El-Zaghir v Commissioner of Police, NSW Police Force

Legal Principles

1. The Act establishes a legislative framework to regulate the possession, use, acquisition and supply of firearms. Section 75(1)(a) of the Act confers jurisdiction on the Tribunal to hear and determine the Application. Section 63 of the ADR Act requires the Tribunal to make the correct and preferable decision on the basis of the evidence available at the time, together with any additional or later material: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77.
2. Section 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety: (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 … (2) The objects of this Act are as follows: … (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, …
3. The power to grant an application for a firearms licence under s 11 of the Act is "tightly constrained" and in particular, significant emphasis is placed upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant: Kocic v Commissioner of Police, NSW Police Force (2014) 88 NSWLR 159 at [1]. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences: Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7 at [117]. Section 11 provides general restrictions on the issuing of a firearms licence: (1) The Commissioner may issue a licence in respect of an application, or refuse any such application. … (3) 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; and ... (c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant ... (4) Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of- (a)the applicant's way of living or domestic circumstances, or … (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. (8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence.
4. Section 12(1) of the Act provides further restriction on the grant of a firearms licence: 1) The Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm. … (4) Subject to this Act, an applicant for a licence has a genuine reason for possessing or using a firearm if the applicant- (a) states that he or she intends to possess or use the firearm for any one or more of the reasons set out in the Table to this section, and (b) is able to produce evidence to the Commissioner that he or she satisfies the requirements specified in respect of any such reason.
5. Section 7A of the Act makes it an offence to possess or use firearms if a licence holder contravenes a condition of the licence: 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
6. "Sport/target shooting" is a genuine reason specified in s 12 of the Act. The table in s.12 provides that to rely on this genuine reason, an Applicant must: be a current member of a shooting club approved by the Commissioner in accordance with the regulations, and which conducts competitions or activities requiring the use of the firearm for which the licence is sought.
7. "Recreational hunting/ vermin control" is another genuine reason specified in s 12 of the Act. The table in s 12 provides that to rely on this genuine reason, an Applicant must: (a) be the owner or occupier of rural land, or (b) produce proof of permission given by the owner or occupier of rural land, or by an officer or employee of the National Parks and Wildlife Service, the Department of Industry or other authority prescribed by the regulations, to shoot on rural land, or … (c) be a current member of a hunting club approved by the Commissioner in accordance with the regulations
8. Section 24(2) of the Act states: (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, or (iii) contravenes any condition of the licence, 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 (c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or (d) for any other reason prescribed by the regulations.
9. Clause 20 of the Regulation provides: 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.
10. Clause 29 of the Regulation provides that: 29 Sport/target shooting A licence that is issued for the genuine reason of sport/target shooting is subject to the following conditions (in addition to any other conditions to which the licence is subject) - (a) the licensee must comply with any applicable requirements of Part 10 (Participation requirements for club members), (b) the licence does not authorise the use of a firearm except at a shooting range approved under Part 8 or under the authority conferred by clause 33 (Licences and permits extend to authorise sighting in, patterning and related activities).
11. Clauses 105 and 107 in Part 10 of the Regulation provide that: Part 10 Participation requirements for club members 105 Definitions In this Part - approved club for a particular category of licence means an approved shooting club (including an approved pistol club), approved hunting club or approved collectors' society or club of which the holder of a licence of that category is required to be a member under this Part. competitive shooting match means a shooting activity in which scores are kept and results recorded. compliance period for an approved club means each consecutive 12-month period that starts on the day of the year that the club has determined to be the start of its compliance period for the purposes of participation by club members. participation in a shooting activity includes, in the case of a competitive shooting match, officiating at such a match. shooting activity of an approved club means the following - (a) a shooting activity that is conducted by the club at the club's shooting range, including a competitive shooting match, shooting training and target practice at the club's shooting range, (b) firearms safety training conducted by the club at the club's shooting range, (c) a competitive shooting match held at a shooting range other than the club's shooting range where the match is endorsed by the club (including such a match that is conducted outside NSW or outside Australia). ... 107 Participation requirements for sport/target shooters (other than pistol shooters) The holder of a licence issued for the genuine reason of sport/target shooting (not being a category H licence) must be a member of at least one approved shooting club (other than a pistol club) and must, during each compliance period for such a club of which the person is a member, participate in not less than 4 shooting activities of an approved shooting club (other than a pistol club) whether or not of a club of which the person is a member.
12. Clause 30 of the Regulation provides for the establishment of recreational hunting/vermin control as a genuine reason for people who are not members of approved hunting clubs: 30 RECREATIONAL HUNTING/VERMIN CONTROL--PERSONS WHO ARE NOT MEMBERS OF APPROVED HUNTING CLUBS (1) If an applicant for a licence (not being a member of an approved hunting club) proposes to establish recreational hunting/vermin control as a genuine reason for being issued with the licence and, in order to do so, is required to produce proof of permission to shoot on rural land, the applicant must produce with the application as evidence of the permission-- (a) written permission to shoot on the land, or (b) a statutory declaration verifying that permission to shoot on the land has been given. (2) During the term of a licence issued to an applicant referred to in this clause, the licensee may lawfully possess or use a firearm (as authorised by the licence) on land other than the land specified in respect of the application if the licensee has the permission of the owner or occupier of that other land (or of an officer of the agency concerned) to shoot on that other land. (3) Any permission to shoot on rural land (including any statutory declaration verifying that permission has been given) must describe the land to which the permission relates and the type of game to be shot. (4) If a licensee has permission to shoot on rural land, the licensee must, on demand made at any time by a police officer or an authorised officer for that land-- (a) produce for inspection by the police officer or authorised officer, as evidence of the permission, written permission or a statutory declaration by the person verifying that permission has been given, or (b) if it is not in the licensee's immediate possession--produce that evidence as soon as practicable (but not more than 48 hours) after the demand is made to the officer who made the demand or to another police officer or authorised officer nominated by the officer who made the demand. Maximum penalty (subclause (4)): 20 penalty units. (5) A person commits an offence under subclause (4) only if the police officer or authorised officer, when making the demand, explains to the person that failure to comply with the demand is an offence. (6) The Commissioner may approve alternative means for producing evidence of permission to shoot on rural land for the purposes of this clause and producing evidence by any such approved alternative means satisfies a requirement of this clause for the production of that evidence. (7) In this clause-- "authorised officer" , in relation to rural land on which permission to shoot has been given, means an officer of the relevant agency (as referred to in the genuine reason of recreational hunting/vermin control) that has the care, control or management of the land.
13. Clause 32 of the Regulation states: 32 MEMBERS OF APPROVED HUNTING CLUBS--RESTRICTION ON AUTHORITY CONFERRED BY LICENCE (1) If a licensee who is a member of an approved hunting club has established recreational hunting/vermin control as a genuine reason for being issued with the licence, the licence authorises the member to possess and use a firearm-- (a) to participate in shooting activities conducted by the approved hunting club, but only on rural land on which the club has permission to shoot given by the owner or occupier of the land or by an authorised officer, or (b) to participate in shooting activities other than those conducted by the approved hunting club, but only on rural land on which the licensee has permission to shoot given by the owner or occupier of the land or by an authorised officer. (2) If an approved hunting club has permission under subclause (1) (a) for its members to shoot on rural land, the member of the club who is for the time being responsible for the shooting activities conducted by the club on that land must, on demand made at any time by a police officer or authorised officer for that land, produce to the officer who made the demand or to another police officer or authorised officer nominated by the officer as soon as practicable (but not more than 48 hours) after the demand is made, as evidence of the permission, written permission or a statutory declaration by the person verifying that permission has been given. : Maximum penalty--20 penalty units. (3) If a licensee has been given permission under subclause (1) (b) to shoot on rural land, the licensee must, on demand made at any time by a police officer or authorised officer for that land-- (a) produce for inspection by the police officer or authorised officer, as evidence of the permission, written permission or a statutory declaration by the person verifying that permission has been given, or (b) if it is not in the licensee's immediate possession--produce that evidence as soon as practicable (but not more than 48 hours) after the demand is made to the officer who made the demand or to another police officer or authorised officer nominated by the officer who made the demand. : Maximum penalty--20 penalty units. (4) A person commits an offence under subclause (2) or (3) only if the police officer or authorised officer, when making the demand, explains to the person that failure to comply with the demand is an offence. (5) Any permission to shoot on rural land (including any statutory declaration verifying that permission has been given) must describe the land to which the permission relates and the type of game to be shot. (6) The Commissioner may approve alternative means for producing evidence of permission to shoot on rural land for the purposes of this clause and producing evidence by any such approved alternative means satisfies a requirement of this clause for the production of that evidence. (7) In this clause-- "authorised officer" , in relation to rural land on which permission has been given to shoot, means an officer of the relevant agency (as referred to in the genuine reason of recreational hunting/vermin control) that has the care, control or management of that land.
14. Clause 31 of the Regulation provides that a licence that is issued for the genuine reason of recreational hunting/vermin control is subject to the condition that the licensee must comply with any applicable requirements of Part 10 (Participation requirements for club members).
15. Within Part 10 of the Regulation, cl 108 of the Regulation provides: 108 Participation requirements for member of approved hunting club (1) The holder of a licence issued for the genuine reason of recreational hunting/vermin control to a member of an approved hunting club must be a member of at least one approved hunting club and must, during each compliance period for such a club of which the person is a member, participate in no less than 2 hunting club events. (2) This clause applies only where membership of an approved hunting club is the sole ground on which the licensee has established the genuine reason of recreational hunting/vermin control. (3) In this clause - hunting club event means any event approved by any approved hunting club (whether or not a club of which the licensee is a member) involving hunting, shooting or firearms safety training.
16. Clause 15(1) of the Regulation provides that, if a licensee's genuine reason for possessing or using a firearm under the authority of a licence can no longer be established by the licensee, the licensee must, within 14 days after becoming aware that the licensee has ceased to have that genuine reason, notify the Commissioner of that fact in writing or in such other manner as may be approved. Failure to do so is an offence with a maximum penalty of 50 penalty units.
17. Clause 16(1)(a) of the Regulation requires the holder of a licence to notify the Commissioner, in writing or in such other manner as may be approved, of any change in a particular stated in a licence, within 14 days after the change occurs. Section 16(2) provides that the clause "extends to a change in the genuine reason for which the person was issued with a licence (including the removal of a genuine reason or the inclusion of an additional genuine reason)" (emphasis added). Failure to do so is an offence, with a maximum penalty of 20 penalty units.

Fit and proper person

1. The High Court dealt with the expression "fit and proper person" in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11; 64 ALJR 462; 21 ALD 1. In that matter the Applicant was required to refuse a licence if it was not satisfied that the Applicant or the holder of a licence was a "fit and proper person". Toohey and Gaudron JJ stated (at 380) that: "The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper "cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. "
2. In the same case, Mason CJ stated at [63] that: "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."
3. In Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at paragraph [9] the High Court defined the concept of fitness and propriety as having three components - "honesty, knowledge and ability."
4. In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said of the term "fit and proper ": "In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails."
5. In FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88, Judicial Member Molony said at [45]: Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake.
6. The Applicant's fitness and propriety must be determined in the light of the role he is to undertake. The Tribunal must consider the evidence before it, taking into account and weighing up matters both contrary to and in favour of the Applicant.
7. In Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 Senior Member Higgins dealt with an application in relation to firearms licensing under the Act. At paragraph [22] she stated that the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety. "22 In my opinion, the term "fit and proper person" in s. 11(3)(a) of the Act should also be given a wide meaning. As stated by Mason CJ the breadth and content of the concept must be derived from the Act and the purposes of the Act. In this case, Parliament has expressly stated what the underlying principles of the Act are. This includes the principle that the possession of a firearm is a privilege and that it is conditional on the overriding need to ensure public safety (see s. 3(1)(a)). Accordingly, the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety. In my opinion Parliament has made this clear with the additional words in s. 11(3)(a) of "... and can be trusted to have possession of firearms without danger to public safety and the peace." That is, 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."

Public Interest

1. The expression "public interest" is not defined in the Act, but has been discussed in a number of Tribunal decisions. 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."
2. The public interest encompasses broader considerations beyond public safety. It is an inherently broad concept and is designed to give the broader interests of the community priority over private interests. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, it was 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.
3. In Director of Public Prosecutions v Smith (1991) 1 VR 63 (Smith) the Court observed: The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged 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 from the interest of an individual or individuals.
4. A discretion to make a decision 'in the public interest' is not confined except by the scope and purposes of the legislation itself: DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15], referring to O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson, Gaudron JJ. The discretion must be exercised to promote the objects of the firearms legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23].
5. As stated by the Administrative Decisions Tribunal in Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276: 'The Applicant's individual interest in retaining his Category AB Firearms Licence must be subordinate to the public interest in ensuring public safety.'
6. In an often-quoted passage, Hennessy DP in Ward v Commissioner of Police [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. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130].
7. Since then, Hennessy DP cautioned against applying that language in a mechanistic way, noting in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7] that: "The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests".
8. Other cases have pointed out that 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: see Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] - [66], Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32].
9. In determining whether the issue of a licence is contrary to the public interest, the Tribunal is entitled to take into account criminal conduct, whether or not that conduct has resulted in an individual being charged or convicted of criminal offences, or whether the particular offences charged have not been proven or have been dismissed: Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31 at [62] to [64]. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70 at [30].
10. In Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43, the ADT Appeal Panel said that the relevant factors to be considered by the Respondent in determining whether to exercise his discretion include matters of general public policy, which were in turn said to be informed by the principles and objectives of the Act.
11. 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]. The public interest requires that all licensees be aware of and comply with the legislative requirements: Vella v Commissioner of Police [2003] NSWADT 91 at [41].
12. The licensing regime is also concerned with "making decisions that are consistent with a need to reduce any risks to a minimum": Petas v Commissioner of Police, NSW Police [2013] NSWADT 137 at [36].

Genuine reason

1. The Applicant's application for a firearms licence in 2014 nominated her genuine reason for a firearms licence as "Sport/Target Shooting" and "Recreational Hunting/Vermin Control" and identified the Hellenic-Australian Hunting and Target Shooting Club Inc (Hellenic Club) as her principal club membership for Category A/B firearms.
2. From 3 June 2014 to 31 December 2014, the Applicant was a member of the Hellenic-Australian Club. The Applicant's membership of the Hellenic Club expired on 31 December 2014. On 18 May 2015 the Respondent wrote to the Applicant, seeking proof of her current club membership. No response was received.
3. From 9 November 2018 to 30 November 2019, and then from 17 November 2021 to 30 November 2022, the Applicant was a member of the Sporting Shooters Association of Australia (SSAA). During the two periods she was a member of the SSAA, the Applicant did not participate in any target shooting or hunting activities arranged by the SSAA. Nevertheless, the Applicant's renewal application in 2019 contained the declaration "I certify that I can satisfy the legislative requirements and produce evidence of my genuine reasons as specified within this application".
4. The Applicant stated for the first time in her request for internal review that she did not want a sport/target shooting licence and wished to remove that genuine reason from the licence. The Applicant's failure to notify the Respondent of this earlier supports a finding that the Applicant contravened cl 15(1) of the Regulation, by not notifying the Firearms Registry within 14 days when she no longer maintained the genuine reason of sports/target shooting for her firearms licence.
5. In her statement the Applicant said: Once I obtained my firearms licence I then fell pregnant with severe morning sickness for the whole nine months in which I did visit the hospital for. Once my son was born it was a challenge as he was my first born he was always crying and never slept, I wasn't able to go back to work in which I was a high income earner or even do anything social as it was to hard for me as I was the full time carer for him. Once he was about 1.5 years old he was diagnosed with stage 3 autism which explained a lot of why things were extremely hard. I had to take him to speech and occupational therapy weekly along with doctor appointments and also being pregnant with my second child and now have three children. At that point attending the shooting range was extremely difficult and once I did get a little help with my family looking after him, I would go and do recreational hunting on private lands only a couple of times a year which was a big break for me. Attached are pictures for some of my hunting trips & catches. I also have letters from the farmers confirming my attendance to their property for the purpose of hunting and I have received permission letters signed by farmers on the firearms registry permission forms. On my licence it stated reasons recreational hunting and target shooting I have fulfilled recreational hunting however wasn't able to attend the shooting range as much as I would have loved to.
6. Under cross examination the Applicant agreed to the following: 1. that she had breached cl 107 of the Regulation between 1 December 2019 and 16 November 2021 by not meeting the participation requirements of her licence; 2. that she hadn't informed registry from 1 January 2015 that she didn't have the genuine reason of sporting/ target shooting for her licence, and that she had therefore breached clause 15 of the Regulation as she no longer had that genuine reason; 3. that she breached clause 108 of the Regulation.
7. Clauses 107 and 108 of the Regulation prescribe the club membership participation requirements for licensees with the genuine reason of sport/target shooting and recreational hunting/vermin control, which are conditions of the Applicant's licence pursuant to cl 29 and 31 of the Regulation (see [12] to [26] above). The Applicant was required to participate in at least 4 target shooting attendances and 2 hunting attendances during each of the relevant compliance periods.
8. 'Compliance period' for an approved club means each consecutive 12-month period that starts on the day of the year that the club has determined to be the start of its compliance period for the purposes of participation by club members: cl 105 of the Regulation. The compliance period for the SSAA is 1 April to 31 March.
9. The SSAA records confirmed that the Applicant failed to comply with minimum attendance requirements for sport/target shooting and hunting in each of the compliance periods in which she held membership: 2017/2018, 2018/2019, 2019/2020, 2020/2021, 2021/2022, 2022/2023. In each of those compliance periods, the Applicant's attendance records included zero attendances for both target shooting and hunting.
10. On 29 August 2022, after the revocation of her licence, the Applicant provided two letters of authority dated 28 August 2022 to the Respondent demonstrating that she had been given permission by two landowners, Jarrod Edwards (Mr Edwards) and Younis Amood, to hunt or shoot vermin on their property. The Applicant also provided an undated and unsigned letter by a Ronald Stephen Cronin (Mr Cronin) of Millers Creek Station asserting that the Applicant "has been shooting safely here since 2014", and a signed but undated letter by Mr Edwards asserting that the Applicant "has been hunting on my property... since 2019".
11. The effect of clauses 30, 31 and 32 of the Regulation is that the Applicant could potentially comply with the conditions of her licence for the genuine reason of hunting/vermin control in the following circumstances: 1. As a member of a hunting club, hunting with that club on rural land (participation requirements apply); 2. As a member of a hunting club, hunting on rural land with the permission of the landowner; 3. If not a member of a hunting club, hunting on rural land with the permission of the landowner.
12. However, on the evidence before it, the Tribunal rejects any submission by the Applicant to the effect that she had complied with the requirements of her firearms licence by reason of permission from landowners to hunt on their property. The letters referred to above (at [48]) cannot retrospectively establish that the Applicant has fulfilled the conditions of her firearms licence with respect to the genuine reason of "hunting/vermin control". The letters of authority could only give the Applicant permission to shoot on property as at the date they are signed, from 28 August 2022, which is after the Applicant's licence had been revoked.
13. The assertions by Mr Edwards and Mr Cronin in their letters that the Applicant had been shooting or hunting on their properties, since 2019 and 2014 respectively, are not sufficient to establish that the Applicant, whilst on their properties, was in compliance with her regulatory obligations and the conditions of her licence. Clauses 30 and 32 of the Regulations require that any permission to hunt on rural land must describe the land to which the permission relates and the type of game to be shot. The written permission must be produced on demand to a police officer or other authorised officer. Clause 16 requires notice to be given to the Respondent in the event that there is a change in a particular of the licence, which would include the commencement and details of any landowner's permission to hunt on their property.
14. The Applicant's evidence included a statement that she "would go and do recreational hunting on private lands only a couple of times a year which was a big break for me" and under cross examination, the first time she had gone shooting on Mr Cronin's property was in January or February 2015, and on Mr Edwards' property in 2019. Even if that evidence is accepted, it does not establish compliance with clauses 30 or 32. Even if it did, the evidence demonstrates (and the Applicant agreed) that she had not informed the Firearms Registry that she had been given permission to shoot by either Mr Cronin or Mr Edwards, and thereby contravened cl 16 of the Regulation.
15. The Applicant's photographs, which are undated, do not support any of the Applicant's submissions regarding compliance with her firearms obligations. The only thing that the photographs are capable of demonstrating is that the Applicant has handled firearms in the past. The Tribunal places no weight on those photographs as a result.
16. Additionally, Mr Cronin's assertion that he gave the Applicant permission to shoot on his property from 2014 is inconsistent with the fact that when the Applicant applied for her licence in 2014, the Applicant did not nominate permission to shoot on his land as the basis for establishing her genuine reason of recreational hunting/vermin control. The Tribunal agrees with the Respondent's submission that if the Applicant did have permission from Mr Cronin in 2014 to shoot on his land, it would reasonably be expected that the Applicant would have relied on this in her licence application. The Tribunal therefore does not accept Mr Cronin's or the Applicant's evidence that she had permission to shoot on his land from 2014.
17. Even if the Applicant did have informal permission from landowners to shoot on their properties in any of the period between the granting of her licence in 2014 and its revocation in August 2022, the evidence demonstrates that contrary to Clauses 30 and 32 of the Regulation she did not obtain written permission as required, so would not be able to produce that permission on request. Nor did she notify the Respondent of this change in particulars as required by Clause 16 of the Regulation.
18. The Respondent submitted that the Applicant's evidence demonstrated she had committed multiple breaches of the Act and Regulation. The Tribunal agrees that the evidence and the Applicant's admissions support the following findings: 1. Contravention of cl 107 of the Regulation by: 1. Not being a member of an approved shooting club between 1 January 2015 and 8 November 2018; 2. Not being a member of an approved shooting club between 1 December 2019 and 16 November 2021; and 3. Not meeting shooting participation requirements while she was a member of the SSAA. 1. Contraventions of cl 108 of the Regulation by: 1. Not being a member of an approved hunting club between 1 January 2015 and 8 November 2018; 2. Not being a member of an approved hunting club between 1 December 2019 and 16 November 2021; and 3. Not meeting hunting participation requirements while she was a member of the SSAA. 1. Contraventions of cl 15 and cl 16 of the Regulation by failing to inform and notify the Respondent between 1 January 2015 and the revocation of her licence on 2 August 2022 that she: 1. no longer had sport/target shooting as a genuine reason to support her firearms licence; 1. Contravention of clause 16(1)(a) of the Regulation by failing to notify the Respondent within 14 days of the following changes to her particulars: 1. That she was relying on landowner permission to hunt on their properties rather than SSAA or Hellenic Club (or other club) membership; 2. That she had permission to shoot on landowner's properties (in compliance with Clauses 30 and 32 of the Regulation); or, failing that, 1. That she did not have evidence to support her genuine reason of hunting/vermin control.
19. As discussed above, the Applicant's licence was renewed in 2019 despite her failure to fulfil the licence conditions, because the Applicant had certified in her renewal application: "I certify that I can satisfy the legislative requirements and produce evidence of my genuine reasons as specified within this application. (For example, club membership to support Sport/Target shooting)."
20. As discussed in Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31 at [62] - [64], a licensee need not be convicted of any offence for a contravention to be found. In the case of Kassem v Commissioner of Police [2021] NSWCATAD 213, the Tribunal found at [24] that the applicant had contravened s7A(2)(b) of the Act by his failure to comply with the participation requirements of his licence, and that that conduct constituted an offence.
21. In these proceedings the Applicant has failed to comply with her membership and participation obligations over almost the entire duration that she held the licence, specifically from 1 January 2015 after her Hellenic Club membership expired to 22 August 2022 when her licence was revoked. Although she had membership of the SSAA for 2 years in that time - from 9 November 2018 to 10 November 2019, and from 17 November 2021 to 30 November 2022 - she did not fulfil any of the attendance requirements in those periods.
22. The Applicant has also thereby contravened s 7A of the Act on the basis that compliance with cl 107 and 108 of the Regulation are conditions of the Applicant's firearms licence, and the Applicant breached those conditions.
23. In Todorovski v Commissioner of Police [2019] NSWCATAD 192 at [130] the Tribunal observed that: …the admitted total disregard of the requirement over a period of five years in that case was a substantial dereliction that could not be overlooked. In those circumstances it cannot be in the public interest for the license to continue to hold the licence.
24. I accept that the Applicant's personal circumstances as expressed in her statement may have made the participation requirements difficult, but this does not excuse her non-compliance with her licence obligations, including the notification obligations in the Act and Regulation. As discussed in Kassem, a licence attracts responsibilities that are ongoing irrespective of one's personal circumstances.
25. Consistent with the reasoning in Kassem and Todorovski and as recently stated again in Wombey v Commissioner of Police, NSW Police Force [2023] NSWCATAD 150, the Applicant's contraventions of her licence conditions are not technical, but fundamental, as they are relevant to her genuine reasons for holding a category AB firearms licence. The Applicant's ongoing disregard for the legislative requirements in the context of the strict controls around firearms licencing is a substantial dereliction which cannot be overlooked.
26. When asked whether she understood the legal requirements imposed on licence holders by the Act and Regulation, the Applicant stated: I do understand them but I didn't comply with them… I understand all these I knew them when I first got my licence I just didn't do them… I think I'm fit and proper.
27. When asked why she thought she was a fit and proper person within the meaning of the Act and Regulation, the Applicant said words to the effect of: … I am a good person. I haven't been in trouble with the law. I love what I do with hunting, it means a lot to me. There's no reason for me not to be a good fit and proper person. I wish I did everything differently. I've learned a lot. It's something that I really love. I admit to not following the shooting club rules. There are things I can change. I won't do them again. There's nothing which stands out and says that I shouldn't have my licence. I've always been safe with them. The prime thing is that I love doing… hunting and I don't drink, I don't do anything which sabotages my licence.
28. The Applicant admitted under cross examination that she was aware of her obligations but just didn't comply with them. Her evidence indicated an attitude that she should be allowed to have a firearms licence unless she was "in trouble with the law", because she liked hunting, and that she considered her compliance with the regulatory scheme was optional. The only alternative is that the Applicant was unaware of her obligations under the Act and Regulation during the time that she held her licence, and remains so now. Neither option supports the Applicant in demonstrating that she is a fit and proper person within the meaning of the Act.
29. Fitness and propriety must be considered in the context of the Act's principles and objects, relevantly including that firearm possession and use is a "privilege that is conditional on the overriding need to ensure public safety", that "each person who possesses or uses a firearm under the authority of a licence proves a genuine reason for possessing or using the firearm", and "to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms". Requiring "honesty, knowledge and ability", in the context of ensuring public safety, a person could not be considered a fit and proper person to hold a firearms licence in circumstances where they were aware of their obligations but chose not to comply with them.
30. The Applicant has demonstrated that she is not a fit and proper person, either because of her flagrant disregard for her obligations under the Act, or because she does not possess the requisite knowledge of her obligations under the Act and Regulation and is not cognisant of the significance of non compliance, or because she is unable to comply with the obligations due to her personal circumstances. In all the circumstances, the Tribunal finds that the Applicant is not a fit and proper person to hold a firearms licence pursuant to s 24(2)(c) of the Act.
31. The public interest requires that all licensees be aware of, and comply with, the legislative requirements: see Vella v Commissioner of Police [2003] NSWADT 91 at [41]; Cook v Commissioner of Police, New South Wales Police Service [2003] NSWADT 30 at [34]; Bottomley v Commissioner of Police [2005] NSWADT 211 at [20]. For the same reasons that the Tribunal has found the Applicant is not a fit and proper person to hold a firearms licence, the Tribunal finds that it would be contrary to the public interest for the Applicant to continue to hold a licence pursuant to s 24(2)(d) of the Act and cl 20 of the Regulation.
32. The Respondent relied on evidence of two additional matters to demonstrate that that it would not be in the public interest for the Applicant to continue to hold a licence: 1. the Applicant's relationship with her ex-partner, which the Respondent characterised as one being subject to domestic violence, which created risk to public safety posed by her living situation; and 2. the Applicant's association with various individuals with significant criminal histories.
33. On 21 September 2021 the Applicant telephoned Police and requested assistance, claiming that "I've got the father of my kids attacking me". LSC Marsh attended the Applicant's residence shortly after and investigated. LSC Marsh claims that the Applicant was uncooperative, in that she declined to identify the perpetrator, declined to provide his telephone number or other contact details, and declined to provide Police with details of her children. The Applicant claimed that she was not uncooperative, but did not cross examine LSC Marsh. In the circumstances the Tribunal accepts the account in the COPS records to the effect that the Applicant was uncooperative with the Respondent's investigation.
34. LSC Marsh is has extensive experience dealing with domestic violence offences. He opined that the Applicant was a victim of domestic violence and that she was likely uncooperative in fear of repercussions from her ex-partner, Omar Hawatt (Mr Hawatt). He further stated that it was possible that the Applicant "may be the victim of future domestic violence perpetrated by Mr Hawatt" because Mr Hawatt had a history of perpetrating domestic violence against his former partners and would likely remain in contact with the Applicant despite their separation, as he is the father to her children. LSC Marsh included a copy of Section 6 of the 2018 Family, Domestic Violence and Sexual Violence in Australia by the Australian Institute of Health and Welfare to provide statistical evidence of the link between domestic violence and access to firearms.
35. The Applicant denied that she was a victim of domestic violence and denied that she feels or felt threatened by Mr Hawatt. She claimed that she now had little communication with him, and made arrangements to hand over the children to him and receive them back from him through a third party.
36. It is not necessary for the Tribunal to find that the Applicant is a victim of domestic violence. Even if she was subject to domestic violence by her ex-partner, the Applicant had held a firearms licence since 2014 and had possession of 3 firearms at the time that her licence was suspended. She had access to her firearms at any time during the course of that relationship with her ex-partner, but there is no evidence to suggest that her ex-partner ever had access to her firearms, or that she did not comply with safe storage requirements which could allow him or others to access the firearms. There were no threats made by her or to her in relation to the firearms which could indicate a risk to public safety (including risk of harm to her). In the circumstances the Tribunal rejects the Respondent's submission that her relationship with her ex-partner (whether or not that relationship involved domestic violence) supports a finding that it would not be in the public interest for the Applicant to have a firearms licence.
37. The Respondent also submitted that it was not in the public interest for the Applicant to have a firearms licence because of her associations: Police suspect the Applicant did not have a genuine reason for possessing firearms when she first applied for a licence In 2014, the year the Applicant first applied for a licence, Police believed that her sole reason for acquiring firearms was to supply them to Mr EI-Zaghir. In 2014, Police believed that Mr EI-Zaghir was associated with outlaw motorcycle groups and the Brothers for Life gang. Mr EI-Zaghir applied for his firearms licence on the same day as the Applicant, but his application was refused. The Commissioner acknowledges that some time has passed since this occurred, nevertheless, the Commissioner submits that, in the circumstances of the present matter, some weight should be placed upon it by the Tribunal.
38. The Applicant did not contest this evidence and there were no additional submissions made in relation to her association with Mr El-Zaghir or the allegations of firearms supply at the hearing. In the circumstances the Tribunal accepts that Police believed the Applicant's association with Mr El-Zaghir was a cause for concern, but gives this evidence very minimal weight on the basis that it is several years old, and amounts to vague unsupported hearsay.
39. The Respondent submitted that a further reason to revoke the Applicant's firearms licence was because she may not personally exercise continuous and responsible control over firearms because of her domestic circumstances. The Tribunal is not satisfied that this is established on the evidence currently before it.
40. The Tribunal is satisfied that the evidence demonstrates that the Applicant is not a fit and proper person to hold a firearms licence because of her repeated and extensive non-compliance, over a number of years, of her obligations under the Act and Regulation. As discussed above at [37], the public interest requires that all licensees be aware of and comply with the legislative requirements. The 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. The Applicant has failed to act in accordance with those legislated responsibilities in the past, and the Tribunal is not satisfied on her evidence that she would comply in the future. This would impose a real and appreciable risk to public safety. It is therefore not in the public interest for the Applicant to hold a firearms licence.
41. Accordingly, the correct and preferable decision is to affirm the Respondent's decision to revoke the Applicant's category AB firearms licence.

Orders 1. The Respondent's 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: 14 August 2023