Commissioner of Police v EMB

History

1. EMB held a firearms licence continuously from 1993 until, on 30 May 2017, the category ABC licence he had held since 2013 was suspended. During the suspension of that licence, it expired. On 19 June 2019, EMB applied to the Commissioner for a category AB licence.
2. The Commissioner refused EMB's application for a category AB licence on the ground that it was not in the public interest for him to hold a firearms licence. EMB sought an internal review. When no internal review had been completed within 21 days, EMB applied to the Tribunal for a review of the Commissioner's decision to refuse the application.
3. In the hearing before the first Tribunal, the Commissioner argued both that it was not in the public interest for EMB to hold a firearms licence, and also that EMB was not a fit and proper person to hold a firearms licence.

The first Tribunal Decision

1. At [7] to [13] of the first Tribunal decision, EMB v Commissioner of Police [2020] NSWCATAD 255, the first Tribunal set out a summary of two sets of allegations of child sexual abuse made against EMB. Charges were laid against EMB in 2017 in relation to the allegations of one of the complainants concerning events said to have occurred from 2003 to 2009 ('the first set of charges'). EMB denied the allegations. In due course, a trial began, and the complainant gave evidence, but, part way through her cross-examination, the Director of Public Prosecutions withdrew the charges on account of the complainant's ill-health. There is no suggestion that the charges will be re-laid.
2. The second set of allegations of child sexual abuse concerned two other female complainants. Charges were laid against EMB in relation to these allegations, and EMB was committed for trial. However, once the first set of charges were withdrawn, the second complainant chose not to proceed, and the second set of changes did not proceed.
3. The first Tribunal observed, in its decision (at [29]), that the only evidence before it regarding the allegations of child sexual abuse was the police brief of evidence. EMB did not provide to the first Tribunal any evidence in relation to the allegations, he simply denied them. The first Tribunal found, on the balance of probabilities, that the conduct complained of occurred.
4. The first Tribunal noted that EMB had been found guilty of common assault in the ACT in 2007. No conviction was recorded and EMB was released on a good behaviour bond for 12 months. No other information was provided to the first Tribunal with respect to the assault.
5. EMB has an extensive history of traffic offences, from April 1982 to 2014, in both NSW and the ACT. The first Tribunal set out those offences at [32] of its decision.
6. The first Tribunal stated clearly that the licence under consideration was a Category AB licence (being both a Category A licence and a Category B licence as described in s 8 of the Act), and that the licence was for the purpose of 'sport/target shooting'. EMB had previously held a Category ABC licence for sport/target shooting and primary production, but the application the subject of these proceedings was confined to the purpose of 'sport/target shooting'.
7. At [38] the first Tribunal referred to the requirement of s 11(3)(a) of the Act that 'a licence must not be issued unless the Commissioner is satisfied that the application is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace'.
8. At [39] the first Tribunal set out the following extracts from Australian Broadcast Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321: 39. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Mason CJ explained, at 380, that: 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. 40. Toohey and Gaudron JJ said at 380: 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. (Tribunal's emphasis)
9. The first Tribunal discussed, at considerable length, the issue of whether EMB was a fit and proper person to hold a firearms licence within the meaning of the Act, and said, in the course of that discussion: 51 I have found that the Applicant engaged in conduct which can only be described as abhorrent. However, it did not involve firearms, nor have there been any incidents whatsoever in his capacity as a gun owner, nor in relation to firearms at all. The conduct does not lead me to a view that the Applicant is not a fit and proper person to hold a firearms licence.
10. Having regard to all of EMB's offending, the first Tribunal concluded, at [58]: 58 In summary, therefore, I do not accept that the Applicant fails the fit and proper person test.
11. The first Tribunal then turned to a consideration of the public interest test in s 11(7) of the Act, which says: 11 General restrictions on issue of licences … (7) 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.
12. The first Tribunal discussed the facts and the relevant law and the submissions of the parties in some detail and said, at [67]: I do not consider there is a current disregard for a regulatory scheme.
13. The first Tribunal referred to 'concern about the Applicant's genuine reason for seeking a firearms licence' and said, at [68] There was no evidence whatever that he intends to use a firearm for any other purpose.
14. The first Tribunal said, at [69]: I am reasonably satisfied, based on public interest grounds, that there is no reason for the Applicant not to hold the firearms licence for which he has applied.

The Appeal decision

1. The Appeal Panel, in its decision Commissioner of Police v EMB [2021] NSWCATAP 63 at [12] to [27], set out a summary of the first Tribunal decision.
2. The Appeal Panel then considered whether the first Tribunal erred on a question of law. The Appeal Panel said that the Commissioner had submitted that the first Tribunal erred in law by misconstruing the statutory 'fit and proper person' test to be applied under s 11(3)(a) and also the 'public interest' test to be applicant under s 11(7), and thereby misdirected itself.

Fit and proper test

1. The Appeal Panel set out the Commissioner's argument and EMB's argument in relation to the 'fit and proper' test, and said, at [45]-[57]: 45. In McDonald v Director-General of Social Security (1984) 1 FCR 354 the Federal Court emphasised the primacy of the statute in identifying whether it is the existence or non-existence of any particular circumstance that is determinative. In the case of the Firearms Act, s 11(3)(a) requires the decision-maker, whether the Commissioner or the Tribunal on review, to form a positive state of satisfaction that an 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". Absent such a state of satisfaction, a licence cannot be issued. 46. The Tribunal stated at [38] the requirements of s 11(3)(a), however the reasons indicate that that was not the test it applied, rather the conclusions expressed at [51] and [58] are framed in terms that the Tribunal was not persuaded that the applicant is not a fit and proper person. This involves an inversion of the statutory test, which required that the Tribunal address the question whether the applicant was a fit and proper person, rather than whether it should conclude that he was not. The fact that the ultimate order of the Tribunal was that the applicant should be issued a licence does not overcome that error. That error was an error in the application of the statutory test, and thus an error of law. 47. That conclusion is sufficient basis on which to allow the appeal. However, the other grounds of challenge are relevant to the question of the course that should be adopted on the appeal and are considered below. 48. The Appeal Panel agrees with the Commissioner that the Tribunal's application of the principle stated by the High Court in Bond was too narrowly based. The term "fit and proper" itself carries no precise meaning, and takes its meaning from its context, the activities in which the person is or will be engaged, and the ends to be served by those activities. That the consideration is not limited to the specific functions or activities enabled by the holding of a licence appears in the High Court's reference to character and reputation. That is reflected in the decision of Walters J in Sobey v Commercial Agents Board [1979] 22 SASR 70 at 76: The issue whether an appellant has shown himself to be "a fit and proper person", within the meaning of s. 16(1) of the Act, is not capable of being stated with any degree of precision. But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an 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 the particular licence under the Act, 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, without further inquiry, as a person to be entrusted with the sort of work which the licence entails. 49. The relevance of an applicant's honesty and personal integrity to a consideration of whether they are fit and proper, as discussed in Sobey, is regularly reflected in decisions of the Tribunal such as Axiotis v Commissioner of Police, NSW Police [2004] NSWADT 112 at [26]. 50. It was put to the Tribunal below in oral argument (transcript p 10) that even if the Tribunal is not making a finding that a person has committed a criminal offence, and instead is making a finding as to whether or not a person's behaviour was criminal conduct, in the context of the Firearms Act that is relevant both to the fit and proper person test, as conduct that one would not expect of a licence holder; and to the public interest test, as it is not conduct consistent with protecting public safety or because it demonstrates a disregard for public safety. It was further put (transcript p 17) that criminal conduct regardless of the context or type is relevant if that conduct demonstrates the applicant's attitude towards and social expectations with respect to public safety. 51. Those propositions are consistent with the underlying principles of the Firearms legislation as provided in s 3 of the Firearms Act, para (a) of which states that firearm possession and use are "a privilege that is conditional on the overriding need to ensure public safety". As acknowledged by the Court of Appeal in Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 368 at [1], the power to grant an application under the Firearms Act is tightly constrained, and in particular, significant emphasis is placed upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. 52. While not developed at the level of detail at which it was argued on the appeal, the proposition that the considerations relevant to whether a person found to have engaged in conduct that would constitute a criminal offence is fit and proper are not limited to offences against the firearms legislation, or offences involving the use of a firearm, was put to the Tribunal. The offences prescribed under reg 5(1)(e) of the Firearms Regulation 2017 as offences which disqualify a licence applicant include offences under Div 10 of Part 3 of the Crimes Act 1900, including in Subdiv 5 offences involving sexual assault of children. 53. The Appeal Panel agrees with the Commissioner that in focussing on conduct associated with possession or use of a firearm, and discounting the child sexual assault conduct found to be true because it did not have such an association, the Tribunal adopted an unduly narrow approach to the construction of the term "fit and proper" in its statutory context. That conduct was potentially relevant for the same reasons as was the applicant's traffic history, as evidence going to the applicant's attitude towards, and social expectations with regard to, public safety. 54. That contention was expressed in the Notice of Appeal in terms that the Tribunal failed to give "real and genuine consideration" to the principles relevant to assessment of EMB's fitness and propriety. In the hearing of the appeal, it was put in terms that the Tribunal had erred in reading down the moral integrity requirement for the fitness and propriety standard, and had failed to consider EMB's lack of candour about significant personal misconduct as a matter relevant to his fitness and propriety. 55. There is authority for the proposition that the obligation to "take into account" a relevant consideration requires the decision-maker to give "proper, genuine and realistic consideration" to the relevant consideration(s): Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291 at 292; Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 at 601 [62]; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 367 [138]; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 (2005) 147 FCR 51 at 92-93 [212]. However, in Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 Basten JA at [51] warned that the assessment of whether a decision-maker gave proper, genuine and realistic consideration to a mandatory matter must be approached with caution and with care to avoid an impermissible reconsideration of the merits of the decision. 56. The obligation to give "proper, genuine and realistic consideration" will not be satisfied where the decision-maker's consideration is merely a formulaic reference. The obligation requires the decision-maker to give consideration to the particular matter in a realistic and genuine sense, involving an "active intellectual process", though not necessarily to treat it as a fundamental element in the decision-making process: Azriel at [49]; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152 at [52] - [59]. 57. EMB characterised the Commissioner's challenge as going to the weight given by the Tribunal to the child sexual assault conduct, and thus based on an impermissible challenge to the merits. The Appeal Panel does not agree. In contrast to the careful consideration of the weight to be given to EMB's traffic history, and to the absence of any awareness in the character references of the circumstances giving rise to the refusal of the firearms licence, the Tribunal's conclusion at [51] does not reflect an appropriate engagement with the significance of the child sexual assault conduct in the context of the statutory regime.

Public interest test

1. At [60]-[61], the Appeal Panel deal with the ground of appeal concerning the public interest test, saying: 60. There is no issue with how the Tribunal explained the concept of the "public interest" at [59]-[61] of its reasons, namely that that expression is to be considered in context, informed by the underlying principles and objectives of the Firearms Act, and having regard to the interests of the whole community. However, while the Tribunal gave detailed consideration at [67] to the relevance of EMB's traffic history to the question of whether it is contrary to the public interest for EMB to hold a firearms licence, and at [68] to the Commissioner's concerns about his genuine reason for seeking a firearms licence, the only reference to the child sexual assault charges was the statement at [65] that those offences did not involve a firearm. While s 11(7) confers a discretion, and while it is, subject to considerations of unreasonableness, for the decision maker to determine the weight to be given to any relevant consideration, the Appeal Panel is not satisfied that the discretion was properly exercised in the sense referred to in Azriel. 61. The Appeal Panel concludes that in adopting an unduly narrow approach to the relevance of the child sexual assault conduct to both the consideration of whether EMB has the moral and personal integrity to be found to be a fit and proper person to hold a firearms licence, and the consideration of whether the issue of a licence to him would be contrary to the public interest, the Tribunal failed to engage in the "active intellectual process" referred to in Azriel and Singh. Even if not characterised as legally unreasonable or irrational in the sense considered by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, that was a failure to give proper, genuine and realistic consideration to whether the child sexual assault conduct was relevant as evidence of EMB's disregard for the standards of the criminal law and his moral integrity, and propensity and willingness to fulfil regulatory obligations.
2. In addition to allowing the appeal on both questions of law, the Appeal Panel gave the Commissioner leave to appeal in relation to the merits of the application for a firearms licence on the following basis: Whether leave to appeal on grounds other than questions of law 62. The Appeal Panel is satisfied that the Tribunal's failure to engage appropriately with the question of the relevance of the child sexual conduct to the consideration of whether EMB was a fit and proper person to hold a firearms licence, or whether the issue of a licence to him would be contrary to the public interest, warrants leave to appeal being granted in accordance with the principles explained in Collins v Urban at [84(2)]. The Tribunal's findings as to those criteria were unreasonably arrived at and clearly mistaken, and the fact finding process was conducted in such a way that it is in the interests of justice for it to be reviewed.
3. The Appeal Panel said, at [63], that the first Tribunal's failure to make a finding of positive satisfaction that EMB is a fit and proper person meant that it failed to address the statutory precondition imposed under s 11(3)(a) of the Act for the issue of a firearms licence. The Appeal Panel further said, at [63], that that failure, together with "the failure to give adequate consideration to the relevance of the child sexual assault conduct to the fit and proper requirement and the public interest" meant that the appeal should be allowed and the decision set aside.
4. The Appeal Panel allowed the appeal, set aside the decision of the first Tribunal and made the following order: The matter is remitted to the Tribunal as originally constituted for reconsideration in accordance with these reasons, without further evidence.

The second Tribunal decision

1. The second Tribunal was constituted by Senior Member N Isenberg, as the first Tribunal had been, in accordance with the order of the Appeal Panel.
2. The second Tribunal reconsidered the matter and handed down the second Tribunal decision, the outcome of which was an order in the same terms as in the first Tribunal decision. We will discuss the reasons for the second Tribunal decision in the context of considering the grounds of the appeal before us.

The second Tribunal decision and the grounds of appeal

1. The following grounds of appeal are pleaded in the notice of appeal against the second Tribunal decision: 1. The Tribunal misconstrued the legal standard in s 11(3)(a) of the Firearms Act 1996 (NSW) ("Firearms Act"); 2. The Tribunal misconstrued the legal standard in s 11(7) of the Firearms Act; 3. The Tribunal failed to execute the Appeal Panel's order made on 16 March 2021 in Commissioner of Police v EMB [2021] NSWCATAP 63, that the matter be remitted to the Tribunal as originally constituted for reconsideration, without further evidence. The effect of the remitter order was for the matter to be determined according to law and on the same evidence, with the consequence that the findings which the Appeal Panel found to be 'clearly mistaken' ought not to have been remade by the Tribunal. 4. The Tribunal did not bring an impartial mind to the resolution of the questions that the Tribunal was required to decide.

The first ground of appeal

1. The first ground of appeal alleges that the second Tribunal misconstrued 'the legal standard' in relation to the 'fit and proper person' test in s 11(3)(a) of the Act.
2. In his submissions, the Commissioner summarised his argument in relation to the first ground of appeal as follows: 19. The species of legal error relied upon under this first ground is that identified by the High Court I the well-known catalogue of jurisdictional [errors] appearing in Craig v South Australia (1995) 184 CLR 163 at 177-178: [An] inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. 20. The errors in relation to the fit and proper test in FA s 11(3)(a) lie in the Tribunal's statements at SA [23] and [24] respectively: [23]…The Respondent submitted that the statutory regime ensures that licensees are persons of moral integrity and, having regard for the law is one means by which public safety is achieved. I do not regard "moral integrity" necessarily impacts "public safety". [24]…The Respondent submitted that disregard for the criminal law, and fundamental moral precepts regarding sexual conduct with children which are embodied in the criminal law, represents a disregard which is dangerous to the system of firearms regulation. I do not accept that the conduct, of itself, represents a disregard of the criminal law which is dangerous to the system of firearms regulation. 21. The first comment, as SD [23], is an erroneous interpretation of the public interest test. The Appeal Panel addressed and ruled on that point: APD [45]-[51]; see the summary at paragraph 14-(f) above. The Tribunal ignored or misinterpreted this ruling in the Second Decision. 22. Although the second comment, at SD [24], appears to address the evidence in the case rather than the legal standard in the abstract, the comment is preceded by a sentence in which the Tribunal rejects the Respondent's submission on the legal standard, a submission which was accepted and approved by the Appeal Panel. Thus, the assessment of the evidence, and the exercise of the discretion which flows from it, is tainted by the misconstruction error. 23. On this basis, the legal error could also be 'unpacked' as a discretion which has miscarried because it flows from a misconstruction of the statute. This is captured by the classic statement in Avon Downs (Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353, 360): If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant consideration, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.
3. EMB did not, in his submissions to us, engage with the substance of the arguments of the Commissioner with respect to the first ground of appeal.
4. The first ground of appeal refers to [45] to [51] of the Appeal Panel decision (set out above at [31]). In paragraph [46]-[47], the Appeal Panel determined that the first Tribunal had, in [38], inverted the statutory test for a fit and proper person, and that that was an error of law and a sufficient basis upon which to allow the appeal. The second Tribunal did not invert the statutory test for a fit and proper person.
5. At [48], the Appeal Panel, relevantly, in summary, said that the term 'fit and proper' has no precise meaning, and 'takes its meaning from its context, the activities in which the person is or will be engaged, and the ends to be served by those activities'.
6. At [49], having quoted, at [48], from Sobey v Commercial Agents Board [1979] 22 SASR 70 at 76, the Appeal Panel emphasised that an applicant's honesty and personal integrity is relevant to a decision as to whether that applicant should be granted a firearms licence.
7. At [50], the Appeal Panel decided, in effect, that, even in the absence of a proven criminal offence, where the Tribunal finds that a person's behaviour may constitute criminal conduct, then that is relevant to a licensing decision under the Firearms Act because it is relevant to both the fit and proper test and to the public interest test. The Appeal Panel said that such conduct was relevant to the fit and proper test 'as conduct that one would not expect of a licence holder', and it was relevant to the public interest test 'because it demonstrates a disregard for public safety'.
8. At [50]-[51], the Appeal Panel accepted the submissions of the Commissioner 'that criminal conduct regardless of the context or type is relevant if that conduct demonstrates the applicant's attitude towards and social expectations with respect to public safety'. The Appeal Panel said that those propositions were consistent with the underlying principles of the Act, noting that s 3(1)(a) of the Act says that firearm possession and use are 'a privilege that is conditional on the overriding need to ensure public safety'. The Appeal Panel said, in [51] that the power to grant a licence under the Act was "tightly constrained", that the Act placed significant emphasis on the need to control risks to public safety, which includes a need to assess the trustworthiness of an applicant.
9. The second Tribunal set out the 'fit and proper person' test accurately at [13].
10. At [16], the second Tribunal acknowledged that material relating to allegations of child sexual abuse against EMB is relevant to the exercise of the licensing discretion. The second Tribunal said, at [17], that, on the basis of the material in the Police brief of evidence, and in the absence of any contradictory evidence from EMB, the Tribunal must find that, on the balance of probabilities, the conduct complained of (i.e. by the victims) occurred.
11. The second Tribunal said, at [18]: 18. The question whether a person is fit and proper is one of value judgment: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, per Mason CJ. The expression "fit and proper person", on its own, carries no precise meaning and 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: per Toohey and Gaudron JJ at 380. Further, one question that may be considered is whether improper conduct has occurred, and whether the general community will have confidence that it will not occur again. The Respondent submitted that the Applicant's conduct, which I described as "abhorrent", demonstrates that he has a disregard for the criminal law and the standards of conduct tacitly accepted and acknowledged to be for the good order of society and for the wellbeing of its members, and that, in our system of laws, the criminal law is the most important system for the regulation of conduct. The Respondent further submitted that in order to properly reflect an appropriate engagement with the significance of the child sexual assault conduct in the context of the statutory regime, I need to consider the necessary relationship between the Applicant's disregard for the standards of the criminal law, his lack of moral integrity and his capacity, propensity and willingness to fulfil regulatory obligations. I observe that the conduct occurred in 2004 - 2007, now at least 14 years ago. There was no evidence whatsoever that the Applicant has engaged in any inappropriate sexual conduct since the events the subject of the charges. Contrary to the Respondent's submission that the Applicant has a disregard for the criminal law, there was no evidence that he has come to attention at all since 2007. It is well established that the Tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. Consequently, I do not consider that it can be said that the Applicant currently has a disregard for the criminal law. 19. The Appeal Panel considered that by focusing on conduct associated with possession or use of a firearms, and discounting the child sexual assault conduct found to be true because it did not have such an association, I adopted an unduly narrow approach to the construction of the term "fit and proper" in its statutory context. However, I did not understand the Appeal Panel to take issue with my reliance on Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 at [22], where JM Higgins stated that in determining the fitness and propriety of an applicant for a licence s 11(3)(a) of the Act requires the decision-maker to have regard to an applicant's conduct and whether that conduct is such that the decision-maker can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace. In Sobey v Commercial Agents Board (1979) 22 SASR 70 at 76, Walters J said in relation to the licensing of commercial and private agents, that the expression means that an applicant must show that he or she "is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails." The statutory regime under the Act is protective, not punitive. The test is directed towards maintaining and encouraging appropriate standards in the use of firearms. 20. As I previously observed, neither the allegations of child sexual assault nor the common assault charge involved a firearm and, most relevantly, the Applicant has a decades-long history of unblemished activity in relation to firearms. The Respondent also pointed out that the Act requires licensees to be persons who can be relied upon to observe their obligations in contexts where they are not supervised and in respect of firearms which may present danger to public safety or which may become the means for, or the focus of, criminal activity. There was no evidence whatever that the Applicant is unable to manage his firearms unsupervised or that he has criminal associates. 21. I am satisfied that the Applicant can be trusted to have possession of firearms without presenting a danger to the public safety or peace. Again, contrary to the Respondent's submissions, there is no evidence that would suggest the Applicant does not have the capacity, propensity and willingness to fulfil his regulatory obligations with respect to firearms. 22. It was submitted on the Respondent's behalf that I should have had regard to the presence of any conduct which forms the basis of a criminal offence identified in the Act. For example, s 11(5) read with cl 5 of the Firearms Regulation 2017 (Regulation), requires mandatory refusal of a firearms licence application in the event of a conviction for criminal offences for 'sexual offences against children and adults' under Part 3, Division 10 of the Crimes Act. 23. As the Respondent noted in its submissions s 3(1)(a) of the Act states that one of the Act's express 'underlying principles' is "to confirm firearms possession and use as being a privilege that is conditional on the overriding need to ensure public safety". The Respondent submitted that the statutory regime ensures that licensees are persons of moral integrity and, having regard for the law is one means by which public safety is achieved. I do not regard "moral integrity" necessarily impacts "public safety". 24. The Respondent submitted that disregard for the criminal law, and fundamental moral precepts regarding sexual conduct with children which are embodied in the criminal law, represents a disregard which is dangerous to the system of firearms regulation. I do not accept that the conduct, of itself, represents a disregard of the criminal law which is dangerous to the system of firearms regulation. 25. At [43] - [48] of the Original Decision, I discussed the references which the Applicant had supplied in support of his application. I need not repeat my observations. 26. In Roads and Maritime Services v Rifahi [2015] NSWCATAP 43 (Rifahi) at [36] the Appeal Panel considered that the Tribunal would fall into error if it adopted a rule of universal application or even a general guideline that a person serving a sentence for a criminal offence should not be considered to be fit and proper or of good repute. In the present matter, the Applicant has not been convicted of an offence, nor have charges been proved to the criminal standard. It is only on the balance of probabilities that I have found the conduct occurred, because of the absence of evidence to the contrary. Applying the approach in Rifahi, the Applicant's 'abhorrent' conduct, does not necessarily preclude a finding that he is a fit and proper person to hold a firearms licence. In Grant v Commissioner of Police [2020] NSWCATAD 158 Dr Lucy SM found the applicant in that matter to be a fit and proper person notwithstanding a criminal history of trespassing, illegal hunting, reckless driving, driving whilst suspended, speeding, fighting and cultivating cannabis. In Newman v Commissioner of Police [2018] NSWCATAD 17 NS Isenberg SM issued a licence to an applicant who had previously been a long term member of the Gladiators OMCG. These cases demonstrate that, notwithstanding objectionable conduct, an applicant may still be considered to be a fit and proper person to hold a firearms licence. 27. I consider 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. I formed this view notwithstanding the evidence of an assault charge (2007), a poor history of traffic offences (to 2005) and the conduct which gave rise to charges of child sexual assault (2004-2007).
12. The second Tribunal, in paragraph [18], acknowledged and applied the statements of the Appeal Panel in [48] and [49] of its decision. The second Tribunal characterised the child sexual abuse as 'abhorrent', which we take to encompass the idea that it was evidence of a lack of moral integrity and a lack of willingness in EMB to comply with the criminal law. The second Tribunal set out the Commissioner's arguments in relation to the lack of moral integrity and EMB's willingness to fulfil regulatory obligations.
13. In applying the fit and proper person test to the facts, including the child sexual abuse, the second Tribunal, at [18], referred to the decision of the High Court in Australian Broadcasting Tribunal V Bond [1990] HCA 33; (1990) 170 CLR 321 and alluded to [36] of the decision of Toohey and Gaudron JJ, which the Appeal Panel quoted in its decision at [22]: 36. 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.
14. The second Tribunal noted that the High Court recognised that a question to be considered is 'whether improper conduct has occurred, and whether the general community will have confidence that it will not occur again' (second Tribunal decision at [18]).
15. The second Tribunal, at [18] of its decision, set out the Commissioner's argument that the Tribunal needed to consider 'the necessary relationship between the Applicant's disregard for the standards of criminal law, his lack of moral integrity and his capacity, propensity and willingness to fulfil regulatory obligations. The second Tribunal then pointed out that the child sexual abuse occurred in 2004-2007, which was, at the time of the second Tribunal's decision, at least 14 years ago. The second Tribunal noted that there was no further evidence from the Commissioner that EMB had come to the attention of the police in relation to further child sexual abuse during that 14 years. The second Tribunal then said, "I do not consider that it can be said that the Applicant currently has a disregard for the criminal law".
16. The second Tribunal, in its decision, discussed the decision in Sobey and pointed out that the fit and proper test under the Act 'is directed towards maintaining and encouraging appropriate standards in the use of firearms'. It is not punitive.
17. EMB held a firearms licence under the Act from 1993 to 2017 without any evidence being generated that he does not have the capacity, propensity and willingness to fulfil his regulatory obligations with respect to firearms. All of the offending alleged against him occurred whilst he held a firearms licence (see the second Tribunal decision, at [20]).
18. The first ground of appeal asserts that, in [23], (set out at [40] above), the second Tribunal erred in saying, "I do not regard 'moral integrity' necessarily impacts 'public safety'". However, this statement is self-evidently true on its face, in the abstract. Many examples of breaches of moral integrity can be pointed to which have no impact upon public safety. The second Tribunal's point, though, in the context of its decision, is that a person may commit a grievous breach of moral integrity, as EMB did by committing child sexual abuse, and yet, at a later time, be assessed as being a fit and proper person who can be trusted to have possession of firearms without danger to public safety or to the peace. The second Tribunal said, at [27], that it had formed this view "notwithstanding the evidence of an assault charge (2007), a poor history of traffic offences (to 2005) and the conduct which gave rise to charges of child sexual assault (2004-2007)' (see the second Tribunal decision at [27]). The second Tribunal also referred, as it had in the first Tribunal decision (see [43]-[48]), to the 17 letters from character witnesses which were provided to in EMB's case, which the second Tribunal (and the first Tribunal) took into account.
19. Neither [23] nor [24] of the second Tribunal's decision contains an error of law. The first ground of appeal has not been made out.

The second ground of appeal

1. The second ground of appeal asserts that the second Tribunal misconstrued the legal standard in s 11(7) of the Act, which is the 'public interest' test. The Act says, in s 11(7): 11(7) 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.
2. In his submissions, the Commissioner said that the legal error 'flows' from [32] to [35] of the second Tribunal decision, which say as follows: 32. Consistent with the reasons of the Appeal Panel, my consideration of the Applicant's conduct is not confined to whether it occurred in association with a firearm. On the one hand there is the Applicant's abhorrent conduct, but I note my findings at [17] above as to why the conduct was found to have occurred. Further, at [18] above I observed that the conduct occurred in 2004 - 2007, now at least 14 years ago. On the other hand, in the Original Decision I found a number of factors, in relation to public safety that weighed in favour of the Applicant. At [65] I observed that none of the alleged offences involved firearms. At [66] despite holding a firearms licence for many years, there was no evidence that the Applicant had ever created any danger. At [67], I considered that although the Applicant had a poor traffic history up until 2005 this does not indicate an ongoing disregard for the law including regulatory schemes. Finally, I found, at [68] that there was no evidence that the Respondent intends to use a firearm for any purpose other than the genuine purpose stated in his application. 33. The Applicant's submission added that there were other matters which I should take into account in the Applicant's favour: 1. the Applicant's father served in the Royal Australian Army and taught his son responsible gun ownership. 2. the Applicant himself served in the Royal Australian Army. 3. the Applicant had held a licence for decades without incident. 4. the Applicant had never been charged, much less convicted of a firearms offence. 5. in addition to his own recreational shooting, the Applicant coaches a disabled shooter who competes at international competitions. 34. In relation to items (1) and (2) above, I agree these matters were referred to in the reference provided by the Applicant's mother. They do not, however, add to the Applicant's case in my view, as I had addressed at [60] of the Original Decision that the Applicant had safely used firearms since the age of 13. That he and his father both served in the ADF takes the matter no further. 35. Similarly, in relation to (3) and (4) above, at [60] I noted that the Applicant had held a licence for many years without incident, and consequently he had not been charged with any firearms offence.
3. The Commissioner said, in his submissions, that the error of law complained of was the same as the error addressed by the Appeal Panel at [58]-[61], and said, further, that the second Tribunal "ignored the Appeal Panel's ruling in its second decision on the remitter".
4. The Appeal Panel, in [58] and [59], discussed the content of the 'public interest test'. At [60]-[61], the Appeal Panel said: 60. There is no issue with how the Tribunal explained the concept of the "public interest" at [59]-[61] of its reasons, namely that that expression is to be considered in context, informed by the underlying principles and objectives of the Firearms Act, and having regard to the interests of the whole community. However, while the Tribunal gave detailed consideration at [67] to the relevance of EMB's traffic history to the question of whether it is contrary to the public interest for EMB to hold a firearms licence, and at [68] to the Commissioner's concerns about his genuine reason for seeking a firearms licence, the only reference to the child sexual assault charges was the statement at [65] that those offences did not involve a firearm. While s 11(7) confers a discretion, and while it is, subject to considerations of unreasonableness, for the decision maker to determine the weight to be given to any relevant consideration, the Appeal Panel is not satisfied that the discretion was properly exercised in the sense referred to in Azriel. 61. The Appeal Panel concludes that in adopting an unduly narrow approach to the relevance of the child sexual assault conduct to both the consideration of whether EMB has the moral and personal integrity to be found to be a fit and proper person to hold a firearms licence, and the consideration of whether the issue of a licence to him would be contrary to the public interest, the Tribunal failed to engage in the "active intellectual process" referred to in Azriel and Singh. Even if not characterised as legally unreasonable or irrational in the sense considered by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, that was a failure to give proper, genuine and realistic consideration to whether the child sexual assault conduct was relevant as evidence of EMB's disregard for the standards of the criminal law and his moral integrity, and propensity and willingness to fulfil regulatory obligations.
5. It could not fairly or accurately be said that the consideration given to the child sexual abuse in the second Tribunal decision was confined to a 'statement that those offences did not involve a firearm'. Neither could it fairly be said that, in the second Tribunal decision, the second Tribunal adopted "an unduly narrow approach to the relevance of the child sexual assault conduct to both the consideration of whether EMB has the moral and personal integrity to be found to be a fit and proper person to hold a firearms licence, and the consideration of whether the issue of a licence to him would be contrary to the public interest". The second Tribunal engaged in an 'active intellectual process' in assessing the potential for the grant of a firearms licence to EMB to bring about an adverse impact on public safety. A balancing exercise of the factors weighing in favour of the grant of a licence and the factors weighing against the grant of a licence was undertaken, and the second Tribunal, in 2021, could find no good reason, at the end of that exercise, to be concerned about the potential for an adverse impact on the public interest.
6. In his written submissions, the Commissioner said: 27 Even if the 'misconstruction' error were not easily discernible in the reasons for the decision, it needs to be recalled that the Appeal Panel had already determined that the Tribunal's outcome on the public interest standard in the First Decision was 'unreasonably arrived at' and 'mistaken': APD [62]. The error is repeated in the Tribunal's Second Decision. The Avon Downs ground of review also applies.
7. The Appeal Panel, in [62], said: Whether leave to appeal on grounds other than questions of law 62. The Appeal Panel is satisfied that the Tribunal's failure to engage appropriately with the question of the relevance of the child sexual conduct to the consideration of whether EMB was a fit and proper person to hold a firearms licence, or whether the issue of a licence to him would be contrary to the public interest, warrants leave to appeal being granted in accordance with the principles explained in Collins v Urban at [84(2)]. The Tribunal's findings as to those criteria were unreasonably arrived at and clearly mistaken, and the fact finding process was conducted in such a way that it is in the interests of justice for it to be reviewed.
8. The second Tribunal did not fail to engage appropriately with the question of the relevance of the child sexual conduct to the 'fit and proper person test' in s 11(3)(a) of the Act and the 'public interest test' in s 11(7) of the Act. The second Tribunal's findings were not unreasonably arrived at. The Appeal Panel's remarks in [62] cannot fairly be applied to the second Tribunal decision.

The third ground of appeal

1. The third ground of appeal is: 3. The Tribunal failed to execute the Appeal Panel's order made on 16 March 2021 in Commissioner of Police v EMB [2021] NSWCATAP 63, that the matter be remitted to the Tribunal as originally constituted for reconsideration, without further evidence. The effect of the remitter order was for the matter to be determined according to law and on the same evidence, with the consequence that the findings which the Appeal Panel found to be 'clearly mistaken' ought not to have been remade by the Tribunal.
2. The Commissioner, in his written submissions, asserted that the second Tribunal did not reconsider the matter in accordance with the Appeal Panel's reasons. We reject that contention. The second Tribunal decision discussed the Appeal Panel's reasons and did not depart from them. The second Tribunal considered the child sexual abuse in more detail and also emphasised relevant factors which were not the subject of detailed consideration by the Appeal Panel, namely the lapse of time between the conduct of concern and the decision of the second Tribunal, and the content of the 17 letters from character witnesses tendered in EMB's case.
3. The Appeal Panel said, at [64]: 64. The Commissioner submitted that if the decision under appeal is set aside, the Appeal Panel should determine the matter itself, rather than remit to a single member. EMB's position was that the matter could be remitted. The Appeal Panel agrees with the Commissioner that the evidentiary findings are not contested, and to that extent a reconsideration of whether EMB is a fit and proper person as required by s 11(3)(a), and whether the issue of a licence would be contrary to the public interest under s 11(7), can be viewed as a relatively confined task. However, the Appeal Panel is of the view that that for the Appeal Panel to determine the matter itself would require the Appeal Panel to engage afresh with the detailed evidence, which would not be consistent with the mandates of s 36 of the NCAT Act. The preferable course is that rather than dealing with the appeal itself by way of a new hearing under s 80(3) of the NCA Act, the matter should be remitted under s 81(1)(e) of the NCAT Act to the Tribunal for reconsideration, with no further evidence.
4. The Appeal Panel contemplated that, if it were to determine the matter, it would be required to 'engage afresh with the detailed evidence'. This indicates that the Appeal Panel contemplated that the outcome of the fresh determination, in the light of the Appeal Panel's reasons, was not obvious. It indicates that the Appeal Panel, having decided the appeal on the basis of the errors of law pleaded, did not conclude that an outcome in the Commissioner's favour was inevitable.
5. The second Tribunal's task was to make a fresh merits decision, standing in the shoes of the administrative decision-maker under the Act, having regard to the decision of the Appeal Panel. In undertaking that task, the second Tribunal had full jurisdiction to decide the application according to the applicable law.
6. The third ground of appeal fails.

The fourth ground of appeal

1. The fourth ground of appeal was: The Tribunal did not bring an impartial mind to the resolution of the questions that the Tribunal was required to decide.
2. This is an allegation of actual bias.
3. From the written submissions of the Commissioner, it is apparent that apprehended bias is also asserted.
4. No evidence at all was adduced as to why the Senior Member who constituted the second Tribunal (and the first Tribunal) should be considered to be biased. The Commissioner relied upon assertions as to why the Senior Member made the second Tribunal decision in the manner in which she did, but did not point to any particular event or any particular language in the decision. From the written submissions, it seems that the Commissioner relies upon the asserted errors of law pleaded in the first, second and third grounds of appeal, together with the outcome of the second Tribunal decision as an indication of bias.
5. The Commissioner cited the decision of the Court of Appeal in Belan v Office of the Director of Public Prosecutions (NSW) [2021] NSWCA 96. In that judgments, Leeming JA, with whom Meagher JA and McCallum JA agreed, said: 48. There was no dispute as to the legal test to be applied. As was said in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6], putting to one side qualifications relating to waiver and necessity, a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That reflects the requirement that justice be done, and be seen to be done. 49. Significantly for present purposes, the joint judgment explained at [8]: "The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed."
6. The Commissioner's fourth ground of appeal fails at the first step articulated in Belan. As we have said, nothing but the asserted errors of law pleaded in the first, second and third grounds of appeal, together with the outcome of the second Tribunal decision are relied upon as an indication of bias. We have rejected the first, second and third grounds of appeal. Even if we had not rejected those grounds of appeal, there is nothing about the way the Senior Member dealt with them which indicates actual or apprehended bias. Clearly, an adverse outcome in a matter cannot, by itself, constitute evidence of bias.
7. We have read the second Tribunal decision with care to ascertain whether any bias can be discerned from the text. In our opinion, no bias, whether actual or apprehended, can fairly be discerned from the second Tribunal decision.
8. No proper basis for this ground of appeal has been put forward. The submissions of the Commissioner assume that the Appeal Panel meant to indicate that a refusal of the firearms licence applied for was inevitable, and the text of the Appeal Panel decision indicates the contrary, as we have said in [69].
9. We reject the fourth ground of appeal.

Conclusion

1. The application by EMB for a stay of the proceedings is misconceived and should be dismissed.
2. None of the four grounds of appeal have succeeded. The appeal should be dismissed.

Costs

1. EMB sought an order for costs.
2. The Civil and Administrative Tribunal Act 2013, in s 60 says: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following - (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36(3), (g) any other matter that the Tribunal considers relevant. …
3. We do not consider that any of the factors set out in s 60(3) have been shown to be present in this matter. EMB made the application for an order for costs in conjunction with the application for a stay, presumably on the basis that, if he were successful in arguing that the proceedings were vexatious, an order for costs would follow. We determined, above at [10], that the proceedings are not vexatious, misconceived or lacking in substance.

Orders

1. We make the following orders: 1. EMB's application for a stay of these proceedings is dismissed. 2. The appeal is dismissed. 3. EMB's application for costs is refused.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 March 2022