Easey v Commissioner of Police

NCAT Administrative and Equal Opportunity|2020-11-30

The Applicant was known to Police

The Respondent invited attention to the Police records with respect to the Applicant. The Applicant admitted that in 2010 he had stolen a wallet but, it appears, the charge was dismissed.
In 2008, now some 12 years ago, the Applicant was pulled over by Police when he was on a shooting trip to hunt feral pigs. He had up to 5 hunting dogs. He said he used to enjoy this form of hunting when he was younger. There was an occasion in 2011 in which his vehicle was allegedly used with hunting dogs, but the Applicant denied any involvement. In 2011 there was another occasion when there was pig hunting on a property without the owner's consent. The Applicant admitted being present but said that they had been hunting at the property next door, as he had done for many years. He had taken some mates and they had created a disturbance behind his back, and the wheel had come off his car and the car became entangled in the property's wire. While trying to disentangle the car the dogs had got out and chased pigs, which they killed. The Applicant reportedly told Police he had fallen asleep and run off the road. The Applicant's story was considered to be untrue, especially as he allegedly 'bragged' on Facebook about the incident 'while pigging', but the Applicant denied that he had done this.
In 2012 there was another allegation that the Applicant had been illegally hunting in a national park with dogs. The Applicant said they were on a main road travelling through the park to get to a property in order to hunt there. There was, however, no record in the COPS report of this explanation.
According to Police, in September 2016 the Applicant was involved in an altercation at a hotel when the Applicant allegedly punched another person. Nothing appears to have come of the complaint. The Applicant said he had no recollection of the event at all.
The conclusion to be drawn, in my view, is that the Applicant appears to have come to Police attention on several occasions before the incident that gave rise to the revocation. None appears to have resulted in charges. Very little weight can be attached to these reports, which, in any event are now somewhat dated.

The Applicant as a primary producer

The Applicant gave evidence that, in addition to his job at the flour mill, he is also a primary producer, and provided a copy of an application for registration concession dated 21 September 2020. He has a feedlot where he runs cattle and fattens them for sale on a property he leases from his foster-father. He attends to the cattle each morning and night before and after his job at the flour mill. At the peak of the drought, he said, there was no available natural feed and he would have to buy in hay and grain for the ready-to-sell cattle. Those cattle were in a pen and he put the food in a bin once or twice a week inside the pen. Just as his animals had no natural food, so also did feral pigs from the adjacent national park. When he would purchase feed for his cattle, the feral pigs would come into the pen and eat the food; he estimated a pig can eat up to 3% of its body weight per day. He said he was losing $150 - $250 a week.
He had tried to keep the pigs out of the pen but they got through or under the wire fencing, which then needed to be repaired. More sturdy fencing was very expensive. He had tried elevating the feed bin but the pigs had knocked it over.
He had taken up the feral pig problem with National Parks and Wildlife (NPWS) because the feral pigs came onto his property from the national park. He said he was told to use poison, but it was impractical for him to risk poisoning his other cattle that were grazing in the outer paddocks. NPWS was not prepared to lay poison in the adjacent national park.
He also thought the presence of feral pigs close to the main road, which is adjacent to their property, attracts illegal hunters. His father, from whom he leases the property, has experienced damage to his fences and the loss of a cow and calf. As a result, his father refuses to have hunters on his property, and presumably relies on the Applicant.
He also wrote that he is responsible for his cattle, and if necessary, must put down sick animals.
No member of his close family has a firearms licence, nor are they willing to obtain one.
For these reasons, he submitted, he requires a firearms licence.

The Applicant's role harvesting kangaroos

One of the Applicant's other jobs is kangaroo harvesting, which he has done, on and off since he was 18. He can earn up to $500 a week, but the work is unreliable because the market is variable, such as when the Russian market for kangaroo meat inexplicably collapsed, and the role can be hampered by poor weather. He does this work, unpaid, as a service to up to 25 farmers in the area. He takes the carcasses to a central chiller for sale. He can manage only 42 at a time, as he cannot transport more. He was asked about his failure to inform Police that he was doing this as a business, rather than vermin control as was his stated 'genuine reason' for having a firearms licence. He said that, for farmers, kangaroos are vermin.

The Applicant's circumstances

The Applicant conceded that between the ages of 21 and 25 he was in trouble with the law from time to time. By my calculation, as the Applicant is now aged 32, this was between about 2009 and 2013. This is consistent with the Police COPS reports. The Applicant attributes his change to meeting his wife in 2013. He is a family man, now with 3 children. His intention is to purchase his own farm.
He took care of his parents' foster child for a period in 2019. In order to do so, he was required to obtain a working with children clearance. The Applicant provided a copy of his clearance, which, he observed, was issued after the date of his conviction.

The Applicant's references

One of the Applicant's referees was his foster father, who wrote that the Applicant had run the feedlot for the last 4 years, and that in the last couple of years had displayed a remarkable turnaround in his work, family and acceptance of others. Glen Miller, a co-worker, considered the events that gave rise to the revocation to be out of character, as did Gregory Quayle. Joshua Landers, the publican of another hotel wrote, amongst other things, of the Applicant having recently being assaulted in an unprovoked attack at his hotel and that he did not retaliate.
In contrast, the Respondent also relied on a file note of a discussion between the Applicant and a staff member at the Firearms Registry on 13 December 2018 regarding the suspension of his firearms licence. The Applicant was reportedly "quite aggressive" and was said to have sworn at the staff member; the staff member was not called to give evidence. Even if the Applicant behaved as was alleged, I do not accept that it raises serious concerns about his level of self-control and about his continued suitability to hold a firearms licence, as was submitted by the Respondent.

The Tribunal's discretion and public interest considerations

Had the Applicant been applying for a firearms licence following his conviction it would have been mandatory that such an application be refused: s 11(5)(b) of the Act and cl 5(1)(i)(i) of the Regulation. However, the power to revoke a licence following a conviction is not mandatory: s 24(2)(a) of the Act. In Kalinic v Commissioner of Police [2006] NSWADT 227 (Kalinic) JM Montgomery, after considering Maloney v Commissioner of Police, NSW Police (22 November 2004 unreported) (Maloney) and Botros v Commissioner of Police, NSW Police Service [2000] NSWADT 6, said at [23], that it would be anomalous if a conviction, after a licence has been granted, is treated totally differently to a conviction before a licence application. See also Mills v Commissioner of Police, NSW Police Force [2014] NSWCATAD 38 at [42]. In general, I agree with this approach.
In the context of a revocation under s 24(2)(a) of the Act in Maloney JM Higgins considered that it only in special or exceptional circumstances should the discretion not to revoke the licence be exercised. I turned then to consider if the Applicant's circumstances could be said to be special or exceptional.
I accept that the Applicant has been a firearms licence holder for about 13 years. While he has come to the attention of Police during that time, no charges have resulted, other than the matter that gave rise to the revocation. As to that incident, I accept that it was out of character, given the evidence is that the Applicant has turned his life around in the last few years. To put the incident in context, the Applicant had experienced several agonising weeks concerned that if he were made redundant, how would he be able to support his growing family; the foreshadowed numbers of redundancies alone would have weighed against his retention. He was fortunate though and participated in an emotional and alcohol-fuelled farewell for his not-so-fortunate colleagues, which continued on to the hotel. The Applicant was intoxicated and was asked to leave. Then, he was subjected to abuse, including racial slurs. He accepts that it was inappropriate to go back into the hotel and take out his anger on one or more patrons. By all accounts his conduct was uncharacteristic. The Magistrate clearly did not consider the offending to be at the higher end of the scale; the Applicant was fined, given an 18 month good behaviour bond and required to attend counselling, educational development, drug or alcohol rehabilitation under supervision. His unchallenged evidence was that he was told by the probation officer after 3 appointments that he was no longer obliged to attend and that he was not required to attend drug of alcohol counselling at all because it had been an isolated incident.
In Parisi v Commissioner of Police, NSW Police Force [2018] NSWCATAD 155 I observed that I agreed with the approach in Kalinic, where the applicant's submission that the "special circumstances" were "protecting the general fauna, the wildlife" and that he had an "obligation to keep feral animals down". The Tribunal there rejected that these amounted to special circumstances. The circumstances of this matter are different. The Applicant gave clear evidence of the disruption to his farming activities caused by feral pigs; his concern was not of a general obligation to keep the feral pig population under control, but to reduce the impact on his livelihood. He had explored other alternatives such as poisoning and having NPWS poison the adjacent land, elevating the feed bin, and sturdier fencing - all without success. The Respondent submitted that in circumstances of revocation where a future application must be refused on mandatory grounds due to a prescribed offence, that reasons such as the need to control feral animals, deal with snakes and destroy stock did not amount to 'special and exceptional' circumstances which would justify the Tribunal in allowing the licensee to continue to hold a licence and referred me to Wilson v The Commissioner of Police (unreported, NSWADT, Judge Maloney, 4 March 2011) ex tempore. I was unable to locate this decision, but, in any event, I think the Applicant's circumstances in the present matter go beyond the basic need desire to control feral animals.
For these reasons I consider that the discretion in s 24(2)(a) of the Act should be exercised in the Applicant's favour.
In considering whether an applicant should retain a firearms licence, the Tribunal has held that where there has been, or is, a possibility of a threat to the public's safety, and the public's right to safety must outweigh an individual's privilege to possess and use a firearm : Lee v Commissioner of Police [2020] NSWCATAD 144 at [94].
I therefore turned to consider the public interest test.

The public interest

The expression "public interest" is not defined in s 11(7) or elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives 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 choosing 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].
The Applicant's interest in holding a firearms licence is, primarily to control the feral pigs which invade his property and eat the expensive feed he purchases for his cattle. Private interests, however, are not the only matters taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. Consideration of public interest allows for matters going beyond the applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]. The concept includes standards acknowledged to be for 'the good order of society and for the well-being of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63.
Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Although Ward was a case on the "fit and proper person" test, the formulation has been held to also apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23] and Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130]. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, 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].
The principle in Ward is to the effect that the licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. Since Ward, Hennessy DP has cautioned against applying that language in a mechanistic way: see AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].
The underlying principles stated in s 3(1) of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 [at 23].
Following the approach of JM Frost in AMJ v Commissioner of Police NSW Police Force [2012] NSWADT 228 I consider there to be several factors that weigh in the Applicant's favour.
Firstly, although the Applicant was charged with offences, they did not involve a firearm. The penalty was at the low end of the range, and the Applicant's probation officer clearly felt that the Applicant required no supervision after 3 visits.
Secondly, the Applicant has never been charged with a firearms offence, despite holding a firearms licence for about 13 years. There was no evidence that his holding a licence has ever created any danger.
Thirdly, while the Applicant has come to Police attention over the years, no charges have been laid other than the matter that gave rise to the revocation. There was no evidence of association with criminals.
Fourthly, the Applicant has an unremarkable traffic history. That history does not indicate a current ongoing disregard for licensing law generally, even though the traffic laws and the firearms regulatory scheme are both aimed at ensuring public safety. I do not consider there is a current disregard for the firearms regulatory scheme.
Fifthly, the Applicant has been engaging in what is essentially a community service by shooting kangaroos. I accept that to farmers, kangaroos are regarded as vermin.

Conclusion as to the public interest test

The underlying principles of the Act stated in s 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. In all the circumstances, I am reasonably satisfied, based on public interest grounds, that there is no reason for the Applicant not to hold the firearms licence.
Having come to that view though, I reiterate that, the Applicant's licence expires on 28 June 2022; if he applies for a fresh licence the Respondent will have no option but to refuse that application because of the Applicant's conviction: s 11(5)(b) of the Act. In presently exercising the Tribunal's discretion in his favour the Applicant will have an opportunity to address the current position with respect to the feral pigs. He may, for example, decide, as a primary producer, to invest in better fencing; he may investigate a more sophisticated feed bin; he may engage in further negotiations with NPWS; he may persuade his father to permit other licensed shooters onto the property; he may persuade another family member to apply for a firearms licence. It is open to him to explore these and other options, before his firearms licence expires on 28 June 2022, after which it cannot, as a matter of law, be renewed until 10 years after his conviction.

DECISION 1. The decision under review is set aside.

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: 18 December 2020

Evidence

In addition to the s 58 documents, I had before me submissions by both parties. The Applicant provided several references. The Applicant gave evidence and was cross examined.
Section 63 of the Administrative Decisions Review Act 1997 provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the [Commissioner] is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]- [34]. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act.

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