Dadoun v Commissioner of Police, New South Wales Police Force

Jurisdiction

1. The Commissioner had revoked Mr Dadoun's Firearms Licence application on the basis of cl 20 of the Regulation, which is set out at [16] above.
2. Section 75 of the Firearms Act provides that a person aggrieved by any of the seven listed actions of the Commissioner can apply to the Tribunal for administrative review of that decision. The third matter listed at s 75 concerns the revocation of a licence. Relevantly the section provides: Part 8 Applications to Civil and Administrative Tribunal 75 Administrative reviews by Civil and Administrative Tribunal of certain decisions (1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions - (a) the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person, (b) a condition imposed by the Commissioner on a licence or permit issued to the person, (c) the revocation of a licence or permit issued to the person (other than a revocation on the basis that the holder of the licence or permit is subject to a firearms prohibition order or an apprehended violence order), (d).. (e)… (f)… (g)… (Emphasis added)
3. The Tribunal's powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides: (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. (3) 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.
4. The Tribunal has jurisdiction under the Firearms Act as noted at [19] above.
5. As noted from the section above, an application under s 75 of the Firearms Act is an administrative review. The Tribunal's function on review under section 63 of the ADR Act 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 in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

Administrative Review by the Tribunal

1. The parties agree that Mr Dadoun filed his application for Administrative Review on 29 January 2023 being 20 days after receipt of notice of the Internal Review Decision. The application to the Tribunal was clearly within the 28 day period provided to lodge an application for Administrative Review. Therefore the Tribunal has jurisdiction to hear the matter having regard to s 75 of the Firearms Act 1996 and the ADR Act.

Applicant's written evidence

• Exhibit 'A-1'. Applicant's statement of events.
• Exhibit 'A-2' Applicant's evidence filed 1 May 2024.
• Exhibit 'A-3' course completion material Firearms Training and Safety filed 2 June 2024.
• The applicant also relied on material lodged by the respondent and filed and served written submissions and his Solicitor made submissions in reply at hearing.

Respondent's written evidence

• Exhibit 'R-1' Documents filed under s 58 ADR Act (128 pages) filed 8 March 2024.
• Exhibit 'R-2' Affidavit of S Cooke affirmed 23 April and open exhibit 'SC-1'.
• Exhibit 'R-3' Respondent's Evidence Bundle (83 pages) including USB data file of Police body worn video filed 31 May 2024.
• Exhibit 'R-4' transcript of Local Court Bathurst hearing concerning Dadoun and Skaf firearms offences 23 January 2024.
• The commissioner also filed detailed written submissions and closing submissions.

1. Mr Dadoun was represented by Solicitors and the Commissioner was legally represented. Both sides also made oral submissions at hearing at the conclusion of the evidence.
2. Mr Dadoun was subject to cross-examination at hearing. His matter was heard with the related administrative review of Mr Bilal Malas who was a licensed firearms user who had lent his firearms to Mr Dadoun and Mr Skaf, who ultimately took them to the Rock Forest property where the evidence indicates that they were used.
3. Mr Dadoun and Mr Malas were represented by the same Solicitor and the parties agreed that in effect the matters be heard concurrently. However there was separate evidence as well as an overlap of evidence, which applied to both applications.
4. In addition the Commissioner relied on confidential evidence in both proceedings which was dealt with at the conclusion of the open sessions by way of a brief confidential session. The existence of confidential evidence was not itself confidential to the applicant and his Solicitor, only the nature and detail of that evidence. We address this in further detail below and also in confidential reasons.

Mr Dadoun's evidence at hearing

1. In contrast to Mr Malas, Mr Dadoun's time in the witness box was longer but not lengthy. A significant portion of the hearing time was taken up dealing with the Police body worn footage captured when they attended Rock Forest property at the conclusion of cross examination.
2. In evidence in chief Mr Dadoun adopted his statements in Exhibit 'A-1' as true and correct.
3. In cross examination Mr Dadoun was asked about the firearms that he borrowed. He said that he borrowed seven firearms for Mr Malas and transported them and the ammunition from Sydney to Rock Forest. He said that he and Mr Skaf unloaded the firearms.
4. Mr Dadoun confirmed that there were 10 people in total at the property. The property has a two level house and behind it about 150 metres away is a pond or lake. He said that he was scoping his firearm in the direction of the pond. It was put to Mr Dadoun that as a lie and that he was shooting quail in the vicinity of the house. Mr Dadoun denied that he was lying.
5. The day after they arrived Mr Dadoun said that they went out shooting in two groups and were attempting to shoot kangaroos, ducks and rabbits. The two groups were separate. One group had Mr Skaf and the father of Mr Malas, with the others left at the home. The other group was himself, Mr Narim and Mr Trad. Initially Mr Dadoun said that he decided to target shoot at the back of the house and later they decided to go 'hunting'.
6. Mr Dadoun was asked about the evidence that he received a call from Mr Skaf about Police being on the property. He denied that there was a call and denied that he was already up in the ridge when Police turned up and only came back because the call alerted him to Police being there.
7. Mr Dadoun said that in the Local Court he had given evidence that Mr Trad was with him (as part of the hunting group of three) at the time Police entered the property. His evidence was that they were 'at the back of the house when the Police arrived'. The Commissioner had submitted that Mr Dadoun was up on the ridge away from the house and the unattended firearms.
8. Mr Dadoun denied that the non licenced persons used or in any way 'possessed' firearms whilst at the Rock Forest property. It was put to Mr Dadoun that he was involved in other (non firearms) criminal activities at the Rock Forest property on 7 and 8 January 2023. Mr Dadoun denied that he was involved in any activity of an unlawful nature.

Confidential Evidence of the Respondent

1. As noted at [27] above the Commissioner relied upon confidential evidence the existence of which was not confidential. The contents of that evidence were explored during a confidential session whereby the Commissioner's representative took the Tribunal through the confidential evidence.

NOT FOR PUBLICATION

1. (confidential evidence)
2. (confidential evidence)
3. (confidential evidence)

Applicant's submissions

1. Mr Kable who appeared for Mr Dadoun submitted that in respect of his evidence, under the Regulation certain activities were permitted such as sighting of the firearm. Shooting of kangaroos, ducks and rabbits was permitted. Mr Kable submitted that Mr Dadoun had undertaken a safe shooters course (Exhibit R-3).
2. It was submitted on behalf of Mr Dadoun that a significant matter was that Police did not remove the firearms form the possession of the licenced users immediately, but the following day, leaving a 24 hour lag. It was inferred by the Tribunal that this submission sought to illustrate that any risk or breach was lower level.
3. In addition it was submitted that the unlicenced attendees were never breached for any firearms offences. Reference was made to the observations at Court where the Magistrate address why the firearms were not fully secured but all reasonable steps were taken when persons were engaged on a hunting trip.
4. Submissions were also made in the content of the observations of the Tribunal in the case of Webb v Commissioner of Police, New South Wales Police [2004] NSWADT 110 in respect of the risk needing to be real and appreciable.
5. It was further submitted at [16] of the post hearing submissions filed on behalf of Mr Dadoun and in the other proceedings (Mr Malas) 'that neither applicant has previously been requested to supply any information in relation to allegations of association with individuals with a criminal history. It is certainly not a question in a firearms licence application'.
6. Clause 28A of the Regulation was advanced as permitting certain activities.

Respondent's evidence

1. The Commissioner relied significantly on the body worn video footage that formed part of the evidence tendered without objection in the hearing. It appears that the same evidence was run before the Local Court at Bathurst when the infringement matters were heard. Both Mr Skaf and Mr Dadoun were acquitted of the offences. The issue before the Court turned on whether they had 'possession' of the firearms for which the relevant infringement notices issued.
2. A significant dispute concerned whether Mr Dadoun was away from the house in a vehicle up on a ridge at the time Police arrived at the house on the Rock Forest property. Police maintained that he was up on the ridge and had been called to come back to the house as Police were there. Mr Dadoun maintained that he was at the back of the house and in Court the Police officer's evidence was refuted as to the probability that Police would have seen him there as he was actually there. His Solicitor suggested to the Police witness that he could 'see through (solid) houses'.
3. Evidence from the Police material of Mr Dadoun saying that he was shooting at quails, and that he thought that he got one but it got away was suggested as a breach as they were actually doing target practice with the birds. In the video evidence Police ask Mr Dadoun whether 'that is tobacco' inside the house to which he says he does not know. Firearms were located and unattended inside the house, not secured by licenced shooters, (five inside the house) are located on a mattress, under a sleeping bag or doona and otherwise exposed and accessible.
4. Other video evidence depicts ammunition rounds lying loose inside the house in the downstairs room where the firearms are found. A .22 round is located but no .22 firearm initially.
5. Whilst Mr Dadoun's legal representative referred to the video footage of the juvenile with the 'high-vis vest' emptying some ammunition out of a pocket, this it was submitted was not where Mr Dadoun was located as he was rounding up the others on the other side of the house. The respondent referred to evidence of Mr Trad emptying ammunition which occurs at count 1:05 on the video. This was according to the Commissioner clear evidence of a breach and was clear evidence that unauthorised persons had access to firearms.
6. The Commissioner relied upon the affidavit of the Police Officer and submitted that it demonstrated that certain firearms were in certain places. It was submitted that from this evidence it was clear that they were not being directly controlled by licenced firearms users.

Respondent's submissions

1. The Commissioner respondent submitted that the Tribunal should dismiss Mr Dadoun's application as he is no longer a fit and proper person to hold a firearms licence and that it was not in the public interest for him to hold a licence due to multiple contravention of firearms provisions.
2. The Commissioner submitted at hearing that Mr Dadoun knows the difference between sighting and target shooting. Reference was made to clause 28A of the Regulation noting that target shooting, sighting and related matters are strictly curtailed by the clause. The Tribunal noted that each party applied cl 28A for different purposes to the evidence that they wished to rely upon. 28A Licences and permits extend to authorise sighting in, patterning and related activities (1) The authority conferred by a licence or permit that authorises the use of a firearm by a person extends to include the use of a firearm by the person for the purposes of any of the following activities - (a) sighting in the firearm (including sight alignment and including patterning of a shotgun), (b) tuning of the firearm (including the adjusting or aligning of a shotgun), (c) familiarisation with or testing of ammunition, (d) practising on stationary targets (or moving targets in the case of a shotgun) but only for the purposes of an activity referred to in paragraphs (a)-(c). (2) This clause authorises the use of a firearm on any land on which use of the firearm is not otherwise unlawful and is not limited to use at an approved shooting range. (3) This clause does not authorise - (a) the use of a firearm to participate in shooting activities conducted by a shooting club at an approved shooting range except the specific activities referred to in subclause (1), or (b) the use of a shooting range otherwise than in accordance with the approval of the shooting range, including any conditions subject to which the approval was granted, or (c) the use of a pistol in a way that is not otherwise authorised by or under the Act. (4) For the removal of doubt, this clause does not prevent a person who is the holder of a licence or permit from using a firearm at an approved shooting range pursuant to the exemption conferred by section 6B of the Act.
3. In addition to contraventions of the firearms provisions the Commissioner submitted that Mr Dadoun's association with individuals including Mr Malas's father Belal Malas, who was present and directly involved in the incident at the Rock Forest property, was of concern. It was submitted that Mr Malas senior associates with individuals with significant criminal antecedents.
4. Like in the related matter, submissions were made prior to hearing which focused on non compliance with the genuine reasons provisions such as membership and attendances at club events. Breaches of this nature were identified.
5. In respect of traffic history no significant submissions were made. The Commissioner's case mainly turned on the failures by Mr Dadoun at Rock Forest in respect of various beaches of the firearms regime pointing to an inability to ensure that he maintained continuous and safe control of firearms in his possession. The Tribunal notes that the Local Court was unable to find to the criminal standard that the firearms for which the Infringement Notice issue were actually in Mr Dadoun's possession.
6. It was submitted that the presence of firearms under Mr Dadoun's supervision at Rock Forest demonstrated a failure to ensure safety whilst these firearms were under his supervision or responsibility and therefore in his possession.
7. Mr Dadoun failed to take all reasonable precautions to ensure that his firearms would be kept safe and that unauthorised persons would not possess the firearms during that period. In this regard the Commissioner submitted that breaches by Mr Dadoun arose because he could not ensure that the firearms were only used lawfully and did not come into the possession of unauthorised persons.
8. In this regard the Commissioner asserted various breaches including breaches of s 19 (2) (b) of the Firearms Act: 19 Conditions of licence (1) A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose. (2) Without limiting subsection (1), each licence is subject to the following conditions - (a), (b) the licensee must not permit any other person to possess or use any firearm in the licensee's possession if that other person is not authorised to possess or use the firearm,
9. Further breaches of s 7A were submitted in addition to a submission that s 24 (2) (b) (i) provided a 'further basis for a revoking of the licence due to a breach of the regulations'. Those provisions provide: 7A Offence of unauthorised possession or use of firearms generally (1) A person must not possess or use a firearm unless the person is authorised to do so by a licence or permit. Maximum penalty - imprisonment for 5 years. (2) Without limiting the operation of subsection (1), a person who is the holder of a licence is guilty of an offence under this section if the person - (a) uses a firearm for any purpose otherwise than in connection with the purpose established by the person as being the genuine reason for possessing or using the firearm, or (b) contravenes any condition of the licence. 24 Revocation of licence (1) A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order. (1A)… . (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 (b) if the licensee - (i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, (Emphasis added)
10. It was also submitted that it would not be in the public interest for Mr Dadoun to hold a licence because of his association with various persons with significant criminal histories. It was submitted that the Tribunal would not be able to be satisfied that there was virtually 'no risk'. It was also submitted that it was clear that unlawful activity was being carried out at the Rock Forest property.
11. In post evidence submissions the Commissioner referred to the confidential evidence as noted above, which was adduced in camera. In open submissions the Commissioner referred to Mr Dadoun's breaches prior to the Rock Forest Incident in January 2023 including failure to maintain membership and attend required number of events, (target shooting), similar failures in respect of hunting, and a failure to notify the Firearms Registry of a change in genuine reason (including no longer having a genuine reason) within 14 days of such a circumstance arising. The Commissioner submitted that a further breach involved Mr Dadoun's reapplication in 2022 whereby he had in principal failed to meet the compliance requirements regarding genuine reason. However when asked to declare on his reapplication whether there had been any change in his circumstances or that he was complying with the provisions / requirements rather than referring to those changes he did not provide that information to the Commissioner when he reapplied. This it was asserted amounted to a false declaration.
12. The Commissioner also relied on the technical breaches in that the use of the firearms at the Rock Forest property on Mr Dadoun's own admission was contrary to the Hunting Club genuine reason given. The Commissioner maintained that Mr Dadoun was not 'in the dwelling' at the time that Police arrived and was 'up on the ridge', thus leaving the firearms that were inside the house unsecured for the purposes of 'not being in his presence and under his control'. This issue remained an ongoing contention between the parties for the entire proceedings.
13. The Commissioner maintained that the Tribunal could and should be satisfied that some of the non firearms licence holders possessed and used firearms at the Rock Forest property on the available evidence. This it was submitted was a breach of s 19 (2) (b) of the Firearms Act by Mr Dadoun by allowing unauthorised persons to possess and use the firearms that were his responsibility and said to be under his control.
14. Further submissions were made about Mr Dadoun's evidence and that he and Mr Skaf were in breach of various Acts such as the Biodiversity Conservation Act 2016 and the Game and Feral Animal Control Act 2002 in respect of Mr Dadoun's evidence that he was shooting kangaroos without a licence and ducks and quails without a permit issued under those pieces of Legislation.
15. Further submission were made in respect of the storage of the firearms in the dwelling (whether it was conceded that Mr Dadoun was up on the ridge or in the dwelling or not). The evidence showed that the firearms were exposed and unsecured. Due to the multiple alleged breaches the Commissioner submitted that the Tribunal should exercise their discretion to revoke the licence (affirm the decision). Other submissions concerned alleged false and misleading information to the Tribunal being that no one other than himself and Mr Skaf used firearms at the property, he only shot quails ducks and kangaroos on the property and that he was in the dwelling when Police arrived.
16. Submissions were made post hearing about Mr Dadoun's associations with persons who had breached the Firearms Act and had significant criminal histories. The Commissioner expressed concern that Mr Dadoun could provide firearms to these individuals overtly or otherwise and that in addition to that being a criminal act, those individuals might use them in a criminal enterprise.
17. The Commissioner submitted that Mr Dadoun's evidence about the firearms use at the Rock Forest property showed a significant lack of insight into the responsibilities of being a responsible firearms owner and as a result he was now considered as not being fit and proper to hold the licence.

Consideration

1. The decision under review is based upon the notion that Mr Dadoun having access to firearms would be contrary to the public interest.
2. I note that Deputy President Hennessy observed in the case of Livadaru v Commissioner of Police [2008] NSWADT 160 that in reference to the public interest at [54]: In considering the public interest, regard must be had to the underlying principle of the Act. ….
3. As has been previously observed, the underlying principle of the Act concerns public safety.
4. In respect of the public interest I note that such matters include public protection, public safety and public confidence in the administration of a licensing system. The Firearms Act 1996 identifies a purpose to deal with public safety at s-3 (1) (a) of the Act.
5. Section 3 of the Firearms Act 1996 provides: 3 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
6. The Appeal Panel of the ADT in the case of Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16 discussed how the Tribunal should approach matters of public interest in licensing regime reviews. 28. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 [at 33] the 'public interest' is: . . . 33. 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 this case the public interest case was a very strong one. The public would, we believe, be quite concerned that a man with a serious history of violence, including violence using weapons, for which he served several years' imprisonment might now be entrusted with a pistol.
7. The crucial issue in these proceedings concerning whether Mr Dadoun should continue to hold a firearms licence, relates to the public interest. In that regard significant concern is raised around Mr Dadoun's actions in using firearms and allowing them to be unsecured in the presence of unauthorised persons. Additionally there is some evidence of firearms use by unauthorised persons when the evidence (including the video evidence) is looked at as a whole.
8. The Commissioner's case also rested on a submission that Mr Dadoun had failed to take all necessary and reasonable precautions to ensure that the firearms under his responsibility would neither be used inappropriately or come into the possession of persons not authorised to access them.
9. As noted above, the Tribunal at the joint hearing viewed the Police Body Worn footage of their attendance at the Rock Forest property on 8 January 2023.
10. The evidence adduced from that footage mainly identifies potential breaches of the firearms licencing regime in respect of various firearms. The Commissioner submitted that this was significant.
11. I appreciate the concerns that the Commissioner holds and I believe that such concerns are not addressed by Mr Dadoun's evidence. In my view when the body worn video is examined carefully there is evidence of a significant number of breaches of the firearms licencing regime for which Mr Dadoun, as one of two present licenced firearms users, was legally responsible for and a requirement that he was obligated to uphold.
12. It was under this authority that the firearms were lent to Mr Dadoun and as such he was responsible (with Mr Skaf) for all matters concerning their use and storage whilst in his / their possession.
13. When the video evidence is viewed in its entirety it is clear that all persons in the two shooting parties on the day that Police attended, were in the immediate presence of firearms and were present either with loose ammunition in a vehicle and a room and or in at least one instance, were carrying ammunition on their person.
14. The footage of the downstairs room in my view shows unsecured firearms and ammunition in an area where persons (unknown) were sleeping and other persons could easily have access to. The overall impression is that the shooting party were caught unawares by Police attending and the situation concerning firearms and ammunition in the large open plan downstairs room and the ammunition strew on the floor of at least one of the vehicles and in the pockets of an unlicenced person, paints a picture of disarray and disorganisation.
15. In my view notwithstanding Mr Dadoun's submissions, the orderly management of firearms in and out of approved safe storage for transportation and use is a significant component of the firearms regime and goes to ensuring public safety. If there was no approved storage receptacle then the firearms should have remained in the presence of those in authority.
16. It is clear to me that this problem was related and to an extent magnified by the fact that there were 10 persons, eight of whom were unlicenced and the two that were licenced were responsible to a total of 14 firearms. Ensuring compliance in such circumstances whereby eight other individuals were around in such circumstances would have been difficult, if such compliance was ever sought. In observing this I note that Mr Dadoun maintained in his evidence that no unlicenced persons had access to firearms.
17. In respect of the genuine reason counts raised by the Commissioner, I believe that these matters are significantly cured by the permission to shoot authorities tendered in the Internal Review process and also in evidence before the Tribunal. I note that there were a number of regulatory failings associated with the genuine reason grounds. These in my view are not the significant matters.
18. The significant matters concern the actions and activities which occurred at Rock Forest which illustrates that Mr Dadoun is not capable of exercising continuous safe control over firearms at all times. For these reasons his breaches and actions are significant, whether some aspects were dismissed under the criminal standard at Court or not.
19. Whilst with that acquittal Mr Dadoun has no criminal history whatsoever, his traffic record is not perfect noting his limited years licenced, but does not demonstrate a flagrant disregard for the law sufficient to make me conclude that he could not be entrusted to maintain safe and continuous control over firearms in his possession at all times by reference to the licencing regime. The issue however concerns his track record at the Rock Forest property as illustrated by the evidence.
20. Having considered the evidence very closely I am not prepared to engage further in a debate as to whether Mr Dadoun was at the residence or not when Police arrived at the house. Even if he was not in the dwelling there are a number of Tribunal cases that show that having a line of sight to the dwelling is sufficient to meet the criteria that a dwelling was not 'unattended' for the purposes of the licencing regime requiring different elements for attended and unattended dwellings where firearms are stored.
21. On one assessment Mr Dadoun's evidence could be interpreted as attempting to make the firearms 'compliant' before Police inspected them.
22. Whilst not the main basis for the decision for review before the Tribunal, the notion of 'fit and proper' is often referred to in the lead case of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and the various ADT and Tribunal cases that have relied on Bond. The case of Bond provides the general principle that fitness and propriety are not to be narrowly construed or confined and can extend to any aspect of fitness and propriety that is relevant to the public interest.
23. This position is consistent with the idea of applying the concepts in a broad manner to the available evidence and having regard to the objects and purpose of the regime. In this instance the regime is designed to protect the public as a primary consideration and for this reason under the Firearm Act access to and use of firearms is not a right but a privilege.
24. In Artridge v Commissioner of Police NSW Police Force [2021] NSWCATAD 188, as Senior Member Ransome observed at [21] - [27] the public interest question is the main task facing the Tribunal in this type of review. The public interest 21. What is meant by 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 Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation." 22. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [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." 23. In Cusumano v Commissioner of Police [2001] NSWADT 50 at [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." 24. Importantly, s 3 of the 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 [27-28] Deputy President Hennessy 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." 25. That case dealt with 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 [130] - [134]. 26. 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 [64] - [66]; Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315 at [62]- [64]. The question is whether there is in all the circumstances a real and appreciable risk to the public: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 at [74]; Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124 at [58]. 27. It has also been stated that the public interest requires that all licensees be aware of, and comply with, the legislative requirements: Cook v Commissioner of Police [2003] NSWADT 30 at [34]. Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police [2005] NSWADT 75 at [25].
25. It has been well established that the legislation and precedents indicate that the discretion is to be applied consistent with the purpose of the Firearms Act, one of which is to ensure public safety in accordance with s 3 (1) (a) of that Act. However it is conceded that the purpose of the licencing regime is protective not punitive and all endeavours are directed towards maintaining and enhancing public safety.
26. In balancing those risk matters with the objects and the overall protective purpose of public safety from s 3 of the Firearms Act I am satisfied that on the evidence and material before the Tribunal, it would be in the public interest to maintain the revocation of the licence.
27. In my view the totality of the evidence establishes that the major concerns of the Commissioner and the Tribunal relate to the evidence that indicates a failure to maintain safe continuous control of firearms. Logically a shooting party of 10 persons where only two were licenced firearms users, responsible for in excess of a dozen long arm firearms was fraught with risk. That situation arises irrespective of the antecedents of some of the other attendees.
28. The situation creates a level of danger and risk on the uncontroversial evidence before the Tribunal. There is prima facie evidence of a number of breaches which go to public safety, in addition to other breaches which are more of a technical nature, concerning the types of fauna that were targeted by the shooting party. The safety breaches remain my main concern.
29. Mr Dadoun and Mr Skaf had created an unsafe environment whether intentionally or otherwise in allowing so many unregistered persons to have access to firearms (including ammunition).
30. I share the Police concerns that on the available evidence to the civil standard it appears likely that some illegal activity occurred in such a setting. The presence of a minor and the presence of ammunition rounds on an unlicenced person or person without a permit is a significant concern with the later being unlawful activity. Mr Dadoun's associations with certain individuals and either with knowledge or otherwise of those associates antecedents, he allowed them to be present at the property and have some access to firearms creates some risk that is both real and appreciable.
31. I agree with the Commissioner's submission that this matter constitutes a matter which falls within the public interest consideration as set out in Addison v Commissioner of Police NSW Police Force [2019] NSWCATYAD 99 at [20] - [21]. 20. I agree with the following discussion of the public interest in Tolley v Commissioner of Police, New South Wales Police Service [2006] NSWADT 149 at [31] that 'given the breadth of the Commissioner's discretion and the overriding object of public safety, there is no basis for differentiating between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence": 21. In both Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43 and Dalziell v Commissioner of Police, NSW Police Force [2018] NSWCATAD 79, it was held that where an applicant voluntarily associated with persons having significant criminal histories or involvement with criminal organisations and activities, that association may create the danger to public safety with which the Commissioner is concerned and that person may therefore be not fit, in the public interest, to be in possession of a firearm. In those circumstances, a firearms prohibition order may be justified.
32. In noting that the underlying principles and objects of the Firearms Act are that firearms possession and use is a privilege conditional on the overriding need to ensure public safety, and noting the evidence adduced in the proceedings and the findings already made about that evidence, I find that it is not in the public interest for Mr Dadoun to hold a firearms licence at this time.
33. The appropriate approach would be that the Tribunal affirms the decision.

Conclusion

1. Because of the findings that I have made, it is appropriate to affirm the decision of the Commissioner in revoking Mr Dadoun's Category AB Licence on 15 November 2023 and the upholding of that decision on 9 January 2024.
2. As this is an administrative review matter, it therefore follows that the correct and preferable decision is to affirm the decision of the respondent.
3. I therefore make the following order:

Orders 1. The decision to revoke the Applicant's Category AB Firearms Licence 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: 26 September 2024