Chalhoub v Commissioner for Fair Trading

Background

1. On 11 April 2017, the Applicant obtained a Bachelor of Construction Management from Western Sydney University notably achieving a distinction mark of 78 out of 100 in building law in his 2015 Spring Semester.
2. In 2021, the Applicant, by way of two purchases, purchased five gel blasters being a bolt action rifle, two assault rifles, a pump action shotgun and a pistol (the Gel Blasters).
3. Gel blasters look very much like bullet-shooting firearms, however, gel blasters shoot pellets of water-soaked gel because of a mechanism involving compressed air. In the State of Queensland, gel blasters are regarded as children's toys, and they can be legally possessed. There is no express exception in the Firearms Act 1996 (NSW) that excludes gel blasters from the definition of a firearm in s 4 as there is for a paintball gun. Section 4 states: "firearm" means a gun, or other weapon, that is (or at any time was) capable of propelling a projectile by means of an explosive, and includes a blank fire firearm, or an air gun, but does not include a paintball marker within the meaning of the Paintball Act 2018 or anything declared by the regulations not to be a firearm.
4. Accordingly, it has been held that a gun blaster falls within the definition and is captured by the prohibitions in the Firearms Act 1996 (NSW) including section 7: R v Smith [2023] NSWDC 254
5. According to the Applicant's oral evidence, which I accept is as follows: 1. the Gel Blasters were originally purchased for a dress-up party that the Applicant, his brother, and some friends were attending. The Applicant intended to dress-up as the character Rambo from the Rambo film series. Since that time, the Applicant and his brother have used the Gel Blasters to "fool about" around their house. 2. the Gel Blasters were purchased on-line from a toy shop based in Queensland (whereas noted above, the Gel Blasters are not considered firearms but considered toys) and delivered to the Applicant's home address. The Applicant has also provided evidence of the receipts and purchase consistent with this evidence. The total cost of the Gel Blasters was $963.10. 3. at no time prior to 3 May 2022, was the Applicant aware that the Gel Blasters were considered a firearm and that he was acting unlawfully by acquiring and possessing them.
6. On 3 May 2022, a manager of Housing Services New South Wales, who had been managing the property in which the Applicant, his brother, mother and father resided (the Residence), attended the Residence with the New South Wales' Sheriff to serve an eviction notice and take possession. During an inspection of the Residence, the manager of Housing Services New South Wales observed three of the Gel Blasters on a desk located in the granny flat on the property and contacted police.
7. Later that day, the police attended the Residence and seized the Gel Blasters. The Applicant presented himself to the police at the request of the police and was arrested. The police fact sheet records that the Applicant participated in an interview with the police and made "full and frank admissions" as to acquiring the gel blasters from a toy website. The Applicant indicated that he only used the gel blasters as toys and was not aware that the gel blasters were illegal in New South Wales.
8. The Applicant, and his brother, were charged with possession of unauthorised firearm, unauthorised pistol, and unauthorised prohibited firearms in contravention of sections 7 and 7A of the Firearms Act 1996 (NSW). The Police Fact Sheet states: The Accused has not been charged before and was extremely co-operative and helpful when assisting police. The Accused made full and frank admissions and police are not opposed to the Accused being granted condition[al] bail
9. Other than this charge, the Applicant has no criminal history and has not otherwise come to the adverse attention of the police.
10. On 25 May 2022, the Applicant attended court on the charges related to the gel blasters and was granted bail with the condition that he reside at his home address and notify the officer in charge of any change of address within 72 hours. The reason for bail being granted was as follows: 1. The Applicant had no previous charges. The Applicant is self employed as a concreter and had provided an acceptable address to police for bail. 2. Whilst the offences are of a serious nature there are some extenuating circumstances that mitigate the initial seriousness of these matters. Firstly, the firearms whilst depicting various prohibited as other firearms are realistic in appearance and may on even close inspection appear to be very lethal weapons, they are gel blaster replica items purchased from a toy company in Queensland where they are at this time legal to possess. The Applicant raised that he was unaware of them being prohibited items in New South Wales and further there is no suggestion that the firearms had been used in any further offences of any type. 3. The police case is quite strong with a firearm seized at an address linked to the Applicant and the Applicant has taken part in an interview and provided full admissions to the offence. 4. The Applicant has no history of violence or any other offences before the courts of any type. 5. The Applicant has no known associations with personal groups advocating or supporting terrorists or violent extremism.
11. On 10 August 2022, the Applicant was sentenced to a nine-month Community Corrections Order which ended on 9 May 2023.
12. On 14 August 2022, the Applicant was awarded a certificate of achievement in completing the requirements of Certificate III in concreting by HCR Training.
13. On or around 26 August 2022, the Applicant made application for a contractor licence for general building work (General Building Application). The application included the obligation to declare any criminal history within the last 10 years. No declaration was made by the Applicant.
14. On 29 November 2022, a licensing advisor wrote to the Applicant with respect to his General Building Application which asked the Applicant for information pertaining to Gaton Projects Pty Ltd. The letter alleges that the Applicant was a director of this company and stated that the licensing advisor wanted to consider this information in the context of the Applicant's General Building Application. The information requested included payroll information as well as a National Police Check report.
15. By 9 February 2023 the National Police Check report had not been received by the Applicant. On 9 February 2023, the Applicant updated the licensing advisor of this delay.
16. The Nationally Coordinated Criminal History Check Certificate was later generated and according to the Refusal Notice dated 27 April 2023 relating to the General Concreter Application (defined below), was dated 13 February 2023. A Nationally Coordinated Criminal History Check contains all disclosable court outcomes of an individual. The Check results show all convictions, including traffic charges that lead to convictions and all pending charges. It is issued by the Australian Police authorities and federal government accredited agencies. Accordingly, a Nationally Coordinated Criminal History Check Certificate dated 13 February 2023 pertaining to the Applicant's criminal history would have disclosed the Applicant's charges and sentence related to the Gel Blasters.
17. The Refusal Notice relating to the General Concreter Application refers to the fact that the General Building Application was refused and extracts part of that refusal notice. The basis of the refusal according to that extract was the failure to disclose the fact he was charged with a criminal offence on the General Building Application.
18. On 15 February 2023, the Applicant made application for a contractor licence for a general concreter (General Concreter Application). This is the application the subject of these proceedings. This was omitted from the s 58 Bundle but was subsequently included in the s 58 Supplementary Bundle.
19. With respect to his General Concreter Application, the Applicant included additional details in form 3 which related to his criminal record where he disclosed at part 2.1 the criminal offence as: Possession of firearms
20. He provided this explanation at part 2.2 which was evidently a reference to the fact the firearms were gel blasters: Firearms were fake and were found at home while we were moving
21. The Applicant provided the dates corresponding to the Community Corrections Order including that it was due to end on 9 May 2023 and provided this description at part 2.3 with respect to whether he was currently on probation or parole conditions which was evidently a reference to the Community Corrections Order: Good behaviour
22. Significantly, the Applicant also provided, as part of his application, the National Coordinated Criminal History Check Certificate dated 13 February 2023 as acknowledged and referred to by the Commissioner's delegate in the Refusal Notice.
23. On 27 April 2023, the Applicant's General Concreter's Application was refused by way of a refusal notice (the Refusal Notice). The reasons given for the refusal were: 1. The Applicant had provided a "limited written explanation" about the firearm offence; 2. The Applicant had been charged which resulted in a Community Correction Order; and 3. The Applicant's failure to disclose the offence in his General Building Application and the refusal of that application. The refusal notice relating to the General Building Application was relied upon, referred to and quoted.
24. On 1 May 2023, the Applicant requested an internal review. This is referred to in the Internal Review decision. The cover email from the Applicant is included in the s 58 Bundle but the attachments are omitted in that bundle as well as the s 58 Supplementary Bundle. The character of the attachments can be discerned with reference to the internal review which describes them. They were: 1. The Applicant's letter which, as described in the internal review, included the Applicant's submissions in support of his application; and 2. The National Coordinated Criminal History Check Certificate which is also referred to in the internal review and which was provided by the Applicant for a second time.
25. The fact that neither of these attachments are included in either the s 58 Bundle or the s 58 Supplementary Bundle is discussed below.
26. On 18 May 2023, the internal review was delivered which affirmed the refusal. The reasons given, in summary, were: Despite his assertions that the firearms were toy guns ordered online, [the Applicant] did not provide an explanation as to why he obtained these items found in his possession. Although [the Applicant] detailed the events that occurred which resulted in his convictions, claiming it was a misunderstanding and he never intended to commit a crime, the fact remains that he was convicted of the offences, and this cannot be overlooked. As [the Applicant's] community correction order concluded recently, on 9 May 2023, I cannot be satisfied sufficient time has passed for him to demonstrate appropriate reformation of character. Therefore, I do not consider [the Applicant] to be a fit and proper person to hold a contractor licence at this time.

Evidence and the conduct of the proceedings

1. In addition to the oral submissions made on behalf of both parties and the material lodged by the Commissioner pursuant to s58(1) of the ADR Act marked "R1" (the s 58 Bundle) and the supplementary s 58 Bundle provided to the Tribunal on 15 August 2023 (the s 58 Supplementary Bundle) marked "R4", the Commissioner relies upon: 1. Written submissions filed 8 August 2023 marked "R2"; 2. Further written submissions filed 8 September 2023 marked "R3"
2. The Applicant relies on: 1. Administrative review application form filed on 24 May 2023 and marked "A1" 2. Written Submissions dated 6 July 2023 and filed with the Tribunal on 14 July 2023 marked "A2" which attach: 1. two character references; and 2. documents from the police including court attendance notice; facts sheet, custody management record, reason for bail decision, bail acknowledgment, property docket. 1. Photographs of his computer screen showing electronic receipts and purchase information related to the purchase of the Gel Blaster distributed on 14 August 2023 marked "A3". 2. Email distributed on 8 September 2023 indicating, inter alia, that the Applicant did not require an additional day of oral hearing but was happy to attend if the Tribunal was of a different view.
3. On 7 September 2023, and in consideration of the timetable to put on further evidence and written submissions, the Applicant wrote to the Tribunal reattaching his submissions marked "A2" indicating that he did not intend to put on any further written submissions but relied upon "the last closing letter in my previous evidence to finalise the hearing" and reattaching a copy. In response to this, the Commissioner submits: Today the 7th September 2023, the Applicant served further evidence (reattaching a copy of his letter he filed with the Tribunal on 13 July 2023) in breach of order 3 on the Respondent and Tribunal… The Respondent is of the view that such evidence should not be taken into account as its 13 days late and again shows the Applicants lack fitness [sic]...
4. The basis of this objection is difficult to understand. On the one hand the Commissioner acknowledges that the submissions distributed on 7 September 2023 were not new submissions or evidence but was a document that had previously been filed and served and accepted by the Tribunal in these proceedings without objection from the Commissioner. Those submissions having been given a marking of "A2" at the hearing. Accordingly, the Applicant's communication of 7 September 2023 did not serve submissions or evidence "13 days late" and, in fact, did not serve anything at all. The purpose of the Applicant's communication was to clarify that he was not relying upon anything further apart from what had already been received. There is no obligation on a party to give such clarification, but it was helpful of the Applicant to provide it. The Commissioner's objection is groundless. No possible prejudice arises from the Applicant's clarification. I reject the Commissioner's objection.

Conduct of the proceedings given omissions in the s 58 Bundle by the Commissioner

1. The application was set down for hearing on 11 August 2023. The parties appeared in person. In the case of the Applicant, he was self -represented. In the case of the Commissioner, he was represented by a solicitor.
2. In response to the Tribunal's inquiries of the Commissioner's representative, it became clear that the Applicant's General Concreter Application, being of obvious relevance to these proceedings, had been omitted from the s 58 Bundle.
3. In response to the Tribunal's further inquiries of the Commissioner's representative of his ability to contact his offices and provide the missing documentation, the Tribunal was informed that the Commissioner's representative could not take any such steps as he had forgot his phone.
4. In addition to the omission of the Applicant's General Concreter Application, it has subsequently become clear that the following were also omitted from the original s 58 Bundle: 1. the Refusal Notice pertaining to the Applicant's General Concreter Application which, inter alia, lists the following as information considered for the purposes of the refusal: 1. the National Coordinated Criminal History Check Certificate dated 13 February 2023; and 2. The refusal notice related to the Applicant's General Building Application 1. the National Coordinated Criminal History Check Certificate dated 13 February 2023 which was enclosed by the Applicant in support of his General Concreter Application and considered for the purposes of the Refusal Notice as noted above; 2. The refusal notice related to the Applicant's General Building Application which was also considered for the purposes of the Refusal Notice as noted above; 3. The documents relied upon by the Applicant in support of his internal review application of the decision to refuse his General Concreter Application and specifically: 1. The Applicant's letter which, as described in the internal review, included the Applicant's submissions; and 2. The National Coordinated Criminal History Check Certificate which is also referred to in the internal review and which was provided by the Applicant for a second time in support of his request for an internal review of the decision to refuse his General Concreter Application.
5. Alternatively, voluminous documentation was included in the original s 58 Bundle which appeared to serve no purpose. This included multiple emails pertaining to several extensions of time that were granted to the Applicant and a large volume of documents comprising payroll documents and pay slips of a company that the Applicant is allegedly a director of (but there is no evidence before the Tribunal of that allegation). This documentation was in support of the Applicant's General Building Application made in 2022 and not in respect of the Applicant's General Concreter Application being the subject of these proceedings.
6. Given the absence of the Applicant's General Concreter Application in the s 58 Bundle, I made directions to allow for an amended bundle to be filed and served after the oral hearing. At the oral hearing, I proposed to deal with opening oral submissions and the evidence received to date but would fix a timetable to allow for further evidence and closing written submissions. The proposal being that the hearing proceed by way of oral and the remainder on the papers unless there was an objection by either party to that course after receiving the amended s 58 bundle and any further evidence. The parties consented to that course and there has not been a subsequent objection.
7. On 15 August 2023, the s 58 Supplementary Bundle was filed by the Commissioner. The s 58 Supplementary Bundle included the Applicant's General Concreter Application (attaching a certificate of achievement from HCR Training as described above) and the Refusal Notice, however the following documents remain omitted: 1. the National Coordinated Criminal History Check Certificate dated 13 February 2023 2. the refusal notice related to the Applicant's General Building Application; and 3. the documents relied upon by the Applicant in support of his internal review application including his written submissions.
8. All the omitted documents were before the Commissioner and were considered for the purposes of the internal review. It is unsatisfactory that the s 58 bundle has critical, relevant omissions. Despite these omissions, I am not minded delaying these proceedings by giving the Commissioner a further opportunity to supplement the s 58 Bundle because: 1. an opportunity to do so has already been provided which has already caused delay to the resolution of these proceedings; and 2. given the importance to the Applicant of the resolution of issues related to his General Concreter Application - the refusal of which has had, according to the Applicant's evidence, an adverse impact on him financially and emotionally.

Legislation

1. Section 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) states that the ADR Act provides for the circumstances in which the New South Wales Civil and Administrative Tribunal has administrative review jurisdiction over a decision of an administrator. Pursuant to s 9(1) of the ADR Act, this Tribunal has administrative review jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to it for administrative review under the ADR Act.
2. Section 83B(1) of the Home Building Act 1989 (NSW) (HBA) allows NCAT to administratively review a decision to refuse to issue a contractor licence under the ADR Act.
3. In accordance with s 63 of the ADR Act the Tribunal is empowered to decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any law, and may exercise all relevant functions conferred or imposed on the Commissioner. In determining the application, the Tribunal may affirm, vary or set aside the decision and make a decision in its place, or set aside the decision and remit the matter for reconsideration by the Commissioner in accordance with any directions or recommendations of the Tribunal.
4. Rule 24 of the NCAT Act relevantly provides the following: … (3) Unless the Tribunal grants an extension under section 41 of the Act, an application must be made- (a) in the case where enabling legislation specifies the period within which the application is to be made-within the period specified, or (b) in any other case-by the end of the default application period. (4) The default application period for the purposes of subrule (3)(b) is- (a) in the case where the applicant has duly applied for an internal review of the administratively reviewable decision under the Administrative Decisions Review Act 1997-the period of 28 days after the day on which the internal review is taken to have been finalised under section 53(9) of that Act or …
5. Section 53(9)(a) of the ADR Act relevantly provides that an internal review is taken to be finalised when the applicant is notified of the outcome of the review.
6. The Internal Review Determination is dated 18 May 2023 and was included with the administrative review application. The Applicant lodged the administrative review application with the Tribunal on 24 May 2023.
7. In that regard the application was made within 28 days from when the internal review was taken to be finalised.

Relevant Qualifications and Experience

1. Section 33C(1)(b)(i) of the HBA states that an endorsed contractor licence must not be issued unless the Secretary is satisfied that the applicant satisfies the requirements of section 33D of the HBA.
2. Section 33D(1)(b) of the HBA states that a supervisor or tradesperson certificate must not be issued unless the Secretary is satisfied that the applicant has had experience of such a kind and for such a period as the Secretary considers would enable the applicant to do, or to supervise, the work for which the certificate is required.
3. Apart from the Commissioner pointing out that the references relied upon by the Applicant did not go to the quality of the Applicant's work but to his character, no allegation was made by the Commissioner that the Applicant does not have the relevant qualifications and experience to be eligible for the issuing of the contractor licence in the category for which he is applying. In any case, the evidence satisfies me that the Applicant has the relevant qualifications given his university study at paragraph 3 above supplemented by his completion of the concreting course as described at paragraph 14 above.

Fit and proper person

1. Section 20(1)(a) of the HBA specifies that the Secretary must reject an application for a contractor licence if the Secretary is not satisfied that the applicant is a fit and proper person to hold a contractor licence.
2. Section 20(1A) of the HBA specifies that without limiting subsection (1)(a), in determining whether an applicant is a fit and proper person to hold a licence the Secretary is to consider whether the applicant is of good repute, having regard to character, honesty, and integrity.

Submissions

1. The Commissioner submits that the Applicant is not a fit and proper person to hold a licence primarily because of the firearms offences related to the Gel Blasters. In this respect, the Commissioner contends that the Applicant is not a fit and proper person because: 1. the charges related to the firearms were not "trivial" but were serious. In this respect, the Commissioner relied upon the sentence of the Applicant to a Community Corrections Order and contended that based on the sentence imposed by the sentencing court, this Tribunal should also find that the charges were serious. 2. the Applicant's disclosure of his criminal record to the Commissioner was inadequate because of the written explanation contained in Additional form 3 attached to the Applicant's Concreter Application. In this respect, the Commissioner's written submissions state: In Additional form 3, the Applicant declared "possession of firearm" and provided limited written explanation about the offence stating firearms were fake and were found while we were moving. The Applicant only informed the Respondent about two gel blasters but the facts state that five were found and the Applicant did not claim they were used at a party rather ne hold Police they were 'just for fun' 1. the Applicant failed to disclose his conviction in his earlier General Building Application 2. the Applicant's alleged "trivialisation" of the charges against him and "trivialisation" of these proceedings and in this respect the Applicant has defaulted on timetable set by this Tribunal with the excuse being that he was "busy". 3. the evidence relied upon by the Applicant is insufficient for the Tribunal to find that the Applicant has "reformed". In this respect, 1. of the two-character references, only one is aware of the Applicant's conviction and the other should be disregarded, and 2. there are no references from concreters and builders, his brother, his fiancé or parents and from that the Tribunal should infer that the Applicant is aware that he is not considered a fit and proper person in the industry. 1. the evidence of the Applicant that he used the Gel Blasters for fun and at times, used them inside his home that he shares with his brother and parents shows a lack of fitness as they could cause injury and marking.
2. The Applicant's response, in summary, is: 1. Apart from the conviction related to the Gel Blasters, he has no criminal history nor has come to the adverse attention of the police. 2. With respect to the Gel Blasters, at no time prior to 3 May 2022, was the Applicant aware that the Gel Blasters were considered a firearm and that he was acting unlawfully by acquiring and possessing them. 3. After becoming informed, he fully complied and assisted the police with there investigations. In this respect, the Applicant relies upon the Police facts sheet and other Police documentation described above that evidence this cooperation and was a reason why the Applicant was granted bail and sentenced to a Community Corrections Order. 4. With respect to the Applicant failure to disclose his conviction in his earlier General Building Application, the evidence of the Applicant is that while that application was dated 26 August 2022 (being the date it was signed by him), he had completed the details in the application "months in advance". While he had a criminal record at the time of signing, he did not at the time of filling in the forms. However, the Applicant submitted that the failure to tick the box relating to criminal history should be treated as honest mistake but acknowledged that it was an error for which he was sorry. He accepted that he should have read over the forms again prior to signing them and had learnt his lesson and will ensure that "all future paperwork is completed correctly and accurately". The Applicant's evidence was that his error was contributed to by "an enormous amount of stress" given his conviction. 5. Otherwise, the Applicant relied upon his references who speak highly of his character. With respect to the reference from Mr Barba, it described the Applicant working with Mr Barba and specifically, that Mr Barba was able to know of his character whilst subcontracting to Mr Barba's company. In respect of his quality of work, Mr Barba: [The Applicant's] communication skills were excellent, and he was able to resolve difficult problems that often arose whilst on site. He showed exceptional attention to detail and worked efficiently and effectively.

Consideration

1. The expression 'fit and proper' was considered in Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 and at [156] - [157] the High Court said: The expression 'fit and proper' 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 ... 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.
2. 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.
3. 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.
4. For the reasons that follow, I am satisfied that the Applicant is a fit and proper person to hold a concreter licence.
5. With respect to the Commissioner's submissions urging this Tribunal to find that the contravention of the Applicant was serious either because of the sentence ordered by the sentencing judge or otherwise - I reject this submission.
6. First, the decision of the sentencing judge was based upon the evidence before that sentencing judge. To the extent that the Commissioner urges this Tribunal to make a factual finding as to the seriousness of a contravention or otherwise, it ought to refer to and rely upon evidence in these proceedings that establishes that fact and not rely upon inference derived from the sentence as to what the sentencing judge may or may not have thought based upon whatever evidence was before that judge (which is unknown). Even if it was known, those findings would not bind this Tribunal in any case.
7. Secondly, where possession of gel blasters has been considered judicially in New South Wales, questions have been raised as to the objective gravity of the offending conduct in possessing what has been described judicially as an "imitation" firearm where there is no evidence that it has been used to commission a crime. In the recent District Court decision of R v Smith [2023] NSWDC 88 per P Conlon SC ADCJ at [9] to [22]: … The primary issue at trial was whether "gel blasters" fall within the definition of an "air gun" in S 4(1) of the Firearms Act. Following the affirmative finding, guilty verdicts were recorded. Expert evidence indicated that gel blasters propel small hydrated gel pellets as a result of a mechanism involving compressed air. In the context of these sentence proceedings, it is appropriate to make the observation that in the State of Queensland, these gel blasters are regarded as children's toys and they can be legally possessed. During the course of the search, the offender acknowledged that he had purchased each of the gel blasters in question and he and his children would use them to play. At the time he was asked if he knew it was illegal to possess gel blasters in New South Wales and he replied, "No". In every sentencing task, the Court is to have regard to the maximum penalty that applies (in respect of offences under S 51D(2) as earlier mentioned, 20 years imprisonment with a standard non-parole period of 10 years) and then to make an assessment of the objective gravity of the offending conduct. Of course, Courts do have a wide sentencing discretion. However, in the present circumstances, it does seem ludicrous that the possession of a gel blaster, in these particular circumstances, is triable on Indictment in the District Court. In 2018 Parliament dealt with the issue of "paintball guns". It introduced the Paintball Act 2018 which in effect, excluded a paintball gun from the definition of a "firearm" in S 4(1) of the Firearms Act. That of course was sensible legislation and paintball businesses now operate legally as a leisure time activity. The mechanism of a paintball gun is very similar to the mechanism of a gel blaster. Both propel projectiles via compressed air or gas. At trial, the defence tendered a report of Dr Milund Siddpura (Exhibit 3). He holds the following degrees: Bachelor of Mechanical Engineering from Sardar Patel University, India; Master of Mechanical Engineering (Machine Design) from Sardar Patel University; PhD in Mechanical Engineering from the University of Western Australia. He is presently an Engineering Academic at Engineering Institute of Technology, Australia. His report was tendered without objection. Dr Siddpura carried out a comparison of a nerf gun, a gel blaster, a paintball gun and an air gun. That also involved a comparison of the magnitude of the impact force of each item. At paragraph 8 of his report, he noted that the impact force of the nerf gun is only "one" lower than the gel blaster; the paintball gun's impact force is 14 times higher than the gel blaster and an air gun was 665 times higher. Every parent would understand the harmless nature of a nerf gun. Dr. Siddpura acknowledged a recent research study on the possible type and level of injury caused by the use of gel blasters as including an eye injury. Accordingly, goggles were recommended with their use. Dr. Siddpura also noted that identical protection is recommended for nerf gun users. Whilst deciding that gel blasters did fall within the S 4(1) definition of the Firearms Act, I was also clearly of the view that the gel blasters in the possession of the offender were only ever intended for use as toys. Accordingly, in respect of the S 51D(2) charges, I have assessed the offender's criminal culpability as falling at the absolute bottom of the range for offences of their type. In my view there is urgent need for Parliament to review the situation in respect of gel blasters and if it is considered they should remain illegal in NSW, they should be placed into a category of their own with appropriate penalties (including fines). In the course of the trial judgment, I made the comment that rather sadly, appropriate prosecutorial discretion is something that would appear to be seldom exercised these days. In particular, that comment was aimed at the inclusion of multiple counts on the Indictment under S 51D(2) and at the inclusion of Count 33 alleging possession of an imitation "firearm". That last mentioned item was a gel blaster without the internal working mechanisms to be able to use it as such. That item was also part of Count 29 (s 51D(2) - Possess more than three unregistered firearms). This imitation firearm was said to be the "4th" unregistered firearm that enabled the prosecution to charge a further aggravated form of the offence. In the trial judgment I also indicated my concern in respect of the present state of the law regarding an item that can fall within the definition of an "imitation" firearm. Clearly such items are capable of being used in the commission of criminal activity and should be subject to a charge under the Firearms legislation. However, if one was to look at a scenario where an "imitation" firearm was found in a child's bedroom in the course of a search, it is difficult to imagine that Parliament had ever intended such an item be subject to a charge under the Firearms Act, absent any evidence in respect of illegal use. In my view the use of an "imitation" firearm whether the use be actual or intended, should be a critical factor in deciding whether a charge should flow.
8. Lastly, even if I was minded to adopt a finding of the seriousness of the contravention based upon sentence, the sentencing judge who sentenced the Applicant appears to have considered the criminal culpability as falling at the bottom of the range consistent with the decision of R v Smith [2023] NSWDC 88. In this respect the Applicant was sentenced to a nine-month Community Corrections Order which is a form of good behaviour bond which allowed him to serve within the community. When this is compared to the maximum sentence for a contravention of s 7 of the Firearms Act (being 14 years imprisonment) or a contravention of s 7A (being 5 years imprisonment), the sentence imposed was far from the most severe.
9. Rather, the evidence supports that the Applicant purchased the firearms in Queensland (where they are legal to possess and considered "toys") and did not understand that he was committing a criminal offence by possessing them. There is no evidence that he acquired them with the intention of committing a crime or for a reason inconsistent with the public interest. His evidence, which I accept, was that their purpose was to be used as part of a costume for a dress-up party and otherwise, they were used to "fool around" with his brother at home. I find no inconsistency in his evidence that he described the latter to the police rather than the specifics of the dress-up party. Using the Gel Blasters for a costume is equally to use them to "fool around".
10. When he was informed and charged with an offence, he cooperated with the police and provided full and frank disclosure. This being in the context of the Applicant not having any criminal history apart from this charge nor ever coming to the adverse attention of the police. I reject that these circumstances give rise to a finding that the Applicant is not fit and proper.
11. In addition to the conviction and sentence, the Commissioner contends that this Tribunal find that the Applicant is not fit and proper because of inadequate disclosure of his criminal history in Additional form 3 attached to the Applicant's Concreter Application. I reject this contention. The Applicant's disclosure is summarised at paragraphs 21, 22 and 23 above which is adequate. This is particularly evident when consideration is given to the fact that the Applicant attached to his application the Coordinated Criminal History Check Certificate dated 13 February 2023. In such circumstances, there is no basis to suggest that the Applicant was providing inadequate disclosure or attempting to hide his conviction. While the Commissioner has omitted that document from the s 58 Bundle, it is self-evident that it would have informed the Commissioner of the Applicant's very limited criminal history.
12. As for the Commissioner's submission that the Applicant communicated in his application that the charges related to only two firearms and not five - this too finds no support in the evidence. The firearms are referred to as "firearms" in the plural but otherwise there is no description of the number in the Additional form 3 attached to the Applicant's Concreter Application. There is no factual basis to allege that the Applicant misstated the number of Gel Blasters.
13. With respect to the Commissioner's contention that the Applicant failed to disclose his conviction in his earlier General Building Application, I accept as a matter of fact that that is correct. I also accept the Applicant's evidence of the circumstances giving rise to this error. However, even accepting the Applicant's evidence I find that it was unsatisfactory that the Applicant approached the filling in of that application with insufficient attention and regard. Significantly, however, it is self-evident that whatever attitude the Applicant had to the importance of disclosure in 2022, that attitude has changed and it his current character and disposition which is relevant to this inquiry. In this respect, by at least 15 February 2023 (being the date that the General Concreter Application was completed) the Applicant understood the necessity of accurately disclosing his offence because he did just that along with providing a Coordinated Criminal History Check Certificate with that application. That is consistent with the Applicant's evidence that he now understands and will ensure that future paperwork is completed "correctly and accurately". I reject the Commissioner's submission that there is a "continuum of conduct" of non-disclosure as a basis to find that the Applicant is not fit and proper as I am satisfied that the Applicant now understands the importance of careful consideration in disclosing information.
14. I also reject that the Applicant "trivialised" the charges against him by describing the firearms as "fake" or "imitation". Such references were a means to communicate the distinction between these firearms which in another State are considered a toy and firearms that shoot bullets. The Applicant cannot be criticised for making such a submission in circumstances where I have accepted it and in circumstances where such a description has been used by a justice of the District Court: R v Smith [2023] NSWDC 88 per P Conlon SC ADCJ. Nor do I find any defaults on any court timetables by the Applicant or the fact that he enjoyed "fooling around" with the Gel Blasters with his brother would rise high enough for me to find that the Applicant is not fit and proper to hold a concreter's licence.
15. I also reject the Commissioner's submissions related to insufficiency of evidence of "reformation" in the context of the charges. Apart from misunderstanding the treatment of Gel Blasters as between Queensland and New South Wales (which the Applicant clearly now understands), I do not accept there is anything further that the Applicant requires to be reformed from. I do not accept as a matter fact that the Applicant has not provided evidence of his work experience, ethic, or quality - he has with the reference of Mr Barba, evidence of his university study and exam results and evidence of his concreting course. Nor do I accept the Commissioner's controversial proposition that the absence of references from family members of the Applicant mean that I should infer that the Applicant is aware that he is not considered fit and proper. To the extent this is a submission based upon Jones v Dunkel [1959] HCA 8; 101 CLR 298 (and it is not clear that it is because it is not cited), it is a misapplication.
16. Rather, and for the reasons given by the Applicant in his submissions as described above which is supported by the evidence, I find that the correct and preferable decision is to set aside the decision to refuse the Applicant's general contractor licence.

Orders

1. The Tribunal makes the following orders: 1. The decision under review is set aside. 2. In substitution for that decision, the Tribunal grants the applicant a contractor licence in the categories of general concreter under the Home Building Act 1989 (NSW) 3. The Commissioner is to grant the individual endorsed contractor licence to the applicant within 3 weeks of this decision.

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: 22 September 2023