Firmin 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]. Public safety, including the Applicant's safety, is the primary focus of the public interest issue and of the Act generally: Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134.
4. In these proceedings the Respondent relied on ss 11(3)(a) and 11(7) of the Act to refuse the Applicant's firearms licence application.

Fit and proper person

1. Section 11(3)(a) of the Act provides that: (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
2. 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. "
3. 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."
4. 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."
5. 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."
6. 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.
7. 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.
8. In Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 (then) Judicial 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. Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. 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. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], the 'public interest' is: '… an inherently broad concept giving the appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.'
3. 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.
4. In Director of Public Prosecutions v Smith (1991) 1 VR 63 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.
5. 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. 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].
6. 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.'
7. 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].
8. 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".
9. 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].
10. 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]-[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].
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. Where there has been or is the possibility of a threat to public safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Aubrey v Commissioner of Police [2005] NSWADT 266 at [21]. 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].

Extension of time

1. Rule 24(4)(a) of the Civil and Administrative Tribunal Rules 2014 (the Rules) provides that an administrative review application must be filed within 28 days after the day on which an internal review is taken to have been finalised under section 53(9) of the ADR Act. The Application filed by the Applicant's representatives on 27 January 2022 was 16 days out of time. For the Application to be determined by the Tribunal, it is necessary for the Applicant to be granted an extension of time to file the Application, pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (CAT Act).
2. The Respondent neither consented to nor opposed the Applicant being granted such an extension of time. In his application for review, the Applicant explained the delay as being caused by late involvement of legal representation.
3. The Applicant sought internal review of the Decision without legal representation. In circumstances where the Respondent did not issue an internal review decision, which is generally accompanied by notice to an applicant of his rights to review and the relevant time limits, and the period of delay is relatively short, I am satisfied that the applicant was unaware at the relevant time of the restrictive time limits for seeking review, and did so at the earliest opportunity once legal representation was obtained over the busy Christmas and New Year period. There being no identified prejudice to the Respondent caused by the delay, it is therefore appropriate for the extension of time to be granted in these proceedings and I am satisfied that it is in the interests of justice to do so, pursuant to s 41 of the CAT Act.

Applicant's evidence at hearing

1. The Applicant's criminal history included the following: 1. On 6 September 2005, the Applicant was found guilty in the Bidura Children's Court of resisting or hindering a police officer in the execution of duty, in contravention of section 546C of the Crimes Act 1900 (NSW). He was directed to enter into a good behaviour bond for a 6-month period pursuant to section 33(1)(b) of the Children (Criminal Proceedings) Act 1987 (NSW); 2. On 21 July 2009, the Applicant was found guilty and convicted in the Lismore District Court of supplying an indictable quantity of a prohibited drug - specifically 12 grams (or 49 pieces) of MDMA (Ecstasy), contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). At the same time, the Applicant asked the Court to take into account, in accordance with the Form 1 procedure in section 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW), an additional admitted offence of possessing a prohibited drug, specifically, 4.3 grams of amphetamine, contrary to section 10(1) of the Drug Misuse and Trafficking Act 1985. The Applicant was sentenced to 9 months' imprisonment suspended on entering into a 9-month good behaviour bond under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW); 3. On 26 December 2010, the Applicant was issued with a penalty notice for behaving in an offensive manner in a public place; 4. On 18 September 2011, the Applicant was issued with a penalty notice for behaving in an offensive manner in a public place; 5. On 22 September 2018, the Applicant was charged with possessing of a prohibited drug in contravention of section 10(1) of the Drug Misuse and Trafficking Act 1985. On 14 November 2018, the Applicant was convicted in the Waverley Local Court of possessing a prohibited drug (specifically, 0.61 grams of cocaine), and fined $500.
2. In addition to his criminal history, the Respondent provided the Tribunal with the Applicant's traffic history which included fines for speeding and ignoring traffic lights in 2010 - 2012, which were unpaid and resulted in a licence suspension in 2012/2014. He received speeding fines in 2017, 2018, and 2021.
3. At hearing and in his request for internal review the Applicant sought to explain his criminal history as behaviours which were the result of youthful stupidity. He expressed remorse for the conduct and stated that he had paid for his mistakes financially and by the associated embarrassment. He no longer was involved in the music festival scene which had been the context for his offending in 2008, and the sentencing for those offences had been "terrifying" and a "wake up call". His drug possession charge in 2018 was an anomaly, caused by a poor choice made in the context of a friend's wake. He had no drug offences in the period 2008 to 2018 and claimed to not have used any drugs since that occasion in 2018. He had moved to Wollongong, had a stable relationship, had obtained qualifications in plumbing, building and construction, had purchased a home, and maintained a healthy lifestyle. The Applicant claimed to now be suited to holding a firearms licence because he was a responsible person and had taken ownership of his past mistakes.
4. The Applicant's character references both included references to his criminal history and corroborated the Applicant's expressions of remorse and the isolated nature of the 2018 offence. Mr Kelly, a solicitor, was a mentor to the Applicant and the father of one of the Applicant's friends. He held a firearms licence and invited the Applicant, once licenced, to shoot on his properties. He expressed confidence that the Applicant would comply with legislative requirements and conduct himself safely. Mr Hume, a co-director of a bathroom company, was a childhood friend and reiterated the positive changes the Applicant had made to his life since the drug offences in 2008, and the remorse expressed by the Applicant for those events. Mr Hume's reference made no comments about the applicant's suitability to hold a firearms licence.

Submissions

1. The Applicant submitted that his suitability to hold a firearms licence was supported by the issue of a Victorian firearms licence. It seems from the evidence before the Tribunal, being the Applicant's letter to the Victorian Police Licensing and Regulation Division dated 10 March 2020, that the Victorian Police had similar concerns to those expressed by the Respondent in its Decision, requiring the Applicant to essentially show cause why the licence should not be refused based on his criminal history. However, this Tribunal was not provided with any information from the Victorian Police as to why it had ultimately determined to issue the licence, including any of the considerations taken into account and the weight given to those considerations. Their issuing of a Victorian firearms licence is therefore not a basis upon which this Tribunal can significantly rely in making its own decision.
2. The Applicant submitted that since there was no inference that he had been using firearms incorrectly since the Victorian licence was granted in 2020, this demonstrated his compliance with legislation, that he could be trusted with firearms in the community, and that he was therefore of virtually no risk to public safety.
3. The Respondent submitted that whilst there were no issues identified with the Applicant's compliance since holding a Victorian firearms licence in 2020, this was a relatively short period to consider, and so limited weight should be given to that consideration. In relation to the Applicant's character references, whilst positive, these could not outweigh any risks to public safety which would arise from the Applicant obtaining a firearms licence.
4. The Respondent submitted that the evidence of the Applicant's criminal and traffic history demonstrated that his poor attitude towards relevant laws and regulations were not yet remedied. The Applicant had stated: "I admit in August 2008 and September 2018 I was arrested on drug offences. The offence in 2008 was by far the biggest mistake of my life. I was a very young adult and very short sighted at the time… …In 2018 I had to attend a friends wake and become overly intoxicated leading to me being in possession of a small amount of drugs. That's not how I deal with my problems it was a stupid mistake which again I regret very much".
5. However the Applicant's criminal history demonstrated: …a pattern of antisocial behaviour and drug offences which suggest a propensity not only to break the law but, by the Applicant having repeatedly done so, to consider it subordinate to his immediate personal interests.
6. Whilst not particularly serious, the traffic offences gave context to this attitude. The Respondent submitted that because the most recent drug offence in 2018 occurred within the Applicant's 10 year ineligibility period (from holding a firearms licence), enough time had not yet passed since the Applicant's offending to provide confidence in his character, that he was a fit and proper person to now hold a firearms licence.
7. The Applicant referred to the decisions of Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272 at 47 (Romanos), Bowie v Commissioner of Police [2022] NSWCATAD 211 (Bowie), Petricevic v Commissioner of Police, NSW Police Force [2022] NSWCATAD 24 (Petricevic), Gear v Commissioner for Police, NSW Police Force [2017] NSWCATAD 241 (Gear) at 33-36 and Gorgieski v Commissioner of Police, NSW Police [2006] NSWADT 214 (Gorgieski) at 51 to support submissions that the Applicant's criminal history should not prevent him from obtaining a firearms licence.
8. Romanos, Bowie and Petricevic all involved Tribunal decisions granting firearms licences to applicants in circumstances where the problematic conduct or prior criminal offences occurred a significant period of time prior to the licence application. In Gear I exercised the Tribunal's discretion to set aside the revocation of a firearms licence because the Applicant's evidence demonstrated to me that he was a fit and proper person and posed virtually no risk to public safety. In Gorgieski the Tribunal accepted the Applicant's evidence that the criminal conduct, involving the cultivation of a single cannabis plant, was an isolated incident.
9. The Respondent relied on the decisions of Tannous v Commissioner of Police [2011] NSWADT 116 at [29] regarding principles of public safety, and Mulholland v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 116 (Mulholland) and Hawatt v Commissioner of Police [2021] NSWCATAD 109 at [46]-[50] to demonstrate that the Tribunal has historically taken a conservative view as to whether a gap in the timing of offences demonstrates that there is no risk to public safety in them being granted a firearms licence. In Mulholland, where the Applicant had not been charged with any new criminal offences for a 17-year period (8 years of which included a term of imprisonment), the Tribunal found at [56] that: …the nature of his offences would require evidence of a more comprehensive nature before the Tribunal could find that all significant risk was excluded.
10. Similarly, in Hawatt at [46]-[50], the Tribunal considered that it could not be satisfied that the applicant had the necessary regard for the firearms regulatory scheme and for public safety where there had been recent offending similar to prior conduct which had resulted in suspension of his drivers licence.
11. The discretion exercised by the Tribunal in each decision rests on its particular circumstances. As stated in Romanos at [47]: Licence holders are not required to have led entirely exemplary lives, and on all the evidence I find that there is no realistic prospect that he would present any risk to public safety or the peace if his licence were reissued. I therefore conclude that he is a fit and proper person to hold a firearms licence.
12. The evidence in these proceedings does not satisfy me that the Applicant's situation is analogous. The circumstances in these proceedings are distinguishable from each of the decisions relied on by the Applicant, because the Applicant's latest criminal conduct is fairly recent, and the conduct is not an isolated incident. I agree with the Respondent's submission that the Tribunal should take a relatively conservative view as to whether the timing of the Applicant's offences demonstrates a risk to public safety in them being granted a firearms licence.

Findings

1. Having regard to the authorities discussed above at [11]-[17], I accept the Respondent's submissions that the Applicant's criminal history demonstrates that he is not currently a fit and proper person within the meaning of the Act. Whilst the ten-year disqualification period for the 2008 offences have expired, the additional offence in 2018 supports a finding that the Applicant has not yet sufficiently rectified his character so as to ensure he does not fall back into committing drug-related offences in the future.
2. I agree with the Respondent's submission that significant weight must be given to drug-related offences in the present statutory context. The use of prohibited drugs is an inherent risk to the safety of the user, in addition to the threats to public safety caused by those supplying prohibited substances.
3. Despite the Applicant's assertion that his conduct in obtaining cocaine in 2018 at or after a friend's wake was an isolated incident, there is no evidentiary reason for the Tribunal to believe that he would not again similarly offend by seeking out illegal drugs in circumstances of stress or distress in the future. His character reformation, on his own evidence, occurred between 2008 and 2018 and involved him growing up, having a serious partner and studying for additional qualifications, yet didn't prevent him engaging in the conduct subject of the 2018 offence. Whilst his character references support his assertions about an improvement in character, they do not include any information distinguishing the Applicant's character prior to the 2018 offence from his character now.
4. In light of his criminal history there is insufficient evidence that the Applicant is now a fit and proper person, with a requisite level of regard for the law. On the evidence available, including the Applicant's demonstrated propensity to consider the law as subordinate to his own interests, I cannot be satisfied that granting him a firearms licence would thereby result in virtually no risk to public safety.
5. I also find that it is not in the public interest to grant the Applicant a firearms licence at this time. The Applicant's ten-year disqualification period from his 2008 criminal offences only expired in mid-2019. Prior to that expiration, late in 2018, the Applicant was caught in possession of cocaine and was convicted of the related criminal offence. The Tribunal only had a discretion in these proceedings as to whether the Applicant should be granted a firearms licence because the Applicant received a fine of $500 for the 2018 drug offence. If the penalty imposed included a fine of $2,200 or more (or a term of imprisonment (whether or not suspended), a community service order or a good behaviour bond), that offence would have also been a "prescribed offence" for the purposes of Clause 5(b)(i) of the Firearms Regulation 2017, and the Applicant would have been ineligible to be issued a firearms licence for a period of 10 years after that conviction.
6. Despite the additional offending, the Applicant applied for a firearms licence within 6 months of the disqualification period expiring. Whilst the Victorian Police may have been satisfied with the Applicant's reformation of character, the Respondent is not. I agree with the Respondent that, together with the Applicant not being a fit and proper person, an insufficient period of time has elapsed since the date of the Applicant's last offence, for the Tribunal to be satisfied that it is in the public interest to grant him a firearms licence.
7. The correct and preferable decision is therefore for the Tribunal to affirm the Respondent's decision.

Orders 1. Time to lodge the application is extended to 27 January 2022 pursuant to s 41(1) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The Respondent's decision 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: 07 October 2022