Curtis v Commissioner of Police, NSW Police Force [2025] NSWCATAD 269;

(1) the Applicant is a "fit and proper" person to hold a firearms licence;

(2) it is in the "public interest" for the Applicant to continue to hold a firearms licence.

1. The Applicant has held firearms licences since 2006.
2. On the evening of 25 April 2003, the police attended a public place where the Applicant was involved in a brawl. The police said that the group was intoxicated and drinking alcohol in an alcohol free zone. The police issued a move on direction but the group returned. The police also said that the Applicant swore at them.
3. The police subsequently arrested and charged the Applicant involving the use of offensive language in or near a public place or school. That charge was subsequently withdrawn.
4. A further incident occurred on 11 December 2004 in a public place. The police issued the Applicant with a "move on" direction and he complied.
5. On 29 July 2008, the police were conducting a patrol and observed the Applicant and one other person spray painting on a wall. On further inquiries, the police ascertained that they had permission to do so. The police say the Applicant and the other person became aggressive and questioned police powers.
6. [NOT TO BE PUBLISHED]
7. On 25 February 2024, at about 1:40 AM, the Applicant was travelling and was stopped by the police for random breath testing. The breath test produced a negative result. An oral fluid test, however, produced a positive detection to methamphetamine. I will refer to this test as the "roadside test". The Applicant was then arrested for the purposes of a secondary test and walked to a random breath test bus.
8. For the second test in the random breath test bus, the police utilised A Drager Drug test 5000 STK ("STK") and a drug collection head ("DCH"). I will refer to this test as the "Drager test". Sergeant Mitchell Gage was present at the testing. His written statement was in evidence. He also gave oral evidence at the hearing of the matter attending by audio-visual link.
9. During the Drager test, the STK section disconnected from the DCH and fell into the Applicant's lap. The evidence was that when the STK fell, the sampler pad was face up.
10. The Applicant, having been directed by Sergeant Gage to do so, picked up the STK section by holding its grey handle and slid the sampler back into the DCH. The DCH did not leave the Applicant's mouth during this time. The test returned a positive result for methamphetamine.
11. When asked whether he took drugs, the Applicant said: "no comment".
12. The oral fluid collected by the DCH was placed in a sealed vial in the presence of the Applicant and a security seal number was used to label the sample. The sample was sent for analysis to the NSW Forensic and Analytical Science Service. following testing, they said that a result positive to methamphetamine was obtained.
13. [NOT TO BE PUBLISHED]
14. On 16 June 2024, the Applicant was charged with driving a vehicle while having an illicit drug present in the blood. The charge was later withdrawn. The police said that this was because the oral testing did not comply with the standard operating procedures, which required the test to be repeated if the test detaches. This had happened.
15. On 21 June 2024, the firearms registry suspended the Applicant's firearms licence. The stated reason of the Respondent for doing so was that the Applicant was subject to a prescribed offence relating to drugs and that it was not in the public interest for the Applicant to possess a firearms licence.
16. On 11 July 2024, the police attended the Applicant's residence and served a suspension notice on him. There were statements in evidence from police officers who attended on the day. They were Sergeant Erin Kennedy and Sergeant Benjamin Guy. Both attended the hearing and gave oral evidence.
17. Sergeant Guy described the Applicant's conduct as "sarcastic, combative and condescending". The police also reported that he said: "Everyone should have guns, the world would be a better place". Police also saw a vehicle with a rear sticker on the windscreen that said: "Fuck Gun Control".
18. The Applicant also made several references to "pigs". The police said they thought that this was a reference to them.
19. The police seized four large boxes containing ammunition and 12 firearms.
20. Between 14 November 2024 and 18 February 2025, the Applicant wrote to the firearms registry on numerous occasions seeking the return of his firearms and raising concerns regarding the treatment of his firearms.
21. On 18 February 2025, the Applicant's category AB firearms licence was revoked. Following internal review, the decision to revoke the Applicant's firearms licence was affirmed.
22. On 6 May 2025, the Applicant lodged an appeal with the Tribunal seeking administrative review of the decision to revoke his firearms licence. These are the proceedings before the Tribunal for determination in this matter.

1. Under s 75(1)(c) of the Firearms Act, a person may relevantly apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (NSW) ("ADR Act") of a revocation of a licence or permit issued to the person.
2. Section 30 of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act") allows jurisdiction to the Tribunal to exercise functions as are conferred or imposed on the Tribunal under the ADR Act.
3. It was not in dispute that the Tribunal has jurisdiction for administrative review of the decision of the Respondent in this matter, in circumstances where the Respondent had revoked the Applicant's licence under the Firearms Act.
4. The Tribunal's powers on review are set out in s 63 of the ADR Act as follows:

"(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal".

1. On 8 July 2024, the Tribunal heard an application for orders under s 64 of the NCAT Act. The Tribunal, among other orders, made an order prohibiting publication of certain confidential materials and of matters contained in that material.
2. The hearing of the Applicant's application for review of the Respondent's decision to revoke his firearms licence took place on 15 October 2025. The Tribunal made further orders on that day for part of the hearing to occur in confidence. The Applicant, his legal representative and members of the public were not present for that part of the hearing. That part of the hearing dealt with the confidential material.

1. The statutory scheme governing the issue or refusal of a firearms licence is relevant to determining when a licence may be revoked. This is because the Firearms Act says that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind.
2. The statutory scheme for the licencing of firearms is set out in the Firearms Act. Under that scheme, the Respondent "may" issue a licence in respect of an application, or refuse any such application under s 11. As such, the Respondent's power to issue a licence is discretionary.
3. Section 3 sets out the underlying principles of the Firearms Act in the following terms.

"Principles and objects of Act

(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.

(2) The objects of this Act are as follows -

(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(b) to establish an integrated licensing and registration scheme for all firearms,

(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms,

(e) to ensure that firearms are stored and conveyed in a safe and secure manner,

(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms".

1. The paramount principle derived from s 3 is ensuring public safety (Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218, at [24]). This is the "overriding need" that must be given effect under the legislation.
2. Matters of fact relevant to determination of the question must be proved under the required standard of proof, namely the balance of probabilities. However, there is no onus of proof. The Applicant, in particular, does not bear the onus of proof (Meacham v Commissioner of Police [2020] NSWCATAP 107, [75] and [81]-[82]; Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10, at [34]).
3. The manner in which evidence is to be received has been described in the following terms: "the parties put on such evidence as they wish and, in a matter of this kind involving the exercise of a discretion, it is a matter for the Tribunal to properly consider all relevant materials and ignore all irrelevant matters in exercising the power of the relevant administrator in review proceedings. This is especially the case where a decision has been taken on a discretionary basis in light of the public interest". The Tribunal is required to base its findings of fact on "logically probative material" (Meacham, at [82] - [83]).
4. When exercising the discretionary power under s 11, what is required is an assessment of risk in allowing an applicant to have a firearms licence. The test is stringent. The Tribunal must be satisfied that there is "virtually no risk" (Ward v Commissioner of Police [2000] NSWADT 28, at [28]).
5. Section 11 says when a licence must not be issued. Section 11(3) provides:

"A licence must not be issued unless -

(a) 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,

.....

(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."

1. Section 24 says when a licence may be revoked. It provides:

"24 Revocation of licence

......

(2) A licence may be revoked -

(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or

......

(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

......

(d) for any other reason prescribed by the regulations".

1. Clause 20 of the Firearms Regulations 2017 (NSW) ("Regulations") also makes provision for when a licence may be revoked. It says:

"20 Revocation of licence - licence not in the public interest

The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence".

1. Section 24(2)(a) says that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. Provisions setting out when a licensee would be required to be refused a licence of the relevant kind are found in s 11 described above. Accordingly, how s 11 may or may not apply to the Applicant, were he to apply for a licence, is relevant to determining whether the revocation of his licence should stand or not.
2. The questions for determination by the Tribunal in the present case are as follows:

(1) whether the Respondent can be satisfied that the Applicant is a "fit and proper person" to hold a licence within the statutory meaning and can be trusted to have possession of firearms without danger to public safety or to the peace

(2) is it in the public interest for the Applicant to continue to hold a firearms licence.

1. A matter of fact relevant to determination of this matter is whether or not the results of the tests carried out on the Applicant on 25 February 2024 carry weight and ought to be accepted. The Applicant's submission was that the roadside test may have resulted in a "false positive". He also said that the results of the Drager test were impugned by likely contamination. The Respondent on the other hand said that the results of both tests carried weight and should be accepted.
2. The disagreement between the parties turned, among other things, on the likely consequences of the detachment of the STK section during the Drager test and its subsequent reattachment. The particular question was whether this had the effect of contaminating the device and as a result, compromising the results of testing.
3. There was no dispute that the device used for the Drager test did come apart during testing. The Respondent's evidence however given by Sergeant Gage was that the white pad forming part of the STK fell face up onto the Applicant's hand and did not come into contact with his skin so that there was unlikely to be any risk of contamination.
4. The Respondent also says that the fluid test from the laboratory contained an approximate methamphetamine concentration averaging 13,128 in ng/ml. The Respondent says that this is over 1,300 times the laboratory's lower reporting limit of 10ng/ml. He also says that it is not possible to have an oral fluid concentration of this kind as a result of contamination.
5. Additionally, the Respondent says that the initial roadside test was also positive. He disagreed that this was a "false positive".
6. The Respondent relied on a "comprehensive expert report" dated 5 September 2025 from Mr Alen Lin, a forensic pharmacologist. Mr Lin said that the purpose of oral fluid random drug testing of drivers was only to establish a presence of a drug and did not indicate impairment at the time of driving. He says that if a driver returns a positive detection for drugs on the initial screening test, then an oral fluid sample is obtained from the secondary drug screening test and sent to the laboratory for a confirmatory analysis to identify the specific drugs used. The Respondent says that this is what happened in the present case, the initial roadside test being carried out followed by the later Drager test.
7. The Applicant, for his part, relied on expert evidence of Dr Michael Robertson. He is a consulting pharmacologist, forensic toxicologist and chemist. Dr Robertson's evidence was that a roadside test is a "semi quantitative" test and would produce a more significant result if there were higher drug levels present. He says that the roadside test showed that if the methamphetamine was present, the concentration was "relatively low". He went on to say that if the concentration of the drug was more than 200 times the "cut-off" concentration of the device, he would have expected a much stronger response in the roadside test. I understood the Applicant to be saying that there was an inconsistency between the low concentration of methamphetamine shown in the roadside test and the much higher levels shown in the Drager test.
8. The Applicant says that there is a question of the reliability of the test reports because of this inconsistency. His submission is that the roadside test produced a "false positive" and the result of the later Drager test was compromised by contamination.
9. Dr Robertson, however, also says that if it is assumed that the sample or collection pad remained in the mouth of the Applicant and did not come into contact with any potentially contaminated surfaces, he concurred with Mr Lin that "contamination at this point is not likely". However, he also says that if the sample or collection pad fell into the lap of the Applicant and he touched or handled the pad, contamination was possible. He says that while contamination "cannot be proved", he did not believe that contamination "can be excluded".
10. Dr Robertson also refers to the possibility that the Applicant "did or did not have an amount of drug on his clothes or hands". I understood this to be a possible explanation for the positive testing, rather than the positive testing being the result of the presence of methamphetamine in the Applicant's body.
11. The evidence of Dr Robertson and Mr Lin are consistent on one matter, namely that if the sample or collection pad remained in the mouth of the Applicant and did not come into contact with any potentially contaminated surfaces, contamination was not likely.
12. In summary, the evidence shows that there was a presence of methamphetamine both in what the roadside test and the later Drager test showed. Whether or not the roadside test was "semi-quantitative" or not, the evidence is that the test was positive. The Drager test was also positive.
13. There is a question as to whether contamination affected the result of the Drager test. Both experts agree that the risk of contamination was low if the STK did not come into contact with a contaminated surface. I accept the evidence of Sergeant Gage that when the STK fell, it did not touch the skin of the Applicant. The Applicant says that when reconnecting the STK to the DCH, the Applicant could have touched the testing swab. Dr Robertson, however, says that contamination "cannot be proved" and was only a possibility. I am of the opinion that I can, in these circumstances, accept on the balance of probabilities the positive result of the Drager test for methamphetamine, despite the separation of the STK during testing.
14. Even if the positive result of the Drager test was a consequence of the presence of methamphetamine on the Applicant's clothing, a possibility that Dr Robertson raised, absent explanation as to why this may have happened, this is not something that assists the Applicant's case.
15. Further, when asked whether he used drugs, the Applicant did not deny that he did, and said: "no comment". This too does not assist the Applicant.
16. For these reasons, I accept, on the balance of probabilities, that the results of the two tests in evidence show that the Applicant had tested positive for methamphetamine use.

1. The first question is whether 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" within the meaning of s 11(3)(a) of the Firearms Act. A licence must not be issued to the Applicant unless the Respondent is so satisfied. If not so satisfied, these are grounds for revocation of a licence by reason of s 24(2)(c).
2. Under s 24(2)(c), a licence may be revoked if "the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence". The additional words found in s 11(3)(a) asking whether the person "can be trusted to have possession of firearms without danger to public safety or to the peace" do not appear in s 24(2)(c). However, s 24(2)(c) applies where the person in question is "no longer" a fit and proper person. This indicates, in my opinion, that s 24(2)(c) refers to an earlier time when the person satisfied the description of a "fit and proper person". Given that an applicant had to be a "fit and proper person" under s 11(3)(a) to obtain a licence in the first place, this must mean that the reference to a "fit and proper person" in s 24(2)(c) carries the same meaning as in s 11(3)(a) and not some different meaning.
3. What is a "fit and proper person" generally requires making a value judgment. In Australian Broadcasting Tribunal v Bond ("Bond Media case") [1990] HCA 33; (1990) 170 CLR 321, the High Court (Toohey and Gaudron JJ) said, at [63]:

"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".

1. Judicial Member Higgins, as she then was, considered the meaning of the phrase "fit and proper person" in the context of firearms in Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254. She said, at [22], again emphasising the relevance of conduct:

" .... s. 11(3)(a) of the Act requires the Commissioner to determine the fitness and propriety of an applicant for a licence by having regard to the applicant's conduct and whether that conduct is such that he can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace".

1. The Respondent relied on the conduct of the Applicant in 2003 and 2004 described at [4] - [6] above and other behaviours the police said were disrespectful described at [19]-[20] above, to support the submission that the Applicant was not a "fit and proper person" for the purposes of the Firearms Act.
2. The Applicant, on the other hand, says that being "difficult or belligerent" does not make a person more likely to be an irresponsible firearms owner. He also says his bumper sticker and views on gun control do not mean he cannot be trusted with firearms.
3. I do not think that the events of 2003 and 2004 carry much weight of themselves given the significant amount of time that has elapsed since then. The Applicant's later behaviours in 2024 described at [19] - [20] carry more weight and clearly do not assist the Applicant. However, taken by themselves, behaviours occurring at particular times in particular circumstances, are not sufficient to allow me to make a determination of whether or not the Applicant is a fit and proper person for the purposes of holding a firearms licence, without also considering the remainder of the evidence.
4. The Applicant's attitude towards law enforcement revealed by the evidence as a whole is a matter that requires consideration, separately from particular behaviours occurring at particular times. The Respondent submits that the Applicant's attitude towards police including making comments about "pigs" shows a concerning attitude towards the law and police in carrying out their duties. The Respondent says that these are matters going towards the Applicant's honesty and integrity. The Applicant on the other hand said that these were simply attempts at "dark humour" and that even if the Applicant could have been more self aware, this does not warrant a revocation of his firearms licence.
5. I do not think that the Applicant's attitudes as shown in the evidence from 2024 assist him. I think they are relevant to the determination of whether or not he is a fit and proper person for the purposes of the Firearms Act and cannot simply be dismissed as "humour". This is not a case where the conduct of the Applicant occurred only in the past and a period of years has elapsed since the conduct in issue (Petricevic v Commissioner of Police, NSW Police Force [2022] NSWCATAD 24, at [67]). The conduct dates to last year.
6. The evidence establishing the Applicant's use of methamphetamine is also of relevance in making a determination of whether he is a fit and proper person for the purposes of holding a firearms licence. The Applicant relies on the absence of a conviction arising out of the positive tests for methamphetamine. He also says that he has no history of drug taking. He claims an "aversion" to drugs and says that he has lectured his children against the dangers of drugs.
7. The Respondent, on the other hand, explained the reasons why charges were not pressed as set out at [16] above and said that these circumstances did not prevent reliance on the test results for the purposes of making a determination under the Firearms Act. I understood the Respondent's submission to be that despite the higher criminal standard or proof required to obtain a conviction, the Tribunal was not prevented from accepting the test results in these proceedings on the civil standard of proof.
8. I agree that the absence of a conviction does not prevent the Tribunal from accepting evidence surrounding the alleged conduct of the Applicant, including the test results. In Joseph v NSW Commissioner of Police [2017] NSWCA 31, the Court of Appeal said, at [62[-[63]:

"Before this Court, Mr Joseph relied upon the Appeal Panel decision in Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55 at [20], which is in the following terms:

"20 We make the following short observations. It is quite possible that material considered in a criminal proceeding will be relevant to the exercise of a licensing discretion even though the particular offences charged have not been proven. The Tribunal is entitled, and duty bound, to take into account any relevant material going to the question of what is the correct and preferable decision in connection with the particular administrative discretion. The mere fact that a court has dismissed charges is of no great moment. It is the reasons why the charges were dismissed that matter. If an offence has failed on a technical point, as has been strongly asserted by Mr McLaughlin in this case in relation to at least one of the charges, the statements of prosecution witnesses may retain high probative value for the purposes of the exercise of the licensing discretion. Obviously, if they were not subject to cross-examination at the local court proceeding, then care would need to be exercised at the point of any inquiry by the Tribunal that a process of that kind be allowed."

When read as a whole, this paragraph does not assist Mr Joseph. Its tenor is consistent with what I have said above, in particular in its affirmation that there is no reason in principle why an administrative decision maker should not take into account evidence of matters that were the subject of criminal charges that did not lead to convictions. The point correctly made by the Appeal Panel in Mercer is that any available material disclosing the reasons why there were no convictions may shed light on the weight to be given to the evidence".

1. I accept the explanation of the Respondent as to why charges were not prosecuted. I do not think that these are circumstances that prevent the Tribunal from accepting the evidence produced by the tests on the Applicant for the reasons set out at [54] - [58] above. The evidence of the Applicant's use of methamphetamine weighs against him in making a determination as to whether he is a fit and proper person within the meaning of the Firearms Act.
2. The Applicant relied on eight character references which were in evidence. They speak highly of him. However, the Respondent said that most did not refer to the context of the Applicant's firearms licence. The Respondent also says that the character references do not demonstrate an understanding of the issues that led to the decision to revoke the Applicant's firearms licence and were of limited use. I take note of the character references but the weight they carry does not displace the weight carried by the other matters set out above.
3. [NOT TO BE PUBLISHED]
4. I consider that the Applicant's positive test for methamphetamine and the further matters set out at [73] above are of sufficient gravity to allow for a finding that he does not satisfy the test under s 11(3)(a). This is not a case where there is "virtually no risk" in allowing the Applicant to have a firearms licence. It follows that the Respondent's decision to revoke his firearms licence should stand.

1. The Respondent's submission is that it is not in the public interest for the Applicant to hold a firearms licence. What is the "public interest" is not defined in the Firearms Act. In Saxby v Commissioner of Police [2021] NSWCATAD 275, the Tribunal said, at [14]:

"The expression "public interest" is not defined in s 11(7), nor elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objects of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the 'public interest' is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in deciding whether to exercise a discretion adversely to an individual. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24]".

1. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [24], the Appeal Panel said:

"... public interest is a term embracing matters against others, of standards of human conduct and of the functioning of government and government instrumentalities et cetera established and accepted to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct to the interest of the individual or individuals.

The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal... ".

1. I accept the Respondent's submission that the public interest weighs against the Applicant being granted a firearms licence. It cannot be said that there is "virtually no risk" in the Applicant holding a firearms licence having regard to the matters set out at [73] - [74] above. In these circumstances, I am satisfied that grounds for revocation of the Applicant's firearms licence would have been established on the basis of public interest.

1. For the reasons set out at [73], [74] and [77] above, the Respondent has made out his case for the revocation of the Applicant's firearms licence.

(1) The administratively reviewable decision of the Respondent under review is affirmed.

(2) Pursuant to ss 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the contents of all paragraphs in these reasons marked NOT TO BE PUBLISHED are not to be published or disclosed to the Applicant or the public.

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.

27 November 2025 - Respondent Legal representation amended.