Gear v Commissioner for Police, NSW Police Force

Legislation

1. The underlying principles of the Act are, relevantly: 1. to confirm that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety; and 2. to improve public safety by imposing strict controls on the possession and use of firearms and by promoting the safe and responsible storage and use of firearms.
2. The sections of the Act that are applicable to the present matter are: 1. section 11(5)(d), which provides that the Commissioner must not issue a licence to a person who is subject to a good behaviour bond, whether entered into in New South Wales or elsewhere, in relation to an offence prescribed by the regulations; 2. section 19(2)(a), which provides that each licence is subject to the condition that the licensee must comply with the relevant safe keeping and storage requirements under the Act, which are set out in Part 4 of the Act; 3. section 24(2)(a), which prescribes 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; 4. section 24(2)(b)(ii), which provides that a licence may be revoked if the licensee contravenes any provision of the Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention; 5. section 24(2)(d), which provides that a licence may be revoked for any other reason prescribed by the regulations; and 6. section 70 which provides that a person must not, in or in connection with an application under the Act or the regulations, make a statement or provide information that the person knows is false or misleading in a material particular.
3. The clauses of the Firearms Regulation 2006 (NSW) ("the Regulations") that are applicable to the present matter are: 1. clause 5(2)(b), which proscribes for the purposes of section 11(5)(d), an offence in respect of a prohibited plant or prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985, or a prescribed restricted substance within the meaning of the Poisons and Therapeutic Goods Regulation 2002, committed under: 1. the law of any Australian jurisdiction, or 2. the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction), 1. as sufficient to disqualify a person from eligibility to receive a firearms licence; and 2. clause 19, which provides that 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.
4. The Tribunal has jurisdiction to review the Respondent's decision pursuant to section 75(1)(c) of the Act and section 30 of the Civil and Administrative Tribunal Act 2013.
5. The Tribunal can take into account both the material before the original decision maker as well as any new material put before the Tribunal: See Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77.

Fit and Proper

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 ABT 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."

The public interest

1. Section 24(2)(d) of the Act prescribes that a licence may be revoked for a reason prescribed by the Regulation. Clause 19 of the Regulation allows the Commissioner of Police to revoke a licence if he is satisfied that it is not in the public interest for the licensee to continue to hold the licence. Accordingly section 24(2)(d) of the Act and Clause 19 of the Regulation work together to provide authority for the revocation of a licence where the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
2. The concept of "public interest" was discussed by the Administrative Decisions Tribunal (NSW) ("the ADT") in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 as follows: The "public interest" is an inherently broad concept giving an appellant [the Respondent] the ability to have regard to a wide range 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 in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operated 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. The circumstances in Toleafoa related to the revocation of a security licence under the Security Industry Act 1997 (NSW). In Ward v Commissioner of Police [2000] NSWADT 28, the ADT confirmed that these comments apply equally to the Act.
4. In Cusumano v Commissioner of Police [2001] NSWADT 50, the ADT stated: There is no guidance in the legislation in relation to how these directions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.
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, namely, to confirm firearm possession and use as a privilege conditional upon the overriding need to ensure public safety.
6. The principal issue in determining public safety is therefore whether or not there is a risk to the safety of the public if the Applicant retains the relevant licence: Vella v Commissioner of Police [2003] NSWADT 91. 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, [117].
7. In Ward v Commissioner of Police the ADT's Deputy President Hennessy considered the fitness and propriety of Mr Ward to hold a firearms licence. The Deputy President stated at paragraphs [27 - 28]: "27 ...The question for the Tribunal is whether, based on all the evidence, it would have confidence that [the Applicant] would not pose a risk to public safety if he had access to firearms. 28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk."

Consideration

1. The Respondent's revocation of the Applicant's firearms licence followed the execution of a warrant on the applicant's premises on 4 March 2015, during which the following items were located: 1. 2 cannabis plants growing in the Applicant's back yard; 2. an unsecured firearm; 3. several loose ammunition cartridges stored inside the Applicant's unsecured bedside drawer; 4. a pair of handcuffs stored inside the Applicant's bedside drawer; and 5. a pair of home-made 'knuckle dusters'.
2. The Applicant was charged on 30 June 2015 with an offence of 'Cultivate Prohibited Plant' in breach of section 23(1)(A) of the Drug Misuse and Trafficking Act 1985. No charges arose from the other items located at his premises. The Applicant pled guilty to the charge at the earliest opportunity and was placed on a 12 month good behaviour bond pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999, which ended on 25 January 2017.
3. The offence for which the Applicant was charged is prescribed by clause 5(2)(b) of the Regulations for the purposes of section 11(5)(d) of the Act. There is therefore no discretion for either the Commissioner or the Tribunal with respect to an application for a new licence to a person subject to a good behaviour bond, in relation to prescribed offences. There is, however, a discretion with respect to whether a licence already held ought to be revoked under s24(2)(a) of the Act. The Commissioner validly exercised that discretion in revoking the Applicant's firearms licence.
4. However, the Tribunal is in a different position to the Commissioner, as the good behaviour bond has since expired and it is the Tribunal's role to consider the correct and preferable decision now, not as it was when the Commissioner made the reviewable decision. Whilst the Applicant's expired good behaviour bond is not as relevant to the Tribunal's determination as it was to the Commissioner's, I accept that the charge and the underlying conduct which resulted in the good behaviour bond, are relevant when considering the public interest in Section 24(2)(d) of the Act and clause 19 of the Regulation.
5. To that end, I accept the Applicant's evidence that the cannabis cultivation was for personal use, as a result of chronic pain, depression and anxiety following a motor vehicle accident suffered in 2012. Whilst illegal drug cultivation and usage is certainly against the public interest, there is no evidence before me to suggest that these particular circumstances have had or could have any effect on public safety.
6. The Respondent submitted that the Applicant's failure to adhere to relevant storage requirements demonstrated conscious disregard for the statutory requirements and was a risk to public safety. This was stated on the basis that at the time the Police executed the search warrant, the Police located ammunition which was not being stored in accordance with Part 4 of the Act, and also found that one of the Applicant's firearms was not kept safely. The Respondent submitted that the level of risk to public safety was raised significantly by his incorrect storage of this ammunition and firearm, and the context of cultivation and use of a prohibited drug and having "in his possession other prohibited weapons".
7. In the Statement of Facts for the criminal proceedings, the Police accepted the Applicant's statement that he had been cleaning the unsecured firearm prior to their arrival. I accept that evidence. I also accept the Applicant's explanation for the ammunition which was located in his bedside drawer - that they did not fit into any gun in his possession, were of a sentimental value (having belonged to his grandfather some 60 years earlier), and that he realises now in hindsight that they should be properly stored. I don't agree that there is a risk to public safety or a conscious disregard for the statutory storage requirements in these circumstances.
8. The context of the Applicant's personal cannabis cultivation and usage has been addressed in the criminal proceedings. Despite the Respondent's assertions and submissions, there is no evidence before me that the Applicant ever used or intended to use his firearms whilst under the influence of cannabis, or any other drugs or alcohol, and decline to draw that inference.
9. The Respondent relied on the Applicant's possession of "other prohibited weapons" as a basis for demonstrating a risk or increased risk to public safety. The evidence was that the Police had located a pair of handcuffs which the Applicant said had been gifted to him and which had been in the bottom of a drawer for years, and a set of home-made, child-sized knuckledusters made by his grandfather for him when he was about 13 years of age. Whilst prohibited under the Weapons Prohibition Act 1998 (NSW) I don't consider the applicant's possession of these items to demonstrate any actual or increased risk to public safety in the circumstances.
10. The Respondent submitted that the applicant does "not always abide by firearms legislation", has "a lax attitude regarding firearms and weapons laws" and has a "poor attitude to firearms and weapon legislation". In my view, the evidence does not support these submissions. The Applicant has no history of violence or criminal association. He has a lengthy and extensive Firearms Licence history, used both professionally and recreationally. He has the requisite storage facilities for his firearms and ammunition. Other than a "transitionary" failure to renew his licence for a short period in 2008/2009 which was soon rectified, there have been no issues raised with his possession of firearms or his firearms licence prior to the search warrant conducted in March 2015. This includes being subjected to periodic firearms inspections for which he was found to be compliant. I therefore reject the Respondent's submission.
11. The Respondent also sought to rely on the Applicant's mental health issues to support revocation of his firearms licence. The reliance was twofold - first, that the Applicant's failure to disclose his psychiatric treatment in his renewal application was a false or misleading statement; and second, that the Applicant's psychiatric treatment could demonstrate a potential risk to public safety if he were to retain or reobtain his firearms licence.
12. On 7 May 2014, the Applicant stated in his Re-Application for a Personal Firearms Licence that he had not, in the past 12 months, been referred or treated for a mental or nervous disorder or illness. However, the Applicant was being treated for post-traumatic stress disorder, depression and anxiety. This was therefore a false or misleading statement within the meaning of s70 of the Act, which supports a discretionary licence revocation pursuant to s24(2)(b) of the Act. Further, because of the Applicant's false or misleading statement in the licence application, the Respondent was not afforded an opportunity to properly consider the Applicant's mental health in the context of his firearms licence application.
13. The Applicant provided his own evidence of his mental health, as well as reports from his treating psychologist, Mark Benad. The Applicant explained in evidence that he had not considered the question posed in the application form to be related to his psychological treatment resulting from his back injury. Mr Benad stated in his report "I have never entertained fears that he poses a risk to himself or others. His depression has primarily been manifest in withdrawn and isolating functioning rather than angry outbursts or behavioural disturbance", "I do not believe there is any current risk in relation to Mr Gear having access or subsequent use of firearms", "To the best of my knowledge, there has never been any past issues in connection to impairment affecting his ability to maintain control and responsibility over firearms". I accept those opinions as evidence of the Applicant's mental health in the context of a firearms licence, to the effect that the Applicant's mental health does not pose any risk to public safety. Whilst the applicant has made a false or misleading statement in failing to disclose his psychological diagnoses and treatment, I accept his evidence of the circumstances as mitigating my discretion under s24(2)(b) of the Act.
14. "The Applicant's individual interest in retaining his licence must be subordinate to the public interest in ensuring public safety": Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 at 69. I accept the Applicant's evidence that he "is a stable, financially secure, socially responsible parent who notwithstanding significant injuries resulting from a motor vehicle accident has secured permanent, valuable and fulfilling part time employment", and that his fitness and propriety is demonstrated by his interactions with and response to the police on all occasions, including an uneventful 12 month good behaviour period. His cultivation and use of cannabis was personal, limited, and a response to chronic pain from a motor vehicle accident, which is now more appropriately managed. His mental health is regulated and has never given rise to a public safety risk. He has extensive knowledge and experience in complying with firearms legislation appropriately. On the evidence I find that he is a fit and proper person within the meaning of the Act.
15. Having considered the intentions of the Act and Regulations and the relevant provisions above, in all the circumstances I find no evidence of any real or material risk to public safety in the Applicant now holding a firearms licence. On the evidence before me, I am satisfied that there is virtually no risk.
16. I consider that the suspensions were appropriately given in circumstances where the Applicant was then subject to criminal proceedings for a proscribed offence, and maintained in circumstances where the Applicant was subject to a good behaviour bond and the Respondent did not have sufficiently current information about the Applicant's mental health. Those factual circumstances have since changed. On the basis of my findings in these reasons for decision, the correct and preferable decision is for the Tribunal to set aside the revocation notice and reinstate the Applicant's licence.

Orders

1. The Notice of Revocation of the Applicant's Category A,B Firearms Licence dated 8 June 2016 is set aside.
2. The Applicant's Category A,B Firearms Licence 406685046 is reinstated in accordance with these reasons.

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: 08 August 2017