Cooper v Commissioner of Police

NCAT Administrative and Equal Opportunity|2022-05-25

The Applicant's criminal history

The Respondent relied, to some extent, on the Applicant's criminal history: 1. In 2003 he was convicted of steal motor vehicle and was sentenced to 50 hours community service. 2. Also in 2003, he was given a good behaviour bond under s 9 of the Crimes (Sentencing and Procedure) Act 1999 for goods in custody. 3. In 2005 he was apprehended driving without a "P" plate and was issued with a traffic infringement. 4. In 2006 he was apprehended for driving an unlicensed, uninsured vehicle without a licence and was issued with a traffic infringement. 5. In 2008 he was fined for possession of cannabis. 6. Also in 2008, he was fined and sentenced to 6 months periodic detention for steal vessel (accessory after the fact). 7. In 2013 there was a mid-range PCA charge for which he was fined and disqualified from driving for 6 months.
I accept that the only time the Applicant has come to the adverse attention of Police in the last 10 years has been in relation to the mid-range PCA in 2013, and his last substantive offence was in 2008. Also, as the Applicant pointed out, when his licence was issued in 2018, he was deemed as a fit and proper person to hold a firearms licence, notwithstanding his previous history. Because of the lack of recent adverse history in that his last substantive offence was now, 14 years ago, and because, and because, as recently as 2018 he was found by the Respondent to be a fit and proper person to hold a firearms licence, I attach little weight to the Applicant's criminal history.

Use firearms contrary to genuine reason

As discussed above, the Applicant has previously held a Category AB firearms licence.
Firearms may only be used in connection with the purpose established by the person as being the genuine reason for possessing or using the firearm. The Applicant has only ever held a Category AB firearms licence, which was granted for the genuine reason of Target Shooting and Recreational Hunting/Vermin Control. The Applicant asserted in his submissions that he "did not engage in contract shooting until such time as [his] licence status for Business - Contract Shooting was listed as valid on the Respondent's online registry". He said he did not advertise until he had a "valid licence". In fact, the Applicant has never held a licence for the genuine reason of vertebrate pest animal control; it was only in June 2020 that he first applied for a firearms licence for the genuine reason of Vertebrate Pest Animal Control - professional contract shooter.
In support of his internal review application, however, the Applicant indicated that he has been utilising firearms as a professional contract shooter. He wrote: 1. "On [25 October 2021] I was carrying out vertebrate contract shooting at Megalong Valley starting at approximately 6am." 2. "I actively held an A & B target shooting/vermin control licence when I applied to add categories to me licence, someone in the registry must have read the application over 12 months ago when they approved the upgrade to my A & B, to add contract shooter." 3. "I have exercised the privileges of that licence up until the revocation was given to me. In that time I carried out contracts to the highest amount of safety with no issues within this time". 4. "I derive approx. 30% of my total income from vertebrate contract shooting, and have been actively increasing the number of contracts since been (sic) approved as a contract shooter."
He provided: 1. A letter dated 25 June 2020, in which Brian Daniel wrote that "Mr Cooper has been known to me for over ten (10) years and has been operating a business in Pest Control - known as "Coopers Pest Control" [ABN provided] for this period. Part of his task in conducting his business is as a "Contract Shooter" used for the suppression of vertebrate pests/animals." 2. An authority on Coopers Pest Control letterhead dated 22 August 2019 from Anthony Brown authorising the Applicant to engage in the shooting of goats, pigs, deer, dogs, foxes and rabbits on his property. There was no reference to any payment. 3. An authority on Coopers Pest Control letterhead dated 4 June 2020 from Penelope Trevor-Jones authorising the Applicant to engage in the shooting of pigs, foxes and non-native birds ie pigeons on her property for which he was to be paid $220. An invoice/receipt was also provided. 4. An authority on Coopers Pest Control letterhead dated 27 June 2020 from Linda Grant authorising the Applicant to engage in the shooting of feral pigs and dogs on her property for a bounty of $10 per animal would be paid. 5. An authority on Coopers Pest Control letterhead dated 25 August 2020 from Clinton Baxter authorising the Applicant to engage in the shooting of dogs, foxes and rabbits on his property for which he was to be paid $330 per visit. 6. A (somewhat illegible) authority on Coopers Pest Control letterhead dated 26 August 2020 from Glen Wadham authorising the Applicant to engage in the shooting of goats, pigs, dogs and rabbits on his property. 7. An insurance policy issued on 13 January 2020 in which his business activities were listed as including "feral animal control including the use of firearms".
As can be seen from the above "contracts" the Applicant was engaging in professional shooting activities for reward from at least August 2019.
In his application for a Category ABD licence the Applicant said that a Category A or B firearm was insufficient for the eradication of feral pests. I do not accept this submission, as many farmers have only an AB licence which they use to manage the vermin on their properties. The Respondent submitted that the Applicant could only know that the management of vermin remains problematic if he in fact was having difficulty with the eradication of feral pests. I do not accept this submission, as the difficulties faced by farmers is well-known, and the Applicant is likely to have understood this to be the case even without personal experience.
In his internal review application the Applicant wrote that on about 15 October 2021 he had been contacted by an officer of the firearms registry in relation to his category D licence and understood his application would be dealt with shortly. About a week later when he checked on the Registry website the category D licence was not recorded. He thought it was a computer error. Nonetheless, he continued on with his planned shooting contract in the Megalong Valley for several days. He then had conversations with Police and understood "everything would be fine". Then, in early November 2021, when his position was still unresolved, he nonetheless again undertook a shooting contract for a few days. It is clear that, notwithstanding he did not have the appropriate licence he nonetheless engaged in contract shooting for reward.
Further, the Applicant used his social media account to post on the Facebook group "NSW Pest Manager's" a cropped photo of "Firearms Licence Details". The photograph appears to include a Category D licence under the heading "Licence Type". The Applicant has posted on his business Facebook page "Cooper's Pest Control" photos of himself undertaking "feral pest management", which included photographs of shot pests and rifles. The Respondent submitted that the Applicant has been publicly posting and advertising for contract shooting while not holding a firearm's licence which would permit such work.
In his evidence the Applicant said the posts were on a private group and the first entry was on 31 July 2020, that is, after he had applied for a contract shooters licence; his licence, however, had not been issued at that time but he was clearly representing himself, even if only to other professional shooters, that he was in fact licensed. As to photographs on a page headed "Coopers Pest Control" dated only "20 March", in which he is depicted with feral animals and firearms, he said he was shooting with 2 mates over the Easter weekend. That he appears to be kitted out in protective clothing was, he said, because it was raining. No conclusions can be drawn in relation to the photographs but I observe that it is curious that he would choose to post pictures of a private shooting weekend on a professional shooters page. His evidence in that regard is inconsistent with the clear evidence that he was, at that time, undertaking contract shooting, contrary to his issued licence.
The Applicant wrote in his statement that he did not advertise for contract shooting until his licence showed up on the Registry website. At best, this is a fine point, but the Applicant chose to undertake a professional shooting role from which he derived, on his evidence, 30% of his income, without being licensed to do so.
As the only valid firearms licence ever held by the Applicant was a Category AB firearms licence, issued for the genuine reason of Target Shooting and Recreational Hunting/Vermin Control, it is clear that he has contravened s 7A(2)(a) of the Act by using his firearm for contract shooting, a purpose not in connection with the genuine reason for which his firearms licence was granted. Further, he failed to notify the Commissioner of any change of his purported genuine reason for which he was issued with a licence: cl 16 of the Regulation.

Conclusion in relation to breaches

In Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226 Hennessey DP said that if the breaches of the Act or Regulation are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety, which is a fundamental objective of the Act. In Bevan v Commissioner of Police [2004] NSWADT 1, the Tribunal stated at [26]: ... Parliament has given a clear indication that the Commissioner is to revoke or refuse a licence, unless the Commissioner is satisfied that the contravention was merely a technical breach, the conduct posed no risk to public safety and there was no evidence that the licence holder or applicant for a licence would in future engage in conduct that posed a risk to public safety (see s3(1)(a) of the Act). (Tribunal's emphasis)
The Applicant's contraventions are not merely "technical". Firstly, the Act sets out a clear obligation that questions are to be answered truthfully and the Applicant has failed to comply with that obligation. His failure to comply in relation to the false statements - on 3 separate occasions - cannot be disregarded as an oversight.
Moreover, the use of his licence for a purpose other than his approved genuine reason cannot be discounted as a technicality.

Is the Applicant a fit and proper person to hold a firearms licence?

Section 11(3) of the Act requires that the Tribunal be satisfied that the Applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace.
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. See also Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28 (1955), Re Percival and Australian Securities Commission [1993] AATA 196, Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALP 794 at [41].
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." In the context of firearms licensing, in Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 at [22], 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. The test is directed towards maintaining and encouraging appropriate standards in the use of firearms.
The Applicant submitted that he is a fit and proper person and provided evidence of his commercial pilot's licence (2021) and CASA security clearance. I accept his evidence that to gain security clearance a vetting process is required which is likely to have included criminal record checks. It was submitted he would not have received such clearance if that Authority found him not a fit and proper person.
While that may be the case, the test to be applied, as discussed above, focuses on the context, so while the Applicant may be a fit and proper person for the purposes of one regime, it does not necessarily follow that he is a fit and proper person for the purposes of the Act.
I was referred to Kammoun v Commissioner of Police, NSW Police Force [2021] NSWCATAD 273 where SM Montgomery, in referring to DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at paragraph [57] said at [100]: The level of co-operation and frankness demonstrated by a licensee in dealings with the regulator is indicative of the licensee's character.
The Applicant appears to have adopted a cavalier approach to the licensing regime - I have found he either deliberately or negligently completed his licence applications on 3 occasions. I have found he used his firearms contrary to his licence in that he engaged in activities as a professional shooter when he was not authorised to do so. He failed to notify the regulator until he had been undertaking that role for at least 18 months. I am therefore not satisfied that the Applicant is, in the terms used in Sobey, a person possessed of sufficient integrity and character to be safely accredited to the public as a person who should be entrusted with the privilege of firearm possession: s 11(3)(a) of the Act.

Public interest

The Respondent also contended that it is not in "the public interest" for the Applicant to hold a firearms licence: s 11(7) of the Act. The term is not expressly defined in the Act. It is well-settled though that "the public interest" is considered relative to the objects of the Act and the firearms licensing system, with public safety being give paramount consideration: see, for example, Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].
The Tribunal exercises the discretion in s 11(7) of the Act in accordance with the Act's objects and underlying principles as set out in s 3 of the Act. The Tribunal's decision is to reflect the risk that an applicant will misuse a firearm in a way that impacts the public interest. The Tribunal has repeatedly said that an applicant is not required to discharge an almost impossible burden of proving a near absolute negative, but, rather, the Tribunal must take into account all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [64]-[66]. Further, when assessing the public interest, only real and appreciable risk needs to be taken into account; minimal, fanciful or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32]. It is clear though that the overriding concern of the public interest in this context is the maintenance of public safety. Any real and appreciable risk to public safety cannot be outweighed by the Applicant's interest in holding a firearms licence.
Having found that the Applicant is not a fit and proper person to hold a firearms licence, it is difficult to envisage circumstances where, nonetheless, it can be in the public interest for an applicant to hold such a licence. The Applicant said that he wishes to retain his firearms licence (and add a Category D professional shooters licence) to continue his part time work as a professional shooter to ensure that he makes enough income to support his family.
Private interests, however, are not the only matters taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. In this case, the Applicant is otherwise employed, and it is not that his family's overall livelihood is at risk.
The Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. In that regard, past conduct of the Applicant is a significant guide in assessing likely future conduct: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141]. The Applicant, by his false statements, his use of his firearms contrary to his licence and his failure to inform the Police of his change of role for many months demonstrated a lack of candour in dealings with Police.

Conclusion

For the reasons discussed above, I am not satisfied that the Applicant is a fit and proper person to hold a firearms licence. Further, for the reasons discussed above, I am also not satisfied that it is the public interest for the Applicant to hold a firearms licence at this time.

Decision

The decision under review in relation to: 1. the revocation of the Applicant's AB licence is affirmed. 2. the Applicant's application for a category ABD licence is affirmed. 3. the Permit to Acquire a B2 Centrefire rifle is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 June 2022

Tribunal's approach

Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that a 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. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34].
To be eligible for a PTA, an applicant must hold a current NSW firearms licence or permit and the applicant may only apply for the type of firearm that the category of licence they hold authorises them to possess. Hence, I have addressed below the Applicant's application in respect of his firearms licence. If I find against him in relation to his licence, his application for a PTA must also fail.

At a glance

Court

Decision date

Source

Judgment (9 paragraphs)

Parties

Cases Cited (21)

Cited By (6)