The Applicant was first authorised for firearm possession in early 2013 for the purposes of operating as a primary producer. The Applicant's need to possess a firearm is to manage pest species on his property and to meet his obligations of animal welfare. In this regard, as at August 2022, the Applicant's property comprised 1800 acres on which he ran 60 cattle, 2500 sheep, 4 breeding pigs, 5 growing pigs and 250 chickens.
On 4 February 2019, that firearms licence was reissued. That licence was due to expire on 26 March 2024.
The Applicant maintained continuous authority of that licence until it was revoked by police on 15 March 2022.
The Applicant is married with two small children who reside with him. His son was two years old at the time of the events of 16 February 2022 and has Downs Syndrome. His other child was 4 years old at the time.
The Applicant has no criminal history.
On 16 February 2022, the police attended the Applicant's residence to serve an Apprehended Violence Order ("AVO") on the Applicant's brother who was residing with him at that time. This is despite that AVO having already been served on the Applicant some months earlier. The Applicant's brother was paroled to the Applicant's address. The Applicant's evidence is that the Applicant had informed the Community Corrections Officer that performed the home visit prior to his brother's release from prison of the existence of firearms at his home and was told that it was not an issue.
In any case, the police indicated to the Applicant that they were obligated to seize the Applicant's firearms because of the Applicant's brother presence because under the Act, a person with an AVO cannot reside at an address which is registered to store firearms.
It was approximately 8:50pm when the police arrived at the Applicant's residence, and it was dark. I have viewed the body worn footage of one of the police officers that attended that evening which is relied upon in this proceeding (as described below).
At the time the police vehicle approached the property, the Applicant was out feeding livestock and attending to jobs around the house. I accept that the police had attempted to contact the Applicant prior to attending but that such attempts had been unsuccessful. As those attempts had been unsuccessful, the Applicant's evidence is that he was shocked and confused to see the police vehicle as he had received no warning and I accept the Applicant's evidence in this regard.
The Applicant was hesitant to allow the police to enter the property. The Applicant demanded to know the purpose of the visit which was explained to the Applicant by the police. The Respondent alleges that the Applicant's behaviour was "argumentative", "confrontational, hostile and uncooperative"; "aggressive, hostile and belligerent" contained accusations of trespass against the police and included finger-pointing. The Respondent further contends
1. that the behaviour was so hostile that the police were unable to seize the bolts and ammunition.
2. the behaviour of the Applicant on that evening "speaks for itself" with reference to the body worn footage.
The Applicant admits he was frustrated at the late visit in respect of which he had had no notice and admits that he raised his voice. The Applicant expressly indicated in his internal review request
"I am sorry if the Police felt that treated them unfairly or unjustly"
Otherwise, the Applicant denies the characterisation of his behaviour by the police and contends that his behaviour was reasonable as it was a result of being surprised by the late-night visit, a desire to protect his family, and that he felt intimidated by the police. The Applicant's evidence was that he was concerned given the time of the visit and the fact that his children were sleeping. Given the hour, he had no ability to verify that the documentation being served was correct and binding as in his words "the Courts are only open from 9am to 4pm".
His evidence is that he asked for a short time so he could inform his brother of the police, his brother and himself could deal with the matters with the police outside the home and that process would reduce any disturbance to his family. At one point he asks:
"Can you give me five minutes? That is all I am asking for"
The police refused the request on the basis that they had to enter the home to seize the firearms themselves.
The Applicant entered the home, and the Respondent alleges, locked the door behind him to deny entry. The Applicant denies this.
The Applicant informed his brother, who was near the front door, that the police were there to see him. The Applicant's brother then spoke to the police and the police explained that they needed to serve the AVO.
The Applicant returned to the door and spoke to the police again. He said words including:
"So come and get the rifles and get out. Get out. Let's go. Hurry up."
The police then entered the premises. The Applicant led them to the place that the firearms were stored, and the Applicant handed them four rifles. No request was made for the bolts and ammunition either at this point or at any point of the footage.
The police officers left the home. On the veranda of the home, one of the police officers explained to the Applicant's brother, who was later joined by the Applicant, the steps that the Applicant could take to get his rifles returned. The following was represented by the police officer to the Applicant:
1. The Applicant could write a letter to the District Commander Superintendent within 28 days explaining that the firearms can be transferred to another address (being another property owned by the Applicant on which his parents lived) and requesting their return on that basis;
2. If such a letter was submitted, it would be submitted up the chain of command for consideration and approval; and
3. If the Applicant's brother no longer resided at the Applicant's address, the firearms could be returned.
That conversation included the following words by the police officer, which was an attempt to assist the Applicant:
"He can get them back tomorrow … There's no issues mate. There's no issues"
In respect of these events, the police report states:
"Based on the behaviour of the owner towards police during the seizure it is the opinion … that the firearms are not returned due to his hostility towards police and refusing to permit police to enter his premise"
That evening, the Applicant prepared a letter as instructed by the police officer in which he explained the context of his letter and indicated:
"I would like to have the seized firearms transferred to my second property [address]"
The next day the Applicant attended the police station with the intention of picking up his firearms. This was a reasonable assumption given it was what the Applicant had been informed the night before. He was holding his young child because as he explains in his evidence, he is also the primary care giver to his children. According to the Applicant, he said words to the following effect:
"Can I get my firearms back? … I thought you would know about it and what the process was from here"
However, according to the evidence of the Applicant, the police officer on duty (who was a different police officer to those who had attended his home the night before) indicated that she did not know what the Applicant was talking about but attempted to assist the Applicant by providing him with an email address of the police officer who had attended his home.
The Statement relied upon by the Respondent describes the Applicant's behaviour on this occasion as "abusive" despite attempts at trying to assist him and calm him down. Consistent with the description given to the Applicant's conduct by the police the night before, the police report describes his approach on this occasion as "aggressive" and "intimidating" saying words to the effect of:
"You should know [about the situation with the firearms], you barged into my house last night… I want my guns back!"
The Applicant attempted to use the email address provided to him to make inquiries of the police officer who had advised him he could get his firearms back. However, the email address provided to the Applicant was incorrect and did not exist.
At some point, which the Applicant says was the morning of 21 February 2022, the Applicant was provided an event number by the police to make inquiries of the NSW Firearms Registry. Curiously, this visit is absent from the police report although the statement of Constable Firth describes an attendance by the Applicant on this date however the events Constable Firth associates with that date appear to relate to the visit of 22 February 2022 (described below).
In any case, on 21 February 2022, the Applicant contacted the NSW Firearms Registry and was told that no details could be provided to him because the event number provided to the Applicant by the police was not registering in their system.
On 21 February 2022, the Respondent made the decision to suspend the Applicant's firearms licence based upon the events of 16 and 17 February 2022. On that date, a police officer contacted the Applicant to inform him of the need to surrender his firearms licence. The Applicant admits that he became frustrated when informed of this and admits saying, "in the heat of the moment", words to the effect of:
"I will attend the police station when I'm good and ready"
The Applicant was then advised that if he did not attend, he would be arrested. The Applicant agreed to attend the police station the next day to surrender his licence.
The next morning on 22 February 2022, the Applicant, again, called the NSW Firearms Registry to inquire about the next steps to obtain back his firearms and what he could do to challenge the suspension of his firearms licence. The Applicant was advised that the registry was unable to find any information about the Applicant's case.
Later that day, the Applicant attended the police station to surrender his firearms licence. The Applicant, again, requested that he be informed about how he could apply to have his licence reinstated and indicated that he did not want to hand it over until that was explained. In response, the Applicant was told that he would need to contact A/ SGT Shayne Brannen who was not in the station at that time.
The Applicant admits feeling frustrated with this approach in the context of the many steps taken to obtain clarity about the process. According to the Applicant, after repeated requests, A/SGT Shayne Brannen was contracted by phone by a police officer in attendance and placed on loudspeaker. He explained to the Applicant that there was a 28-day cooling off period and the Applicant would need to write to the District Commander Superintendent.
Consistent with the other entries in the police report, the conduct of the Applicant is described as "verbally aggressive, intimidating and demanding towards police". The Applicant denies this.
The Applicant wrote a letter to the District Commander Superintendent on 23 February 2022 as advised. On 15 March 2022, the Applicant was informed that his firearms licence had been revoked. On 11 April 2022, the Applicant requested an internal review. On 27 April 2022, the Respondent affirmed the original decision.
Other than the events of 2022, the Respondent draws the Tribunal's attention to the fact that
1. the Applicant allowed his firearms licence to lapse on 1 August 2018, whilst still in possession of firearms. The respondent contends that this lapsing was despite the Firearms Registry having sent him a renewal notice and warning notice 28 days prior to the expiry, resulting in the Applicant being unauthorised to possess firearms for a period of 16 days. The Applicant denies this and gives evidence that he had applied for his licence but there was a backlog of applications which caused the lapsing. He further informs the Tribunal that he was contacted by the police station who apologised for the inconvenience but informed him he would need to surrender his firearms until a new licence was reissued.
2. On 13 April 2022, an invoice was sent to the Monaro Police District by Bellevue Park Enterprise for "chickens lost to fox" and "unwanted piglets" that the Respondent contends can be traced to the Applicant.
[2]
Applicable legislation
Section 24(2)(a) of the Act provides that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind.
Section 24(2)(c) of the Act relevantly provides that if the Respondent is of the opinion that the licensee is no longer a fit and proper person to hold a licence.
Section 24(2)(d) of the Act provides that a licence may be revoked for any other reason prescribed by the regulations.
Clause 20 of the Firearms Regulation 2017 (NSW) provides that the Respondent may revoke a licence if the Respondent is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
Section 11(4)(a) of the Act provides that the Respondent must not issue a licence to a person if the respondent has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's way of living or domestic circumstances.
Section 3(1) of the Act provides guidance as to how the Act is to be administered which declares that firearms possession and use is "conditional on the overriding need to ensure public safety".
It is in this context that the Respondent's power to revoke a licence must be applied and to determine whether considerations of public interest or concern for public safety justify the refusal.
Accordingly, the issue to be addressed by the Tribunal involves considerations of public interest including whether any concerns for the risk of public safety justify the refusal. However, it is necessary to adopt a balanced view of any identifiable risk bearing in mind all relevant circumstances: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32] (Webb)
[3]
Tribunal review
The Applicant's application for review of the of the Commissioner's refusal is pursuant to s 75(1)(c) of the Act and ss 9(1) and 55 of the Administrative Decisions Review Act 1997 (ADR Act).
Pursuant to s 63 of the ADR Act, the Tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one.
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: Civil and Administrative Tribunal Act 2013, s 38(2) (CAT Act).
[4]
Evidence
In addition to the oral submissions made on behalf of both parties and the material lodged by the Commissioner pursuant to s 58(1) of the ADR Act, the Respondent relies upon:
1. Statement of Detective Senior Constable Double Day;
2. Statement of Constable Firth;
3. USB device containing body worn camera footage of the events of 16 February 2022;
4. A pro forma letter entitled "Reminder Notice of Expiry of Firearms licence";
5. A screenshot of the NSW Police Force Integrated Licensing System displaying License History Display;
6. A copy of the final order AVO order served on the Applicant's brother described above; and
7. Written submissions dated 12 September 2022.
In addition to those materials, the Respondent served subsequent submissions attaching Annexures A to D dated 6 October 2022 regarding the "delegation issue" which is dealt with below. The Respondent was given this opportunity to afford it procedural fairness because the issue was raised for the first time on behalf of the Applicant at the final hearing.
The Applicant relies on:
1. Statement of the Applicant with Annexures A to E;
2. Character reference of Ms Denley;
3. Written Submissions dated 19 August 2022
[5]
The submissions
In making the case that the Respondent's decision to revoke the Applicant's firearms licence is correct and preferable, the Commissioner drew the Tribunal's attention to the following contraventions of the Applicant:
1. the Applicant's current domestic situation that involves his brother residing with him, who Police refer to within the notice of revocation as having a lengthy criminal history and current AVO in place;
2. the lapsing of the Applicant's firearms licence on 16 February 2022 as described above; and
3. the Applicant's conduct towards the police on 16, 17 and 22 February 2022 is not compatible with responsible firearms ownership and demonstrates that he is a fit and proper person who will comply with firearms regulation which raises serious concerns regarding whether it is in the public interest for the Applicant to hold a firearms licence.
Conversely, the Applicant contends:
1. to the extent the Applicant's domestic situation is a risk, it can be changed by storage of the firearms at the Applicant's second property.
2. otherwise, the Applicant denies the characterisation given to his conduct by the Respondent and denies that the evidence supports that he is a threat to the public is not a fit and proper person or that the issuing him with a licence is contrary to the public interest.
For the reasons below, I agree with the submissions made on behalf of the Applicant.
[6]
Legal principles
The expression "public interest" 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]. Considerations may go beyond the character of the Applicant and may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33].
In respect of considering the underlying principles of the Act which emphasise the need to ensure public safety., the Respondent referred to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 ("Ward") in the context of submitting that the appropriate test in the circumstances of this case is that I must be satisfied that there is virtually no risk to public safety if the Applicant were given access to a firearm. However, since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7] that that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because Her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. 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 Act and comments in cases should not be substituted for those tests.
It is not the case, as indicated in Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] to [66], that an Applicant is required to discharge an almost impossible burden of proving a near-absolute negative.
Rather, as stated in Webb at [32] when considering the question of public safety:
"In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration".
In respect of the general principles in considering whether a person be considered fit and proper to hold a firearms licence are well established and discussed below.
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained 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."
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184. Public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65 at [37]. The test for whether a person is fit and proper is guided by similar considerations to those applying to the "public interest": Green v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 59 at [72]-[79]. In this context, fitness and propriety "must be considered in the context of at all times ensuring public safety": Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at [22].
[7]
Application
In respect of the Applicant's interactions with the police on the night of the 16 February 2022, the Applicant was impatient, flustered and angry. His tone was assertive and strong. I accept that the Applicant was unhappy with the circumstances that he found himself in; that he was concerned for his family's safety and that he was argumentative. I otherwise reject that the Applicant was confrontational, hostile, uncooperative, aggressive, hostile or belligerent.
In this respect, I note the following.
First, I have analysed in detail the body worn footage which I find inconsistent with the characterisation given to this conduct by the Respondent.
Secondly, the representations to the Applicant made by the police officer on the scene appear inconsistent with the contentions of the Respondent. As extracted above, the police officer in attendance stated with respect to the firearms:
"He can get them back tomorrow … There's no issues mate. There's no issues" [Emphasis added]
Those express assurances given by the officer experiencing firsthand the conduct of the Applicant now complained of, namely that "there's no issues [with the return of his firearms]" sits uneasily with the contentions that such conduct required the revocation of the Applicant's firearms licence.
Thirdly, I do not accept that the description of the events of 16 February 2022 are accurately described in the police report given that the conclusion is as follows
"Based on the behaviour of the owner towards police during the seizure it is the opinion … that the firearms are not returned due to his hostility towards police and refusing to permit police to enter his premise"
Such a conclusion is impossible to reconcile with the express representations made by the police officer who was present that evening and impossible to reconcile with the fact that the Applicant expressly indicated that the police could enter his home and then, assisted them in retrieving his firearms.
In that respect, I do not accept that the Applicant locked his door to preclude the officers' entry. The body warn footage shows that the Applicant's brother opened the door following the Applicant's entry into the house without any need to unhinge or unlock any latch.
Thirdly, I do not accept as contended by the Respondent that the Applicant's conduct precluded the officers in attendance from seizing the bolts and ammunition from the Applicant. As evidenced from the body warn footage, no request was made for the bolts and ammunition prior to entry to the home, while in the home or during the conversation on the veranda. There is no reason to infer that the Applicant would not have complied with such a mandate given his acquiescence to the need to seize his firearms and his acquiescence to surrender his firearms in 2018 when his firearms licence lapsed.
Regarding the events of the 17 and 22 February 2022 and the dispute as to the conduct of the Applicant, I prefer the evidence of the Applicant given the inconsistencies with respect to the evidence relied upon by the Respondent as to the events of the 16 February 2022.
With respect to the sending of the invoice, I find that the sending of the invoice, to the extent it can be traced to the Applicant, showed a lack of judgment. However, I do not find that such an act would be sufficient to find that the Applicant was not a fit and proper person nor that it was contrary to the public's interest to issue him with a firearm's licence.
With respect to controversy regarding the lapsing of the Applicant's firearms licence as described at paragraph 37 above, whatever the circumstances, it is not in dispute that the Applicant complied with its obligations in light of the lapsing in that the Applicant surrendered his firearms on 17 August 2018 and nor is it in dispute that his licence was subsequently re-issued. Even if I accepted the Respondent's version of events, these circumstances alone would not give rise to a finding that the Applicant was not a fit and proper person or that issuing a licence to the Applicant would be contrary to the public interest.
Lastly, in respect of any concerns about the firearms being at the Applicant's residence while his brother resides there, that situation is no longer subsisting given that the police have seized those firearms. In any case, the Applicant's representative has affirmed that the Applicant is able and would be amendable to a condition specifying that the firearms cannot be stored at his home while his brother resides there and while his brother is subject to an AVO. The Applicant's evidence is that he is the owner of a second property (at which his parents reside) that could store the firearms. The Respondent was given an opportunity at the hearing to respond to this proposition.
Section 19(1) of the Act deals with the placing of conditions on firearms licences. The Respondent (and thereby the Tribunal by s63(2) of the ADR Act) is empowered by virtue of s 19(1) of the Act to place a condition on a firearms licence when it is "issued". As the administrative review before me relates to a revocation of an existing licence not the issuing of a new one a question arises as to whether the Tribunal (and the Respondent) is empowered to place conditions on an existing licence in the present circumstances.
While the decision I am required to make is dealing with the revocation of an existing licence, to give effect to the setting aside of a revocation decision, the firearms licence must be reissued to the Applicant by the Respondent as a practical matter. I find that the plain meaning of "issue" as used in s 19 of the Act is broad and includes the "reissuing" of a licence that was subject to a revocation which is subsequently set-aside. This is supported by multiple decisions in this Tribunal that have set aside revocation decisions and made orders "reissuing" the firearms licence (or sometimes described as "reinstating"): Saad v Commissioner of Police [2022] NSWCATAD 207; Coxhead v Commissioner of Police [2022] NSWCATAD 231; Robinson v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 251; Fisher v Commissioner of Police, Ayoub v Commissioner of Police, NSW Police Force [2022] NSWCATOD 137; New South Wales Police Force [2021] NSWCATAD 320; Burey v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 344; Carroll v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 301; Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272; Gear v Commissioner for Police, NSW Police Force [2017] NSWCATAD 241; Lynch v Commissioner of Police, NSW Police Force [2014] NSWCATAD 36.
Additionally, this reasoning is consistent with the multiple decisions which have set aside a revocation decision in the context of making orders applying a condition on the existing licence: Wallin v Commissioner of Police (No 2) [2022] NSWCATAD 83; Prevetera v Commissioner of Police [2021] NSWCATAD 133; Moss v Commissioner of Police [2020] NSWCATAD 262; Wells v Commissioner of Police, NSW Police Force [2010] NSWADT 246; Liston v Commissioner of Police, NSW Police Force [2008] NSWADT 156; Bichler v Commissioner of Police [2009] NSWADT 27
In further support is the Appeal Panel's decision in Wallin v Commissioner of Police, NSW Police Force [2021] NSWCATAP 368. That appeal was successful on procedural fairness grounds, but the Appeal Panel otherwise held that as a matter of principle, there was power to impose conditions on the firearms licence in the context of an administrative review of a revocation decision that is set aside (at [32]).
Otherwise, I am not empowered to order that the Applicant's firearms that have been seized be returned to him. To the extent the Applicant's firearms are not returned, the Applicant may seek such orders in the Local Court or the Children's Court consistent with s 80 of the Act.
Consistent with the findings above, I do not accept that there is sufficient cause to find that the Applicant is no longer a fit and proper person. I further do not accept that issuing the Applicant with a firearms licence would be contrary to the public interest. Those findings are sufficient to deal with this matter, however if that was not the case, I also note the positive evidence as to the Applicant's character that also supports the Tribunal's conclusions and specifically:
1. the Applicant is a hard-working primary producer given that at the time the police vehicle approached the property at almost 9pm in the evening, the Applicant was out feeding livestock and attending to jobs around the house.
2. despite the responsibilities of being a primary producer, the Applicant is also the primary caregiver to his two children who are both under the age of five years, one of which has been diagnosed with Downs Syndrome.
3. the Applicant, despite his responsibilities as described above, supports his brother's transition from incarceration to parole by providing a residence for his brother to reside while on parole; and
4. the Applicant also supports his parents' living arrangements as he has a second property in his name at which he allows his parents to live.
I also make orders imposing a condition on the Applicant's firearms licence that while the Applicant's brother resides with the Applicant, the firearms must not be stored at the Applicant's residence. I also make additional orders which are based upon s 17(3) of the Act and consistent with the orders made in Wallin v Commissioner of Police (No 2) [2022] NSWCATAD 83. Those additional orders facilitate the storage of the Applicant's firearms at a different address while his brother resides with him and, subsequently the return of the firearms to the Applicant's residence when his brother no longer resides with the Applicant:
[8]
Delegation issue
An issue was raised by way of oral submissions on behalf of the Applicant challenging the power of the decision marker who issued the notice of revocation and the internal reviewer who subsequently conducted the internal review. As submitted by the Applicant, the decision makers were not acting under an instrument of delegation that allowed them to undertake those functions on behalf of the Respondent.
The Applicant has not led any evidence that would support this challenge.
The absence of evidence in this respect is fatal to the Applicant's submission in that s 49(5) of the Interpretation Act 1987 provides that a delegated function shall, until the contrary is proved, be taken to have been duly exercised by the delegate. As the Applicant has not led any evidence to establish that the delegate did not duly exercise its functions but relied upon mere assertion, the contention must fail.
Even if that was incorrect, the Respondent has subsequently provided to the Tribunal and the Applicant an Instrument of Delegation and Authorisation; and Instrument of Sub-Delegation and Authorisation which evidences the delegation and sub-delegation of the Commissioner consistent with the delegation of power to the decision marker who issued the notice of revocation and the internal reviewer who subsequently conducted the internal review.
[9]
Conclusion
Accordingly, the totality of the evidence leads me to the conclusion that:
1. the evidence does not satisfy me that the Applicant is no longer a fit and proper person to hold a licence; and
2. it would not be contrary to the public interest for a firearms licence to be issued to the Applicant,
I so find.
[10]
Orders
1. The decision under review is set aside
2. The Applicant's firearms licence category ABC be reissued.
3. A condition be placed on the Applicant's firearms licence that no firearms may be stored at the Applicant's residence, while Stuart Andrew Fletcher resides at that residence.
4. The Applicant is to notify the Firearms Registry of the address at which the firearms described at order 2 are to be kept ("Firearm Storage Location"). This notification is to be given in writing by email or as otherwise agreed with the Firearms Registry and is to be given no later than 14 days after the firearms have been stored at that address ("Address Notification"). The Address Notification must:
1. specify the address on which the firearm is to be kept when not actually being used;
2. specify particulars of the arrangements that have been made by the licence holder for the safe keeping and storage of the firearm on those premises: and
3. certify that those arrangements comply with the requirements of the Act and the Regulation concerning the safe keeping and storage of firearms.
1. No later than 14 days after the firearms have been stored at an address other than the Firearm Storage Location, the Applicant is to provide the Address Notification in respect of that new address.
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: 09 November 2022
vetera v Commissioner of Police [2021] NSWCATAD 133
Robinson v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 251
Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272
Saad v Commissioner of Police [2022] NSWCATAD 207
Smith v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184
Wallin v Commissioner of Police, NSW Police Force [2021] NSWCATAP 368
Wallin v Commissioner of Police (No 2) [2022] NSWCATAD 83
Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110
Wells v Commissioner of Police, NSW Police Force [2010] NSWADT 246
Category: Principal judgment
Parties: James Fletcher (Applicant)
Commissioner of Police (Respondent)
Representation: Counsel:
Mr J Moffett (Applicant)