He is now a fit and proper person to hold a firearms licence and I so find.
13. As regards the public interest, the considerations and conclusions set out above in relation to fitness and propriety also apply under this heading. It was contrary to the public interest for the applicant to possess the SKS semi-automatic unregistered over a long period and while holding an ABC licence that did not cover that category. That conduct runs athwart the statutory objectives in s 3(2) of prohibiting the possession and use of semi-automatic rifles and shotguns except in special circumstances and of establishing an integrated licensing and registration scheme for all firearms.
14. That conduct also involved an extended period of dissimulation reflecting no credit on the applicant. The licensing scheme depends for its efficient operation on full and frank cooperation by licensees with the statutory requirements and procedures.
15. The respondent submitted that the applicant had behaved in a manner endangering public safety, as in the event the SKS was stolen and fell temporarily into the hands of criminal elements. While that is true, it is also true, as Mr Penfold contended, that the applicant's safe storage arrangements were fully compliant with legal requirements and that there was nothing more he could reasonably have done to guard against theft of his firearms before departing for Darwin. In such circumstances the risk of theft was no greater than that presented by any other licensee keeping firearms in approved safe storage. The fact that the SKS was unregistered did not increase the direct risk to public safety.
16. That argument, though plausible, only gets the applicant part of the way. It leaves untouched the conflict with the statutory objectives of restricting the availability of semi-automatic rifles and of implementing a dependable and comprehensive licensing and registration scheme.
17. As against that, the applicant has accepted responsibility for his contraventions and has paid a heavy price for them through the criminal proceedings, the CRO and the loss of work, recreational and business opportunities.
18. It is not disputed that the applicant has sustained substantial economic loss through being excluded from opportunities such as contract shooting, as well as loss of crops through the attentions of vermin and the need to relinquish a sharefarming arrangement as a result of inability to fulfil his contractual obligation to control pests. He estimates the loss in the period of 15 months during which he has been without his licence as well in excess of $100,000.
19. Financial loss resulting from licence loss cannot outweigh the need to safeguard public safety, but it can be taken into account. It is in the public interest for law-abiding farmers and graziers to have access to long arms for the protection of the environment and of primary industry. The applicant has not, of course, been entirely law-abiding, but on the whole, he has met the requirements of public safety in firearms use and storage. He has accumulated 35 years of licensed firearms possession without any other infringements of the statutory requirements. There is no suggestion that in the course of his long experience as a shooter and in the army reserve that he has ever used or stored firearms in a careless or dangerous manner.
20. The evidence before the tribunal leads to the conclusion that the applicant's possession and use of firearms presents no "real and appreciable risk" to public safety, as understood in Webb, and that the statutory discretion should be exercised in his favour. In my view the restoration of the applicant's ABC licence would not be contrary to the public interest, and I so find.

Order 1. Decision under review set aside. 2. A category ABC firearms licence is to be reissued to the applicant.

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: 28 October 2022