As noted, the Applicant attended the hearing and was cross-examined. He provided an explanation for his earlier assault charges. He explained that he grew up in a family where there was considerable alcohol abuse and domestic violence. He was in a violent family arrangement in which he was assaulted regularly. He said that the abuse had escalated over many years, and he submits that his conduct concerning his family should be viewed in that context.
He said that he has had no contact with his family since late 2014.
The Applicant relies on references provided on his behalf. While it is not clear whether those providing the references are aware of the full details of the matters on which the Respondent is relying, it is clear that the Applicant is well regarded by those referees.
The Applicant does not dispute that he was convicted of assault in regard to the 2005 and 2007 incidents. In relation to the 2005 incident, his evidence is that he was the one who called the police and he alleged that he was being assaulted. In relation to the 2007 incident, he denied the allegation that he threatened anyone with a spear-gun.
In relation to the January 2014 incident that resulted in the allegation that he had assaulted his former partner, he denied the allegation. Initially he gave evidence that he was not at his former partner's residence on the night of the incident. However, he subsequently changed his evidence on that issue. After he was taken to a transcript of an interview with police in relation to the incident, he accepted that he had attended his former partner's residence on the night. He agreed that his evidence to the contrary was wrong. Nevertheless, he denied the allegation that he had assaulted his former partner. As noted, the charge in relation to the January 2014 incident was dismissed.
The Applicant denies that he has ever had an instance of self-harm. In regard to his mental health he relies on the report provided by psychologist Mr Kruger-Davis. Mr Kruger-Davis concluded:
In formulating my opinion, I have considered the following:
• Mr Butusel (sic) presents to be of 'sound mind'.
• On assessment he does not currently present with depression, anxiety, or overwhelming psychological distress. He does not have a mental disorder, personality disorder or substance abuse disorder as listed in the Diagnostic and Statistical Manual of Mental Disorders; Fifth Edition (DSM-V).
• He does not drink alcohol excessively or take illicit or prescribed drugs that would impact on his ability to possess and use firearms.
• Mr Butusel does not have any criminal convictions nor does he hold criminal associations.
• Mr Butusel does not pose a suicide risk. There are no predisposing, precipitating or perpetuating factors that would elevate his suicide risk profile. He has a number of sound protective factors that indicate he is looking forward to his future. He currently holds no fears for the future.
• While he grew up in a family that abused alcohol and was violent, Mr Butusel has demonstrated that he has the skills exit himself from his family. This will be even less of an impact when he moves from Newcastle to Narromine.
• There are currently no factors that would indicate he would not be able to exercise will power and continuous control if he were to possess and use firearms.
In my expert opinion, when Mr Butusel answered questions regarding his background, the concerns the NSW Police raised in the refusal of his application and the mental status examination and suicide risk assessment, I found his narrative to be truthful and honest and I could not detect any indications of any intent to deceive or otherwise influence the substantive effect of my report.
The clinical interview, mental status examination and suicide risk assessments are standard psychological practises for conducting mental health assessments. These are coupled with empirical assessments that have inbuilt reliability and validity measures. My 35 years as a psychologist allows me to identify most attempts to deceive when interviewing clients.
RECOMMENDATION
From the information provided above, it is my professional opinion, that Mr Butusel is of sound mind and would be able to exercise rational judgement and responsible control over the possession and use of firearms.
It is my professional opinion, Mr Butusel is very unlikely to pose a threat to the public or himself, if he were to possess or use firearms.
I have made all the enquiries within my level of expertise which I believe are desirable and appropriate and no matters of significance which I regard as relevant have, to the best of my knowledge, been withheld.
The Applicant disputes that it is contrary to the public interest for him to hold a firearms licence. He stated that it has been 14 years since his last criminal charge and 3 years since his last traffic offences.
Mr Kable, the Applicant's solicitor, submitted that this is a matter where the Tribunal should find that there is no reason for concern in regard to the Applicant's mental health. He disputes that there was any misrepresentation regarding the Applicant's mental health as there was no mental health issues to declare. This much is clear from Mr Kruger-Davis' report.
In regard to the Applicant's criminal record and driving history, Mr Kable referred to the decision in Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272 in which Senior Member Walker observed at paragraph [47]:
Licence holders are not required to have led entirely exemplary lives ...
He submitted that there have been no recent incidents in the Applicant's life that should cause the Tribunal concern in regard to the risk to the public if the Applicant were to have access to firearms. He noted that the most recent incident occurred in January 2014 and the Applicant has denied that he assaulted his former partner. Mr Kable also noted that the charge against the Applicant was dismissed.
In regard to the Applicant's driving record, Mr Kable submitted that there have been no offences since June 2019.
In regard to the Applicant's continued assertion that he did not assault his former partner, Mr Kable referred to comments by Senior Member Walker in Green v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 59 where he observed at paragraph [63]:
"… attaching substantial weight to lack of remorse can be somewhat problematical. Unfortunately, it is not unknown for a person to be inappropriately sentenced or wrongly convicted. In some instances people have pleaded guilty to offences they did not commit, sometimes as a result of pressure. In a Migration Act case in the federal Administrative Appeals Tribunal, I made this observation:
"My own view has always been that a person who genuinely believes himself or herself to be innocent of, or less than fully blameworthy for, an offence should be permitted to say so without being unduly prejudiced for it. The real question is what the denial says about the offender's record, mitigating circumstances, any persistent tendency to self-identify as a victim and the general reasonableness or unreasonableness of the claim": Re Toro Martinez and Minister for Immigration and Citizenship [2008] AATA 511, [101].
Mr Kable submitted that given the time that has passed since the Applicant's last criminal offences and driving offences, there is virtually no risk to the public if the licence is granted.
[2]
Consideration
This is a matter in which there has clearly been a long history of conduct by the Applicant which suggests that for a long time his life was unsettled. I accept that he grew up in a family environment where alcohol abuse and violence was common. However, to a large extent the record is not open to question.
The Applicant has sought to explain the circumstances of the assault allegations and to downplay his involvement. There can be no doubt that the 2005 and 2007 assault charges were proven. It is also clear that the Local Court dismissed the charge of assault occasioning actual bodily harm arising from the January 2014 incident. The Applicant was alleged to have assaulted his former partner and he continues to deny the allegations.
In regard to the allegation that the Applicant provided false and misleading evidence in regard to the January 2014 incident, the Respondent submitted that the incident resulted in a charge against the Applicant and a court appearance. The Applicant had previously admitted in an interview with police that he had been at his former partner's residence on the night of the incident. I agree with the Respondent that it is implausible that the Applicant would now believe that he had not been or that he would have mistakenly made the assertion that he had not been at his former partner's residence.
The level of co-operation and frankness demonstrated by a licensee in dealings with the regulator is indicative of the licensee's character: DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at paragraph [57].
In my view, the Applicant's evidence on this point was purely self-serving and reflects poorly on the Applicant. This is problematic as far as the privilege of firearms licensing is concerned. An applicant for a firearms licence is expected to demonstrate a high degree of frankness and cooperation in relation to matters that are relevant to the question of whether the licence should be granted.
As noted above, I have been provided with some material on a confidential basis and the Applicant has not had access to that material. An order has been made under section 64 of the NCAT Act in relation to the confidential material.
An order was also made under section 49 of the NCAT Act that part of the hearing was to be conducted in private, in the absence of the Applicant and his solicitor. In that private hearing, the confidential material was considered. I have decided to give weight to the confidential material.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
I do not consider that any weight should be given to the issue of the Applicant's alleged self-harm. In light of the uncontested report from psychologist Mr Kruger-Davis I have no basis to conclude that the Applicant had withheld relevant mental health related information in his licence application.
The Tribunal can have regard to a wide range of factors in determining the public interest. The consideration is not limited to matters arising under the Firearms Act.
In regard to the Applicant's traffic record, there can be no doubt that his history of offences is significant. It is to his credit that he has had no recorded offences since June 2019. However, no explanation has been provided in regard to the reason for the change. For example, if he had made a deliberate decision to change his behaviour, it would assist his case. However, if he had not been driving during that period, or if he had not been in NSW, it would not be significant that he does not have any recorded offences.
The Tribunal has held that an applicant's history of repeated breaches of traffic laws and regulations is a relevant consideration in regard to firearms licensing issues. The traffic laws and the firearms legislation are all directed towards ensuring public safety. In Keegan-Jaques v Commissioner of Police (2017] NSWCATAD 145, SM Scahill said at paragraphs [57] and [81]:
57. The Applicant was unable to recall the traffic offences. Some of the offences are repeated e.g. speeding, PCA and not wearing a seatbelt - the last, on three occasions. On one view this demonstrates that the receipt of infringements had made little impact on the Applicant. They did not cause him to change his behaviour. The repeated infringements also suggest a lack of concern for either the public's or his own safety.
…
81. The Tribunal is satisfied, viewing the Applicant's conduct as a whole, that it is not in the public interest for the Applicant to hold a firearms licence. The Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety. The Tribunal considers it is relevant that the Applicant was in possession of what on balance appears to be a prohibited weapon. The Applicant professed ignorance of this and said he was not an expert on firearms.
In the circumstances if this matter, where the Applicant's history is significant, more would be required than the mere passage of time to show that the Applicant has changed his ways and undergone reformation of character.
The Applicant's history suggests that conformity with regulations intended to promote public safety and considering the public interest, such as traffic laws have not been a priority for him. This is inconsistent with the expectations of a firearms licensee as set out in the objects and provisions of the Firearms Act.
The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety. The traffic laws are also directed towards ensuring public safety. The Applicant's repeated breach of traffic laws indicates a disregard for a regulatory scheme aimed at ensuring public safety.
I accept that the lack of criminal convictions is significant. I also accept that the majority of the Applicant's misconduct was in his youth. However, as I have indicated above, the evidence in relation to the January 2014 incident is problematic.
Viewing the Applicant's conduct as a whole, it is my view that at this time it is not in the public interest for him to hold a firearms licence. In the circumstances I cannot be satisfied that there would be virtually no risk to the community if the Applicant is permitted to possess firearms.
This situation may well change given the passage of more time if the Applicant continues to demonstrate that he has developed a responsible attitude to compliance with his obligations. However, at this time the correct and preferable decision is the refuse to grant the licence that he is seeking. Accordingly, the Respondent's decision should be affirmed.
Given this finding, it is not necessary that I determine whether or not the Applicant is a fit and proper person to hold a firearms licence.
[3]
Decision
1. The decision under review is affirmed.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 01 December 2022
Parties
Applicant/Plaintiff:
Busutel
Respondent/Defendant:
Commissioner of Police, NSW Police Force
Cases Cited (14)
The Tribunal's Approach
The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all material first considered, together with any further relevant material to either confirm the original decision, vary it, or set it aside and substitute another. The Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law: section 63 of the Administrative Decision Review Act 1997 ("the ADR Act").
The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the Commissioner's decision is correct.
These are not adversarial proceedings in which the Applicant carries an onus of proof. By making the application, the Applicant triggers a process of merits review by the Tribunal. He does not take on the responsibility of having to prove a case, nor does he cause the Commissioner to have to prove a case. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities.
Under section 38(2) of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act"), the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
Section 49 of the NCAT Act provides:
49 Hearings to be open to public
(1) A hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise.
(2) The Tribunal may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.
Section 64 of the NCAT Act provides:
(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders -
(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),
(b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal,
(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,
(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.
...
(4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
The Tribunal must exercise its discretion in determining a review in a manner that promotes the principles and objects of the Firearms Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at paragraph [23]. The discretion must be exercised keeping in mind the activities which are authorised by a licence under the Firearms Act.
Applicable legislation
Section 9 of the ADR Act provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred by section 75 of the Firearms Act. The Tribunal's jurisdiction includes review of decisions by the Commissioner to refuse an application for a firearms licence.
This application is made under section 75 of the Firearms Act and the ADR Act.
The Firearms Act sets up a scheme to license people to possess and use firearms. One of the underlying principles of the Firearms Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms.
The underlying principles of the Firearms Act provided clear guidance as to how it is to be administered generally. Section 3(1) provides:
(1) The underlying principles of this Act are:
(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and
(b) to improve public safety:
(i) by imposing strict controls on the possession and use of firearms, and
(ii) by promoting the safe and responsible storage and use of firearms, and
(c) to facilitate a national approach to the control of firearms.
The Commissioner, and therefore the Tribunal, has discretion in regard to the issues to be decided in this matter. The Firearms Act provides no guidance on how that discretion should be exercised. However, in Minister for Immigration and Citizenship v Li [2013] 297 ALR 225, the majority of the High Court stated at paragraph [67]:
[W]here discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority [[1998] HCA 28] requires nothing less. ...
Section 11(3)(a) of the Firearms Act prescribes that a firearms licence must not be issued unless that the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace.
Section 11(7) of the Firearms Act provides that the Commissioner may refuse to issue a licence if she considers that issue of the licence would be contrary to the public interest.
Section 12(1) of the Firearms Act provides that the Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm. Relevantly, section 12 provides:
12 Genuine reasons for having a licence
(1) The Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm.
...
(4) Subject to this Act, an applicant for a licence has a genuine reason for possessing or using a firearm if the applicant -
(a) states that he or she intends to possess or use the firearm for any one or more of the reasons set out in the Table to this section, and
(b) is able to produce evidence to the Commissioner that he or she satisfies the requirements specified in respect of any such reason.
Table
Reason: recreational hunting/vermin control
The applicant must -
(a) be the owner or occupier of rural land, or
(b) produce proof of permission given by the owner or occupier of rural land, or by an officer or employee of the National Parks and Wildlife Service, the Department of Industry or other authority prescribed by the regulations, to shoot on rural land, or
(b1) produce proof of permission given by a land manager within the meaning of the Forestry Act 2012 to shoot on land in respect of which the land manager is authorised to exercise functions as land manager under that Act, or
(c) be a current member of a hunting club approved by the Commissioner in accordance with the regulations.
The regulations may provide for the manner and form in which any such permission is to be given, the extent to which it operates, and how it is to be produced as evidence by the applicant. A person does not, so long as the person is authorised to give permission to shoot on land referred to in paragraph (b) or (b1), incur any liability merely because the person gives the applicant permission to shoot on the land concerned.
...
Fit and proper person
The Firearms Act places an emphasis on the need for licensees being fit and proper for the role. The Tribunal has considered the issue of whether an Applicant is a fit and proper person to hold a licence under the Firearms Act on numerous occasions.
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].
In the context of the Firearms Act, fitness and propriety "must be considered in the context of at all times ensuring public safety": Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at paragraph [22].
The question of a person's fitness to hold a licence is to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake. In the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said:
The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
They went on to say at 388:
The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said:
In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.
Public interest
Section 11(7) of the Firearms Act provides:
Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.
As noted, the Respondent contends that it is not in the public interest for the Applicant to hold a firearms licence. The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence:
"25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal."
The 'public interest' allows issues going beyond the character of the Applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.
"Public interest' embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to 'the public interest' is 'to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.
The licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum.
In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at paragraph [28] Hennessy DP said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Although Ward was a case on the "fit and proper person" test, the formulation has been held to also apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at paragraph [23].
Section 19(1) of the Firearms Act provides:
19 Conditions of licence
(1) A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.
...
The Applicant's application for a firearms licence nominates his "genuine reason" for a firearms licence as "Sport/Target Shooting" and "Recreational Hunting/Vermin Control". In support of the "Sport/Target Shooting" reason, the Applicant identified that he is a member of a shooting club, specifically, the SSAA Newcastle. In support of the "Recreational Hunting / Vermin Control", the Applicant identified that he is a member of a hunting club being, again, the SSAA Newcastle. The Licence was re-issued on the basis that the Applicant maintained those approvals.
Clause 31 of the Regulation provides that a licence that is issued for the genuine reason of recreational hunting/vermin control is subject to the condition that the licensee must comply with any applicable requirements of Part 10 (Participation requirements for club members).
Clause 108 of the Regulation provides:
108 Participation requirements for member of approved hunting club
(1) The holder of a licence issued for the genuine reason of recreational hunting/vermin control to a member of an approved hunting club must be a member of at least one approved hunting club and must, during each compliance period for such a club of which the person is a member, participate in no less than 2 hunting club events.
(2) This clause applies only where membership of an approved hunting club is the sole ground on which the licensee has established the genuine reason of recreational hunting/vermin control.
(3) In this clause -
hunting club event means any event approved by any approved hunting club (whether or not a club of which the licensee is a member) involving hunting, shooting or firearms safety training.
In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court discussed the meaning of the term 'fit and proper' (at 156-7):
"The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or "idoneus") with respect to an office is said to involve three things, honesty knowledge and ability: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do ; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it" - Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."
It is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110. Risk to the public includes risk to the Applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.