Cramp v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2023-02-22

The Applicant's security business

The Applicant operates a business, Stonehaven Enterprises, trading as SPC Statewide Protective Services. On 17 February 2017, the Applicant was questioned by police and SLED officers, about her compliance with the Security Industry Act 1997 and the Security Industry Regulation 2016. The interaction led to the Applicant being issued of a caution in relation to potential contraventions of the Security Act legislation relating to that business. It is also alleged that the Applicant and her late husband were hostile to police during that interaction. These are matters which the Commissioner submits should be considered with respect to the Applicant's dealings with police and investigative officers and relevant this application.

Dishonesty in previous licence application

In June 2017, the Applicant applied for a ABCH Firearms Licence for the business The Mid Mountains Armoury and SPC Statewide Protective Services. As part of that application the Applicant was required to submit a notification of close associates of a firearms dealer disclosure. In completing that form she failed to disclose her late husband as a close associate. The Applicant's husband was formerly a 'prescribed person' for the purposes of the Act, including at the time the Applicant lodged her application for a firearms dealer's licence (see s 44A(3)(b) of the Act). The Commissioner contends that the Applicant did not intend to operate a firearms dealer business alone and that her late husband was to be directly and significantly involved in the operation of the then proposed business. In not disclosing her late husband as a close associate, the Commissioner contends that the Applicant intended to, and did, deliberately mislead the Firearms Registry. The Commissioner submits that this was similar conduct previously engaged in by the Applicant when she failed to initially disclose her late husband as a 'close associate' in the application for a firearms dealer's licence in November 2004. The Commissioner finds support in these submissions in the findings of the Tribunal in the 2020 decision at [78]-[88] and [87] where the Tribunal found 'The Applicant's failure to disclose a (then) prescribed person or a close associate in her application indicates a lack of capacity or commitment properly to consider, observe or respect firearms legislation'.

Hostile behaviour towards officers on 17 February 2017

On 17 February 2017, police and SLED officers attended the premises of the Applicant and her then late husband. The Commissioner relies upon reports of SLED officers that the Applicant: 1. was unwilling to cooperate, as she initially refused to attend the audit location, and did not do so until persuaded to do so by the Applicant's late son; and 2. acted in a hostile manner towards them and only provided short, abrupt answers when prompted.
The Commissioner contends that this conduct and behaviour is not the conduct expected of a person who the public would trust to hold a firearms licence.
Reference is also made by the Commissioner with respect to an interaction between the SLED officers and the Applicant's late husband in acting in an aggressive manner. The Commissioner raised concerns that the Applicant's late husband's comments showed there was a risk to public safety were the Applicant to hold an authority of a firearms licence given that he allegedly said words to the effect 'I have bloody well had enough of this, move out of my … I am getting out of here before I say or do something I regret'. However, since that time the Applicant's husband has died. In my view, little to no weight should be attached to this submission as the risk no longer is present.

Applicant's domestic circumstances

In written submissions, I note which were prepared before the death of the Applicant's husband, the Commissioner references concerns about the risk of her husband residing at the same premises. For the same reasons as set out above, the Applicant's late husband has died. The risk is no longer relevant.

Prior management and operation of firearms dealership

The Commissioner contends that the Applicant's failure to keep proper records as prescribed by the security industry legislation provides further concern about the Applicant's ability to comply with strict requirements under firearms legislation and raises concerns for the public interest in this application.

Applicant's statements in these proceedings

In applying for internal review of this application, the Commissioner contends the Applicant failed to acknowledge the serious findings in the 2020 decision. The Commissioner submits that the Applicant merely seeks to distinguish them by stating 'A firearms collector licence' do(es) not require the same scrutiny' as a firearms dealer's licence, 'and regardless, another 12 months has elapsed without incident''.
In the statement filed on 12 October 2022 (the Applicant's statement), the Commissioner contends that she maintains that she held various licences and permits over the course of many years 'without incident'. The Commissioner suggests that this statement is inconsistent with the evidence as set out above.
The conclusion the Commissioner seeks the Tribunal to draw is that the Applicant still does not appreciate the serious concerns raised by her background and associations, nor the reasons found in the 2020 decision concerning matters of public interest in her holding a firearms licence.
The Commissioner submits that the Applicant's submission that her private collection of firearms being worth a significant amount of money and having sentimental significance and her passion for firearms is irrelevant and has no bearing on the real issue in these proceedings, considering the public interest factors as opposed to the Applicant's private interests for her to hold a firearms licence referring to paragraph [28] in Ward.

The Applicant's case

The Applicant provided a statement dated 12 October 2022. The statement is short in nature and I relevantly set it out: '… 2 I have held various licences and permits over the years of many years without incident, including operating a firearm dealership and a security business. 3 My husband and I have held a passion for fine firearms over a lengthy period of time, which led us to join a collectors society and accumulate specialty firearms for a collection. 4 This collection is now worth many tens of thousands of dollars and has been in a paid storage facility for about 6 years. 5 Many of these firearms have sentimental significance. … 7 My husband will never have access to the firearms along with the same scenario as we previously enjoyed, from 2004 until 2016, which worked successfully.'
As indicated above, since the making of that statement the Applicant's husband has since died. In a request for internal review of the decision to refuse the application for a collectors licence the following relevant submissions were made: '… we note the prior refusal for a dealer's licence and note the reasons for the refusal related to links between the Applicant and her husband. We note the requirements for a G licence do not require the same scrutiny, and regardless, another 12 months has elapsed without incident. We note that previously Ms Cramp has held licences while her husband was a prohibited person, without incident, and that Ms Cramp has never been found to be in breach of the firearms legislation, even after a lengthy Local Court hearing. It is on this ground we now submit this review application. That Ms Cramp is a 'fit & proper' person to hold a G licence, and that the public can have virtually no fear if she is to be awarded such a licence. We note that Ms Cramp is no longer considered as being not fit and proper under the legislative regime.'
In oral submissions Mr Kable, who appeared for the Applicant, submitted that the scrutiny concerning the Applicant is far less for a collector's licence, than for a dealer's licence. He contends that the public interest considerations which led to the findings in the 2020 decision were so very closely related to the Applicant's late husband, and the influence he may have had with respect to control over her, that the decision went against the Applicant for a dealer's licence. Given that the Applicant's late husband has since died, the public interest factors and considerations need to be re-evaluated. In doing so, the Applicant's collectors licence should be granted.
Mr Kable referred to the events relating to the 2015/2016 incident concerning her late son. This interaction included the search and seizure of firearms owed by son David, was charged with firearms offences. The event then led to the Applicant's own firearms being seized in 2016 and subsequent Local Court proceedings in which the Applicant was successful in defending.
The charges against the Applicant were dismissed. The Applicant relies upon the findings in 2020 decision in that regard as follows at [60]: 'On that day police located a category D shotgun registered to the Applicant's collector licence and that had not been rendered permanently inoperable as required by s20(a) of the Firearms Act. Semi-automatic shotguns with a magazine capacity of more than 5 rounds are classified as category D, but the Applicant had under the impression that the tubular magazine held only 5 rounds, not 6, in which case it would have been category C and not requiring permanent inoperability. Mr Kable recalled that the Local Court Magistrate had accepted that the transgression resulted from a bona fide mistake of fact. As the gun was held under a collector licence, it could not be fired in any event, and had never been loaded. Although the transcript of those proceedings is not before the Tribunal, there is no reason to doubt that assertion.'
The Applicant submits that the evidence is much the same in this proceeding. Mr Kable invites this Tribunal to accept the evidence as offered before the Local Court and have comfort in doing so where the Local Court dismissed the charges against the Applicant. He submitted that no weight should be accorded to the 2016 charges given the findings of the Local Court and the explanation as set out above, which is maintained in this hearing, and as recorded in the 2020 decision at paragraph [60]. I accept this submission.
In relation to the interaction between SLED officers and the allegations of police attending the Applicant's premises, it is submitted that the COPS entries include unsubstantiated reports. The entry into the COPS system were made by a police officer and the Applicant said police officers were not present when the SLED officers attended. In these circumstances, it was submitted that little weight can be attached to the COPS event, without, corroborating evidence from the police and the SLED officers who attended. The Applicant has given her evidence about what happened on the day and that has not been challenged by calling the attending police officers or SLED officers. In that regard the weight of the COPS report should be minimal.
Further, Mr Kable submitted that the findings at [66] in the 2020 decision referred only to 'possible breaches' and that the Applicant's master security licence was not suspended or revoked. He stressed this is particularly important given that the alleged breaches can be put no higher than possible breaches. I note the concluding findings of Senior Member Walker in the 2020 decision included 'While the episode did not arise under firearms legislation, it could indicate an uncooperative attitude unconducive to proper compliance with the obligations of a firearms dealer.' Mr Kable submitted that while the evidence may reveal that the Applicant was certainly vocal during this interaction, it should not be misunderstood or construed as her being hostile. I accept this submission.
The Applicant further contends that there was no finding in the 2020 decision, nor is there evidence in this proceeding, which would lead to a conclusion that she is not a fit and proper person to hold the licence sought. Reference is made to the finding at paragraph [77] of the 2020 decision 'On balance, therefore, I do not think that the evidence overall suffices for a finding that the Applicant is not now a fit and proper person to hold the licence sought'.

The Applicant's oral evidence

The Applicant adopted her written statement made 12 October 2022. She said the only change with respect to that statement is that her husband has since died. The Applicant confirmed she is the owner of the stated security company. She has lived in her premises for 30 years which has adequate storage for firearms. The premises are alarmed and firearms are stored in an old bank vault. She said she has an interest in fine workmanship with old weapons and there are a number of sentimental items she wishes to have return to her if she is granted a collector's licence.
The Applicant was cross-examined. She said that she had been running the company with her husband. She did the paperwork and answered the telephone. Part of her role was to supply security guards with firearms who were employees or contractors and they were required to sign in and out firearms during their shift. She accepted that in 2004 there was a breach of the firearms legislation when a date from one year was changed to the next in January. A further breach occurred when a security guard failed to return the gun to the armoury following changes in the rules at the end of October in that year. The Applicant agreed that it was an oversight the security guard did not bring the firearm back to the armoury the same day. She agreed that it is imperative she complies with the firearms legislation and regulation.
The Applicant was asked around the misclassification of a collector's firearm she had and the charges disposed of in the Local Court in 2016. The Applicant said she trusted and believed that the firearm was correctly registered and had no reason to believe it was not. I have no reason to believe her in this regard.
Mr Kable conceded when cross-examined about the firearms charges in 2004 that the Applicant was involved with the security and gun business. She may have had some knowledge of the possible breaches but since that time the Firearms Registry has issued licences to her. Limited weight should be given to this evidence. I accept these submissions.
In relation to the 2017 incident involving SLED and police officers, the Applicant agreed SLED officers checked her security business employment records. The Applicant said she does not remember any police officers attending only SLED officers. She said that signage on one of the motor vehicles was being repaired by signwriters on that afternoon of the inspection and that nothing came of it. The Applicant rejected a claim that police said she could not produce documents called upon and her recollection is that she did produce documents. The Applicant said that she was unaware that she had the wrong master licence listed on her website. She denied that she had a selective memory when a different version of events was put to her as contained in the COPS notes. That is, that she had an incorrect master licence listed on her website and that she did not produce documents when requested to police. I accept her evidence and prefer it to the COPS entries, in circumstances where the makers of those entries were not called to give evidence.
In relation to the incident on 16 February 2017, when SLED officers and a licensing officer attended the Applicant's premises, the Applicant remembered that her cars were inspected and it was noted the master licence was not displayed. She was told to have that remedied. She said that the signage was being done that afternoon and did not understand there were any other alleged breaches of the security related legislation. The Applicant denied that she refused to attend the inspection and in her place got her son to attend, which is what was recorded in the COPS event. She said that she was out shopping and when asked to come back she did. The Applicant said she does not recall her husband making specific comments to the attending officers but agreed that the interaction became 'heated'. She said she had no memory of being cautioned by police. I accept her evidence. However, her acceptance of the interaction becoming "heated" indicates an uncooperative attitude towards the inspectors. While not related to a firearms matter, the Applicant's behaviour could indicate an uncooperative attitude unconducive to proper compliance with the obligations of a firearms licence holder, which is not in the public interest. - see below. The Applicant contends that the Tribunal should find that there is no risk to the public if the Applicant has access to firearms.

Discussion

This is a matter which concerns whether it is in the public interest for the Applicant to hold a firearms licence. For completeness, I have also considered if the Applicant is a 'fit and proper person' to hold a firearms licence.
The Respondent has raised a number of issues of concern. I have considered each of those issues and I have formed the view that the decision under review should be affirmed.
In the 2020 Decision, the Tribunal identified the following matters pertaining the Applicant's involvement with firearms legislation which is relevant in these proceedings at [51]-[53]: The applicant has a lengthy history of involvement with the current firearms legislation starting with the issuance of her ABH licence on 14 April 1998. That history is set out in detail in the reasons for the internal review decision dated 28 May 2019. Some aspects of that history are worthy of note. On the one hand, there have been a number of instances in which the applicant has been granted licences, permits and other authorities under the legislation, including: 14 April 1998: category ABH licence issued. 1 March 1998 to June 2003: authorized employee. 11 April 2008: category AB licence issued. 30 June 2012: dealer licence listing the applicant as a close associate issued to David Cramp. 20 May 2010: category G collector permit issued. 5 August 2011: category G collector permit widened. 25 August 2012: employee authority issued. 15 April 2013: category G firearms collector licence to collect category ABH firearms granted. 8 April 2014: applicant authorized to operate David Cramp's firearms dealership business. On the other hand, the record shows a number of instances of revocations, suspensions or refusals by the Commissioner, including: 15 February 2005: application for a firearms dealer licence refused because of the applicant's involvement in her husband's firearms dealership business and concerns that he would continue to have an influence over firearms dealership at her address. 26 November 2005: category H licence revoked for failure to complete training requirements, revocation set aside 21 December 2005 when requirements satisfied. 13 May 2016: category ABG firearms licence and prohibited weapons collector permit suspended. 23 May 2016: dealer employee authority cancelled. 1 September 2017: personal category ABG licence and prohibited weapons collector permit revoked because of contraventions detected by police on 10 September 2015. 23 January 2018: 10 charges of possession offences against the applicant dismissed after hearing in Penrith Local Court. 28 May 2019: refusal of current application for dealer licence following internal review.
The additional relevant matter is the 2020 Decision, affirming the decision to refuse the grant of firearms dealer licence.
In the 2020 proceedings, the Commissioner called evidence from, and made available for cross-examination a number of police witnesses. Unfortunately, I did not have the benefit of hearing from those witnesses.
There was no new evidence put before me concerning many of the matters raised and considered in the 2020 Decision concerning whether the Applicant is a fit and proper person to hold a collectors firearms licence.
It is not in dispute that the applicant was the secretary and manager of John Cramp's personal security and firearms dealership businesses at a time when a significant number of breaches of firearms regulations were detected on 2 November 2004.
I make similar finding as those that were made in the 2020 Decision and conclude that the applicant had worked as secretary and manager in her husband's businesses for many years before.
It is not disputed by the Applicant that she, initially did not disclose her husband as a "close associate" in her application for a dealer licence submitted on 11 November 2004. She nominated him only after prompting by the Firearms Registry. This is material.
I have considered the circumstances surrounding the domestic incident concerning the Applicant's late son and the result in the Local Court where the charges against the Applicant were dismissed. Notwithstanding, an administrative tribunal in a licensing matter has an obligation to consider the whole of an applicant's conduct, not merely the court record.
I find it is very likely given the Applicant's involvement in the businesses run for the family home that she was aware, or should have been aware, of the presence of the prohibited items located by police in 2015, which led to the criminal proceedings brought against her late son, and later herself.
While I have viewed the vision of the video of the search by SLED officer in 2015, I have come to the same, but independent conclusion as recorded in the 2020 Decision at [75]: The matters arising from the police search and seizure on 10 September 2015 are obviously more significant than the 2005 charges, being more recent, but it is significant that all the 2015 charges were dismissed after a full hearing of the evidence, and in addition to the observations above there are some uncertainties in the evidence that raise questions about the seriousness of the contraventions alleged.
In concluding whether the applicant is a fit and proper person to hold a collector's licence, I agree with the findings in the 2020 Decision and note there is no evidence materially different before me that what was before the Tribunal in that proceeding. I adopt the following conclusion, as far as it is necessary and relevant in the disposition of this application, which is set out at [77]: The applicant has never had any criminal convictions, nor have any offences been proved against her. She has no record of violence, or threatened violence, nor is there any evidence of careless or improper use of firearms such as directly to endanger public safety. There have been no known thefts or other losses of firearms in her charge. She has held a master licence under the Security Industry Act since 2004. On balance, therefore, I do not think that the evidence overall suffices for a finding that the applicant is not now a fit and proper person to hold the licence sought. The respondent also relies on other grounds, however.

Public interest

As set out above, I have found that the Applicant was the secretary and manager of her late husband's businesses and would or should have been aware of the number of significant breaches with respect to the firearms legislation detected in 2004. I accept the Commissioner's submissions that the Applicant's failure to accept responsibility for her conduct is a factor, albeit not significant as the Commissioner contends, to be considered in the process of assessing whether it is in the public interest to grant her a collector's licence. I have considered the concession made by the Applicant's solicitor, Mr Kable, that she was involved with the security and gun business in 2004 and had knowledge of some of the offending identified by the Firearms Registry at that time. This was not in dispute.
Notwithstanding, almost 20 years has passed since that time. I place some weight on the Applicant's conduct relating to that period in the context that she has not had any criminal convictions, or offences proved against her, nor is there any evidence of careless or improper use of firearms such as directly to endanger public safety. This weighs in her favour.
I do not accept the Applicant dishonestly failed to disclose her late husband as a close associate of the intended dealership in November 2004. The evidence does not reveal that she did so dishonestly, but it is suggestive of an intent to mislead the Firearms Registry. The Applicant's failure to disclose a then prescribed person as a close associate in her application indicates a lack of capacity or commitment properly to consider, observe and respect firearms legislation; Constantin, [56]. The Applicant, in similar circumstances which are set out in the 2020 Decision, has not grappled with the finding that the Commissioner cannot properly evaluate applications unless applicants make full disclose as required. No evidence in this proceeding has been given to answer, or explain, that question. I am concerned that the Applicant has been reckless or deficient in her care in completing applications for firearms licence applications concerning whether the answers given are true and correct. This is significant.
With respect to the non-disclosure of the Applicant's late husband as a 'close associate' in respect of the application for a firearms dealer's licence, the Applicant has not explained nor put on any evidence concerning that failure. The Applicant in a letter dated 23 June 2017 in support of that application uses the plural pronouns 'we' and 'our' in describing the plans and nature of the business. The Commissioner submits that this indicates that the Applicant did not intend to operate the proposed firearms dealers business alone.
The Commissioner also refers to an email dated 3 March 2019, from the Applicant's husband where he states 'at present we are still in limbo and have been for the past two and a half years in this out fifth about in the NSW court system. Aside from NOT doing any business with people who require out [sic] services we are again losing money and our Retirement Fund is sliding down the hill fast'.
I am satisfied, as the Tribunal was in the 2020 decision, that the use of the plural pronouns 'we' and 'our' refer not only to the Applicant running the dealers business but also her late husband. This is reinforced by the email sent by the Applicant's late husband on 3 March 2019.
There is merit in the Commissioner's submission that the Applicant engaged in similar conduct to mislead the firearms registry in not initially disclosing her late husband as a 'close associate' in the application for a firearms dealer's licence in November 2004. I give this significant weight.
I have considered the Applicant was given a caution in respect of possible contraventions of the security legislation. I accept the Applicant's submissions that there were no demonstrated breaches, but possible breaches. The Applicant conceded that the interaction between herself, her late husband and the SLED officers became 'heated' which I have taken into consideration.
I have placed limited weight on the actions of the Applicant's husband with respect to the way in which he engaged with the SLED officers in February 2017. This is because he is deceased and any concerns held by the Commissioner with respect to his possible having access to firearms if the Applicant was granted a firearms licence is no longer relevant. I make similar findings with respect to the Commissioner's concerns about the Applicant's domestic circumstances given her late husband's antecedents.
I note the Commissioner's concerns concerning the conduct of the Applicant's son is no longer at issue given he is also deceased.
The Commissioner submitted that the Applicant failed to keep records as prescribed by the security industry legislation as referred to in the COPS report. The Commissioner did not call oral evidence in these proceedings on that issue. The Applicant in cross-examination denied that she did not produce the documents. She said she does not remember that the police claimed that she was unable to do that. I prefer and accept the Applicant's evidence.
I have also considered the Commissioner's submissions that the Applicant has failed in her evidence to identify the seriousness of various interactions with the Firearms Registry, police and SLED officers in the past. I have also considered the Commissioner's submissions that the Applicant does not appreciate the serious concerns raised by her background and associations. Notwithstanding, in cross-examination the following question and answer took place: 'Q You would agree your position is that you have a right to a firearm. A Not a right but I do not consider that I should not be granted a firearm. I think it is a privilege to be granted a firearms licence.'
The Applicant also agreed that the 2015/2016 charges were serious. She said that she 'totally agree'(s) in answer to a question about whether the public safety is paramount with respect to issuing firearms licences. The cross-examination included a proposition concerning the history of her holding a licence, a suspension in 2016, the revocation in 2017 and an application for a Category G licence refused in 2021 and the 2017 refusal for a firearm dealer's licence and whether she agreed that in these decisions the Commissioner determined it was not in the public interest hold a licence. She answered 'yes'.
I reject the Commissioner's argument that the Applicant has not demonstrated any insight with respect to the history of declining her various licences given the answers provided in cross-examination. But there remains a deficiency in the Applicant's reflection and explanation of the seriousness in failing to provide full and frank answers to questions about 'close associates' on two occasions. This is despite the Applicant being granted firearms licences after her 2004 failure to do so.
I have also considered and placed little weight on the Applicant's private interests in holding a collector licence. The Applicant's personal interest in having a licence cannot outweigh the public interest. The public's right to safety must take precedence (see - Huckel v Commissioner of Police, New South Wales Police Force [2008] NSWADT 347 at [41] and Hill v Commissioner of Police, New South Wales Police Force Service [2002] NSWADT 218 at [22]).
In conclusion, there have been a number of significant changes with respect to the Applicant's circumstances. These include the death of her son and her husband and the impact that their personal factors and history may have had with respect to the Applicant having access to a firearm.
I have also considered that this application is for a collector's licence. There is no evidence of thefts of firearms from the business or instances of firearms being left unattended or used in a careless or dangerous manner. As found by the Tribunal in the 2020 decision 'the storage arrangements appear to be exceedingly robust.' There is no evidence to the contrary.
There is no evidence that the Applicant has a history of not appropriately handling or storing firearms herself.
Notwithstanding, without any explanation concerning the Applicants failure to properly complete applications for firearms licences, and in the absence of a full and frank disclosure in making two applications, I find that the public can not have confidence that the Applicant will comply with firearms legislation. The Commissioner cannot properly assess firearms licence applications when an applicant does not properly, with due care and skill, provide full and frank answers to questions. I find without an explanation for her twice not declaring her late husband as a close associate in making applications for a firearms licence, and my findings regarding her conduct being suggestive of an intent to mislead the Firearms Registry, it is not in the public interest for a collector's firearms licence to be issued to the Applicant.
I am not able to find there is virtually no risk to public safety if the application were to be granted a collectors firearm licence. In these circumstances, having considered all of the evidence, the correct and preferable decision is to affirm the decision under review.

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

REASONS FOR DECISION

This is an application by Mrs Marilyn Cramp ("the Applicant") for a review of a decision by a delegate of the Commissioner of Police, NSW Police Force ("the Commissioner" or "the Respondent"). The delegate's decision was to refuse the Applicant's application for a firearms collector licence under the Firearms Act 1996 ("the Firearms Act").
On 8 June 2022 the Applicant lodged with the Commissioner an application for the issue of a firearms collector licence. That application was refused on 23 June 2022. The Commissioner received an internal review request from the Applicant on 30 June 2022. At the date of the hearing that internal review had not been finalised. It is not in dispute that due to the request for an internal review not having been finalised the Applicant has standing to bring this application pursuant to s 55(6) of the Administrative Decisions Review Act 1997 ("the ADR Act").
The Applicant has held a number of licences, permits and authorities under the Firearms Act since 1998. It is not in dispute that she had been granted eight licences, permits and authorities during that period and had received seven revocations, suspensions or refusals. The Tribunal notes that the Applicant had been charged with a number of firearms offences, on one occasion, with all charges being dismissed following a hearing in the Local Court. The most recent request for a review of the decision of the Commissioner with respect to an application for a firearms dealers to be issued to the Applicant is set out in a decision Cramp v Commissioner of Police, NSW Police Force [2020] NSWCATAD 133 ("the 2020 decision").
The Applicant's late husband is Mr John Cramp, and her late son, Mr David Cramp. The Applicant's late husband and son held licences or permits on a personal basis and in respect of a family firearms dealership business they conducted at the same premises as their residence in the Blue Mountains, New South Wales. Various interactions with police and the Firearms Registry took place in relation to those licences and permits. Where relevant to the present application, those interactions are set out below.

Applicable legislation

Section 9 of the ADR Act provides the Tribunal with jurisdiction to review of a decision of an administrator where 'enabling legislation' enlivens the Tribunal's administrative review powers. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred by section 75 of the Firearms Act. The Tribunal's jurisdiction includes review of decisions by the Commissioner to refuse an application for a firearms licence.
This application is made under section 75 of the Firearms Act and the ADR Act.
The Firearms Act sets up a scheme to license people to possess and use firearms. One of the underlying principles of the Firearms Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms. Section 3(1) provides: (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms.
The Commissioner, and therefore the Tribunal, has discretion in regard to the issues to be decided in this matter. The Firearms Act provides no guidance on how that discretion should be exercised. However, in Minister for Immigration and Citizenship v Li [2013] 297 ALR 225, the majority of the High Court stated at paragraph [67]: [W]here discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority [[1998] HCA 28] requires nothing less. ...
Section 11(3)(a) of the Firearms Act prescribes that a firearms licence must not be issues unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace.
Section 11(7) of the Firearms Act provides that the Commissioner may refuse to issue a licence if she considers that issue of the licence would be contrary to the public interest.

Fit and proper person

The Commissioner must not issue a firearms licence to the Applicant unless 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": s 11(3)(a) of the Firearms Act.
It is clear from those provisions that being a fit and proper person is a central consideration in the firearms licensing regime.
In discussing the meaning of the expression "fit and proper person", Toohey and Gaudron JJ said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321: 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.
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence (see - Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184).
Public interest considerations play a role in the assessment of fitness and propriety (see - Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65 at [37]) and Smith at [30]).
In the context of the Firearms Act, fitness and propriety "must be considered in the context of at all times ensuring public safety" (see - Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at [22]).

The public interest

The term "the public interest" has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court stated at 681: "The purpose of the reference to "public interest" is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commission's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation."
In Constantin v Commissioner of Police [2013] NSWADTAP 16 at paragraph [33] the Appeal Panel said that: "The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system."
In Cusumano v Commissioner of Police [2001] NSWADT 50 at paragraph [23] Deputy President Hennessy stated: "There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act."
This approach has been applied consistently in matters where the reviewable decision is to refuse to grant a licence. That is, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.
Section 3 of the Firearms Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community's interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at paragraphs [27] - [28] Deputy President Hennessy, as she then was, said that in terms of public safety: "27 …The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. 28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk."
Ward v Commissioner of Police dealt with the issues of whether the applicant was a "fit and proper person" to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at paragraphs [130] - [134].
The question of risk is not, however, to be approached in an absolute or mechanistic way, but in a nuanced way, taking account of all the circumstances, including attitudes, character, and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at paragraphs [64] - [66].

At a glance

Court

Decision date

Source

Judgment (11 paragraphs)

Parties

Cases Cited (9)

Cited By (1)