Harris v Commissioner of Police

Applicable legislation

1. Section 58(1)(b) of the Administrative Decisions Review Act 1997 ("the ADR Act") requires the administrator whose decision is the subject of an application for review to lodge with the Tribunal, within 28 days after receiving notice of the application, a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application to the Tribunal.
2. The Respondent applied to the Tribunal for an order under section 59(1) of the ADR Act that it not be required to lodge a copy of certain documents. The Tribunal may make such an order if, under section 59(2)(b), it considers that, if an application were made under section 64 (Tribunal may restrict disclosures concerning procedures) of the Civil and Administrative Tribunal Act 2013 ("the Tribunal Act"), it would be appropriate to make an order under that section prohibiting or restricting the publication or disclosure of evidence of the document.
3. Section 64(1)(d) of the Tribunal Act enables the Tribunal to make an order prohibiting or restricting disclosure of the contents of a document to some or all of the parties to the proceedings if satisfied it is desirable to do so by reason of the confidential nature of the matter or for "any other reason".
4. A confidential session was held in relation to the application under section 59(1) of the ADR Act. Following that confidential session the application under section 59(1) of the ADR Act was granted and orders were made that the Respondent did not have to serve some material which had been filed with the Tribunal on a confidential basis. Accordingly, that material has not been provided to the Applicant. Nevertheless, I have taken that material into account.
5. Section 9 of the ADR Act provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred on the Tribunal by section 75 of the Act. The Tribunal's jurisdiction includes review of decisions by the Commissioner of Police to refuse to issue a licence.
6. This application is made under section 75 of the Act and the ADR Act.
7. The Act sets up a scheme to license people to possess and use firearms. One of the underlying principles of the Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms.
8. Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation. The principles and objects of the Act confirm that possession and use of firearms is a privilege that is conditional on public safety. Section 3(1) provides: (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 (c) to facilitate a national approach to the control of firearms.
9. Section 11 of the Act provides for the issuing of licences. Section 11(3) provides: (3) A licence must not be issued unless: ... (5A) A licence must not be issued to a person if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that: (a) … (b) the issuing of the licence would be contrary to the public interest. ...
10. The Tribunal's function in relation to applications before it is set out in section 63 of the ADR Act: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
11. The issue in the present case is whether the correct and preferable decision is to affirm, vary or set aside the Commissioner's decision and, specifically, whether or not it is contrary to the public interest for the Applicant to hold a licence under the Act.
12. The standard of proof applying in these proceedings is the civil standard. That is, the balance of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party.
13. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 [at 23].
14. The discretion must be exercised keeping in mind the activities which are authorised by a licence/authority/certificate etc. under the Act. Accordingly, the objects and purposes of the Act are relevant.

The Public Interest

1. The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence: "25 The "public interest" is an inherently broad concept giving the appellant 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 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."
2. The 'public interest' allows a consideration of 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: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.
3. "Public interest' embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to 'the 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 decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.

The material before the Tribunal

1. The Applicant relies on his own evidence and his solicitor, Mr O'Connell made submissions on his behalf. The Applicant also relies on a character reference by Robert and Gorgia Tritten who are Directors of R&R Outfitters Australia P/L and who indicated that they would be prepared to offer the Applicant a position as a safari guide with their company.
2. The Applicant also relies on a TAFE NSW transcript of academic record supporting his evidence that in 2019 he undertook a TAFE course in "Wild Game Harvesting" in which he achieved a certificate of competency. His evidence is that he did this to better educate himself on the handling of firearms and firearm safety and gain employment as a professional kangaroo harvester.
3. The Commissioner relies on the material provided pursuant to section 58 of the ADR Act; the material filed on a confidential basis pursuant to the order made under section 59 of the ADR Act; as well as written and oral submissions.

The Respondent's case

1. The Respondent has identified the following issues as relevant to the matter before the Tribunal: 1. the Applicant's criminal history; 2. the Applicant's long history of traffic infringements which shows repeated breaches of traffic laws; and 3. the Applicant lacks understanding of his obligations as a firearms owner and what he is permitted to do if licensed for "recreational hunting/vermin control";

The Applicant's criminal history

1. As noted above, in May 2009, the Applicant was convicted of drug and firearm related offences. The Applicant entered a guilty plea to the charges: 1. supply prohibited drug > indictable quantity. He was sentenced to two years imprisonment, suspended on entry into a bond and 2 years supervised probation; 2. possession/use of a prohibited weapon, for which he was fined $3,000.
2. During the execution of a search warrant in December 2006, police located unsecured firearms. Police also located a silencer which the Applicant admitted was used when shooting rabbits.
3. In November 2007 the Applicant was involved in an altercation in which he was attacked whilst drinking in the bar of a hotel in Tamworth ("the Tamworth hotel incident"). During the incident a glass in the Applicant's hand struck one of the attackers in his eye region. It is understood that this action resulted in the person losing the sight in his left eye.
4. The Applicant was arrested and charged with an offence of recklessly cause grievous bodily harm. The Applicant claimed that he had been acting in self-defence. The charge was ultimately dismissed in November 2008.
5. The Respondent also notes that in November 2007, the Applicant made a report to Police that he had witnessed another person in a car yell at him "I'm going to kill you" and allegedly made a cutting motion with their hand across their neck. The Applicant thought that these threats may have related to the Tamworth hotel incident.
6. Ms Norquay noted that the Applicant has provided only one character reference and that reference does not express any awareness of the Applicant's criminal history. Accordingly it should be given little weight. She also noted that while it has been submitted that the Applicant accepts his criminal antecedents and does not shy away from taking responsibility for his past actions, this is not stated in the Applicant's own evidence, nor does the Applicant express any remorse for the conduct for which he was convicted.

The Applicant's long history of traffic infringements

1. The Respondent has noted the Applicant's extensive history of traffic infringements dating back to 2003. These included: 1. in September 2003 the Applicant received an infringement for exceeding the speed limit by more than 15 km/h but not more than 30km/h whilst driving a motor vehicle; 2. in March 2004 - not ensure a modification was certified as complying with standard; 3. in September 2004 the Applicant collided with another vehicle when attempting to cross an intersection. An ambulance was called due to there being a pregnant passenger in the other vehicle, and both vehicles were damaged. The Applicant received an infringement for negligent driving; 4. in August 2007 - not comply with conditions of provisional licence (not display P signs) as required; 5. in August 2007, December 2014 and September 2020 - drive using hand held mobile phone; 6. in June 2008 - exceed speed limit by not more than 15km/h whilst driving a motor vehicle; 7. in January 2009 - use vehicle not comply with standard - defective equipment; 8. in January 2009 - class A vehicle not display registration label; 9. in August 2009 - not comply with conditions of learner licence (not display L signs) as required; 10. in June 2010 - exceed speed limit by not more than 10km/h whilst driving a motor vehicle; 11. in August 2010 and November 2013 - exceed speed limit by more than 20km/h but not more than 30km/h whilst driving a motor vehicle; 12. in October 2010 - driver of Class A vehicle with expired registration label; 13. in March 2011 - use vehicle not comply with standard: tail lights; 14. in 21 November 2016 - make unlawful U-turn. At the time, the Applicant was towing a boat and boat trailer and undertook the U-turn in a spot clearly marked that U-turns were prohibited except for Police, NRMA, RMS and Emergency vehicles; and 1. in June 2020 - exceed speed limit by more than 10km/h.
2. As a result of these infringements, the Applicant's driver's licence was suspended in 2009 and 2010. He has received seven demerit point warning/courtesy letters in relation to his offences, the most recent of which was issued in January 2021.
3. Ms Norquay, solicitor for the Respondent, submitted that the Applicant's extensive history of traffic infringements, some of which are repeated, demonstrate a disregard for public safety and his own safety, as well as a disregard for a regulatory scheme aimed at ensuring public safety, and would cause the Tribunal concern for the Applicant's ability to comply with regulations under the firearms licensing regime.

The Applicant's understanding of his obligations

1. As noted, in December 2006 Police located two firearms and ammunition which was not safely secured. The Applicant was also found to be in possession of a silencer - a prohibited weapon which he was not authorised to possess. The Respondent submits that the Act's safe-keeping requirements are fundamental, as those requirements go to the crux of the principles and objectives of the Act. Further, even where safe keeping contraventions lie at the lower end of the scale of seriousness, they can evidence an attitude that is still significant when determining whether a person should have a licence.
2. Ms Norquay submitted that the contraventions were serious and significant, and that
3. this is reflected in the penalty that was imposed by the Court. She contends that the Applicant's behaviour demonstrates a clear disregard for the strict requirements of the Act and the Regulations and suggests that the Applicant will not be capable of complying with those requirements in the future.
4. She further submitted that the public interest requires that all licensees be aware of, and comply with, the legislative requirements. 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: see my comments in Lee v Commissioner of Police Lee v Commissioner of Police, NSW Police Force [2020] NSWCATAD 144 at paragraphs [96]-[98]; Wiltshire v Commissioner of Police, NSW Police Force [2005] NSWADT 75 at paragraph [25].
5. Ms Norquay also referred to comments by the Appeal Panel in Masterson v Commissioner of Police [2017] NSWCATAP 206 at paragraph [133]: In our view, the possibility that the holder of a licence may not comply with the law is a relevant matter in exercising a discretion to revoke a license on public interest ground. As stated above, the test is very wide and in matters of public safety and the possession and use of firearms, it could hardly be suggested to the contrary.

Genuine reason

1. Ms Norquay noted that the Applicant provided the genuine reason of "recreational hunting/vermin control" on his application for the licence. However, in his evidence before the Tribunal he indicated that he was seeking a firearms licence with a view to undertaking work as a kangaroo harvester and to undertake seasonal work as a guide for R&R Outfitters. Ms Norquay submitted that it is an offence under section 7A(2)(a) of the Act for a person to use 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. Therefore, she submitted, if the Applicant were to be issued with a licence, he would only be authorised to use firearms for the purposes of recreational hunting/vermin control, not as a professional contract shooter or for business purposes.
2. With respect to the TAFE course that Applicant had undertaken, Ms Norquay noted that none of the courses that he has completed relate to firearms handling or safety, but concern general overviews of the game meat industry.

Confidential information reports

1. The Applicant is subject of a number of Confidential Information Reports.
2. [NOT FOR PUBLICATION]
3. [NOT FOR PUBLICATION]
4. The Respondent submits that any firearms licence is a privilege, not a right, and the enjoyment of that privilege is conditional upon the overriding need to ensure public safety. Where there has been, or is, a possibility of a threat to the public's 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 paragraph [21]. The Applicant's desire to maximise possible future career options does not outweigh the need for public safety: Museth v Commissioner of Police, NSW Police Force [2014] NSWCATAD 98 at paragraph [34].
5. The Respondent contends that when the Tribunal considers the Applicant's conduct as a whole it could not conclude that there is virtually no risk to the public's safety if the licence were granted.

The Applicant's case

1. The Applicant has provided an affidavit. He appeared at the hearing and was cross-examined.
2. The Applicant believes that he is not a danger to public safety if permitted to hold a firearms licence. His evidence is that he has had firearms as a part of his life since the age of five when his grandfather would take him out hunting and working on the farm. He obtained a minors permit when he was twelve which permitted him to use category A and B firearms under supervision. He has held a licence for target, recreational hunting and rural occupancy. For a period of three or four years he would carry a rifle on his grandfather's property for vermin control, to manage wild dogs and to put down sick cattle.
3. Over the last 20 years he has been employed by five different professional kangaroo harvesters, undertaking a variety of roles and has been in the presence of firearms during those times.
4. In 2019 he undertook a TAFE course in "Wild Game Harvesting", in which he achieved a certificate of competency. He stated that he undertook the course to better educate himself on the handling of firearms and firearm safety and gain employment as a professional kangaroo harvester. He conceded that he had not undertaken any firearm or firearm safety related subjects as part of that course but stated that in order to undertake those components of the course he would require a firearms licence.
5. He wishes to be able to obtain work as a professional kangaroo harvester and requires a licence to achieve that. He understands that if he obtains a licence for the genuine reason of "recreational hunting/vermin control" he will need to seek to amend it to allow him to undertake employment as a professional kangaroo harvester.
6. He said that he has been offered a position with R&R Outfitters which would involve travel to the Northern Territory for seasonal work as a guide. In order to obtain that position he would need to hold a firearms licence.
7. The Applicant conceded that he had entered a guilty plea in relation to the most recent charges. He does not dispute his record of traffic infringements but denied that he has been involved in drug or firearms related offences since he was charged with the offences for which he was convicted.
8. Mr O'Connell, solicitor for the Applicant, provided written and oral submissions. He does not dispute that there have been matters before the Court both in regards to criminal offences and improper storage of firearms. However he submitted that these matters occurred over a decade ago and in the time since then the Applicant has served the requisite penalties and has had no further incidents.
9. He accepted that the Applicant driver's licence was suspended in 2010 but he submitted that there have been a limited number of infringements since then.
10. Mr O'Connell noted the significant period of time since the Applicant last came to the attention of the Police for any criminal matters. He also noted that the remainder of his involvement with the Police has come about through traffic infringements. He submitted that if there is any risk to the community associated with granting the Applicant a firearms licence, it is at the lowest end of the scale.

Consideration

1. In this case the Respondent does not contend that the Applicant is not a fit and proper person to hold a licence, but rests his position on section 11(7) of the Act. The issue in this case is thus whether the grant of a licence would be contrary to the public interest.
2. I have been referred to Tribunal decisions that relate to the Act and the review of decisions by the Respondent to refuse firearms licence applications. The law is largely settled in regard to applications of this kind.
3. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act. The underlying principles stated in section 3(1) of the Act emphasize that firearm possession and use is a privilege conditional on the overriding need to ensure public safety.
4. The licensing regime is not about punishment. It is about protecting the public. Persons who have access to firearms must act responsibly. The principal issue in this matter is whether or not there is a risk to the safety of the public, including the Applicant, if the Applicant is permitted to possess firearms.
5. It is not possible to predict with absolute certainty where the risk lies in any particular situation. As has been frequently noted, 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. The Tribunal must make decisions that are consistent with a need to reduce any risks to a minimum.
6. 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: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110. Risk to the public includes risk to the Applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.
7. Where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm.
8. The fact that numerous reports have been made in relation to an applicant is not conclusive. Where allegations have been made against him but no charges brought he has not had the opportunity to test them. Nevertheless, conduct can be taken into account even where no conviction has been recorded.
9. Any past and present conduct that may be relevant in deciding whether the Applicant is a person who deserves the privilege of holding a firearms licence must be reviewed. Any propensity towards offending against the law must be regarded as of crucial importance. In this regard I have considered all the material presented by the parties, including the confidential evidence on which the Commissioner relies, and I have taken account of the competing considerations.
10. The Applicant denied that he had been involved in criminal conduct other than that for which he was charged and convicted. He entered a guilty plea to the charges brought against him. However, a guilty plea is only an admission to the facts that comprise the elements of the offence. It cannot be taken to be an acceptance of all the facts alleged by the prosecutor. A guilty plea does not admit non-essential ingredients of the offence: R v O'Neill (1979) NSWLR 582 at 588
11. The Respondent submitted that there were three main areas of objection to the Applicant being issued with a licence: 1. the Applicant's criminal history; 2. the Applicant's long history of traffic infringements; and 3. the Applicant lacks understanding of his obligations as a firearms owner.
12. There can be no doubt about the Applicant's criminal history. Notwithstanding the fact that he has not expressed remorse before the Tribunal I accept that he has previously indicated that to be the case. The conduct for which he was convicted occurred over a decade ago and there have been no further incidents of a similar nature.
13. In my view, the fact that he has not repeated the conduct for which he was convicted indicates his preparedness to learn from his experience and adapt his behaviour in an effort to comply with his legal obligations. His evidence is that he moved away from the Tamworth area and essentially started a new life. In my view, this has significantly reduced the risk that the offending conduct would be repeated in the future.
14. I agree with the Respondent that the Applicant's long history of traffic infringements demonstrate a disregard for public safety and his own safety, as well as a disregard for a regulatory scheme aimed at ensuring public safety. However, I also agree with the Applicant that there have been a limited number of infringements since the suspension of his driver's licence in 2010.
15. In my view, the circumstances of this matter can be distinguished from those that I considered in Lee v Commissioner of Police. In that matter I considered that Mr Lee's extensive history of traffic infringements was such that I could not be satisfied that similar conduct will not be repeated or that he may similarly disregard aspects of the firearms regulatory scheme. In the present matter I do not have those same concerns.
16. I am also not concerned in regard to the Applicant's understanding of his obligations as a firearms owner. I note that he has undertaken a TAFE course in "Wild Game Harvesting" and that if he is granted the licence he intends to undertake further courses to better educate himself on the handling of firearms and firearm safety. In order to undertake those courses he would require a firearms licence. He is also aware that if he were licensed for "recreational hunting/vermin control" he would be unable to work as a professional kangaroo harvester without a variation to the licence.
17. It is necessary that I form a view in regard to the risk to the public safety if the Applicant is granted a firearms licence. I have to decide whether there is a real and appreciable risk to the safety of the public, bearing in mind all the relevant circumstances. The risk must be assessed by reference to the Applicant's prior conduct and must take account of the circumstances in which that conduct occurred and any relevant changes that have occurred since.
18. As I have also indicated, a significant period has passed since the Applicant's conduct which lead to his convictions. Since that time, he has moved towns and it appears that he has changed his lifestyle. He has realistic intentions in regard to potential future employment and the place that a firearms licence might play in his plans. The Applicant's desire to pursue a particular sport, or to maximise possible future careers options does not outweigh the need for public safety. However it does indicate a level of maturity that can be contrasted with that suggested by his previous conduct.
19. In the circumstances I am not satisfied that there is any real and appreciable risk that the Applicant will not comply with the firearms legislation if the licence is granted.
20. As I stated in Wiltshire, 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. A licence should not be granted unless the Tribunal is satisfied that an applicant is able to meet those standards. In the circumstances of this matter I am satisfied that the Applicant is able to meet the standards and therefore I do not consider that it would be contrary to the public interest to grant the licence.
21. In my view, the correct and preferable decision is that the licence should be granted.

Orders 1. The decision under review is set aside. 2. In its place, the decision is made that the application by Mr Scott Harris for the grant of a licence under the Firearms Act 1996 is granted.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 May 2021