In his Statement the Applicant said:
I am just like everyone else and I feel shame and embarrassment for what I have done in my younger years, and I always will, no excuses. I have matured over the years. I have never been unemployed and always did the best I could with what I had for my family. I now have a successful business employing eight local people and I am a good local citizen.
My business is a takeaway food shop - fish and chips, hamburgers, schnitzels, rolls, fresh made sandwiches, slices, cakes, bread, milk, papers etc. I am open six days a week, 6am till 4pm Monday to Thursday, Fridays 5am till 7.30pm, Saturdays 6am - 2pm. Sunday is cleaning day. On Tuesdays, I provide the shop to up to 10 ladies that come in at 10-2pm for the group sewing day. I provide them a discount lunch and coffee. I also run a smoko van which supplies the local industrial area. I have nine people on my payroll and I have been in operation for four years. The shop also sponsors sporting groups in town as well as charity to those who can't afford a decent meal.
I was employed before that at Murrumbidgee Irrigation for thirty years and before that for three years at A.J. Bush and Son's as a maintenance engineer. My apprenticeship was at the local rice mills workshop as a 1st class welder/fitter. I have been working since I was about thirteen and have never collected unemployment benefits.
…
The reasons that I would like a gun licence is that I am the owner of rural land and I run a small herd of cattle and sheep from time to time. Animal welfare is a big priority to me. I would also like to join my friends who go hunting for vermin control, and I would like to take up target shooting as a sport. I was going to join the target club in town, but I kept getting my license knocked back, so I haven't as yet. Also, it's a big advantage if you get a job on a farm to have a gun Licence.
Under cross examination the Applicant agreed that he had a history of arguing and intimidating people, made mistakes in the heat of the moment, was hot headed and struggled to maintain control when he was angry or drunk. He agreed that the seven incidents demonstrated a lengthy record and that he had a catalogue of driving offences. He gave some context in re-examination for his conflict with Murrumbidgee Irrigation of being a union representative for over 25 years and being accused of bullying after he resisted a 20% pay increase for management in the context of an increase of 0.9% for staff. He agreed that his actions were borne out of frustration.
[2]
Character references
The Applicant provided the Tribunal with 5 character references. None of the referees were required for cross examination. Each of the referees addressed their reference to this Tribunal and specifically stated that they had reviewed the s 58 documents and were providing the reference in relation to the refusal of the Applicant's firearms licence (or "shooter's licence" or "gun licence"). Each of the referees had known the Applicant for more than 30 years. With the exception of his ex-wife, each of the referees lived locally to the Applicant in or near Leeton and had regular interactions with him.
Janene Maree Young, formerly Ms Heness, is the applicant's ex-wife and the mother of his 2 adult children. She was the protected person subject of the Applicant's first and second AVO and was involved in the altercation which became the subject of the third AVO. She provided contextual evidence regarding the AVOs granted against the Applicant. She stated that the AVO involving her had been obtained by the local police and she had not requested it. She stated that the Applicant complied with the AVO, never held it against her, and expressed remorse and regret regarding his actions. She said the other AVO was instigated by a neighbour vexatiously and that the Applicant had only sought to protect her and their children at the time from the neighbour's "unrelenting torment… towards us". In relation to the Applicant's suitability to hold a firearms licence, she stated:
I have no hesitation in supporting Grant's application for a gun licence, which as he has stated, is for use on his rural property. I have no concerns regarding him being granted such a licence and am aware that he has been refused that and is appealing. I am offering my support for his application.
Grant is a good and loving father to our 2 children, a caring, supportive son to his mother Judy Heness, and to his sister Michelle (and is also very supportive of Michelle's daughter). Grant has proven himself to be a good provider for his family in the town that he has lived in his entire life, and is respected by the community and customers within his take-away business in town.
Scott Grigg of Grigg Agricultural Services has known the Applicant since they were both teenagers, personally and professionally. Mr Grigg was a signatory to the Applicant's firearms application. In relation to the s 58 material, Mr Grigg stated:
I have been in this town for most of my life and have been aware of most of it. Not to mention conversations I have had with Grant about this. We all learn by our mistakes and in my opinion, I believe Grant has taken away from these circumstances valuable lessons. Making him a better person.
In the business that he has opened I see this. He sponsors the Leeton Rugby League, the Mens Shed, Can Assist, Lions Club, he is president of the Greenies Football club and is generous to those down on their luck and to his staff, one of which is my daughter in law…
Grant has always been straight up with me in any dealings that we have had, as a water bailiff for Murrumbidgee Irrigation, as business owners and as a friend.
…
I find Grant to be honest, passionate, and kind, always willing to help the next guy in line. I know he has made mistakes and more importantly so does he. He is a stable hard working business owner trying to enrich his community, the best he can.
Matthew Holt, Councillor elect at Leeton Shire Council stated:
I have known Grant Heiress for more than 40 years, as a good family friend, sporting team member and as a business operator.
Grant has always been a hard working member of the Leeton community. He is an honest and fair man who considers people less fortunate than himself, evidenced in his generosity displayed within his Business when dealing with customers who are struggling financially.
Grant is a man who upholds the values of family and has always been a good provider for his children. He also shows this quality to his mother, sister and his niece.
Grant has the courage of his convictions and speaks out when he witness's injustice's in everyday life.
As an older man Grant shows respect to the Law and its expectations on the individual.
I have perused the Section 58 Bundle and acknowledge its contents. I believe in redemption and have witnessed this in Grant in recent years, evidenced more so in the way Grant conducts his business dealing with the public. Grants welcoming demeanour and care for less fortunate people has created a popular business that is frequented by the many on a daily basis.
Grant understands that to be a contributing member of the community he must respect the laws and rules that society imposes.
All the requirements to own and use a firearm are foremost in Grants mind and will be exercised whenever he engages in any shooting activity.
I am aware of Grants appeal before the Tribunal for a Hunting & Sporting Firearm's Licence and would urge the Tribunal to reconsider its original decision and grant him appro
Murray Stivens provided a reference dated 14 March 2023. He stated:
I have known Grant Heiress since he worked for Murrumbidgee Irrigation for 30 years. Grant then opened his shop on Brobenah Road, The Leeton Tourist Supermarket over four years ago and I've had many cups of coffee talking to Grant over the years. I have read the section 58 bundle and I adjudge its contents. I am aware of his past problems when he was a younger, and he has changed his attitude since then.
I have owned a farm at Brobenah for over 30 years, and then a small irrigation farm on the edge of Leeton for 20 years. I was in the bushfire brigade, and help positions as Secretary/Treasurer, Wee Captain and Captain for about 20 years. I have been to many fires out of area in New South Wales and Victoria as crew leader.
I have found Grant to be a good business man and willing to help anybody in Leeton. l feel Grant has learnt the errors of his ways when he was young, and he's an upstanding member of the community.
I was hoping you can justify him holding a gun license for his recreational activities. I know it's a big responsibility owning guns these days and I know that Grant is up to the challenge.
Hoping this letter makes your job a bit easier to grant him a shooters license.
Bill Arnold, Managing Director of Hotondo Homes, provided a reference dated 18 March 2023. He stated:
l have known Grant William Heness for more than 40 years and have been associated with him and his family.
I have played Rugby league with Grant and also have Coached him in the Under 18s, Reserve Grade and First Grade teams.
l have been involved with Grant in the sporting circle for many years and have watched him develop into a good business owner in the later years.
We have been involved in many different committees over the years in different community events.
We all make mistakes in life and often they are in the heat of the moment as are a lot in Grant's.
I have read the Section 58 Bundle and l understand its contents.
I strongly believe Grant has left all of that type of behaviour behind him and you can now clearly see this in his action in his current business. He welcomes people into his shop and looks after the less fortunate people regularly. He has created a popular meeting place where people, of all ages and walks of life, are welcomed in a happy and friendly matter.
Grant is a caring, honest and respected member of the Community and will always go out of his way to help someone less fortunate than himself.
As I stated earlier Grant has made some mistakes but has now realised this as he has moved forward in life.
I have no hesitation in writing this reference for Grant Heness.
[3]
Consideration
The Tribunal accepts the Respondent's evidence of the Applicant's history of threatening behaviour in circumstances where the Applicant accepted in cross examination that he had a history of arguing and intimidating people, made mistakes in the heat of the moment, was hot headed and struggled to maintain control when he was angry or drunk. Significant weight is placed on each of the incidents, with the exception of the incident in 2020, upon which no weight is placed in circumstances where there was no verbal or physical interaction between the Applicant and the Murrumbidgee Irrigation employees. An offensive gesture from a distance is not, in the Tribunal's opinion, indicative of threatening behaviour.
The Applicant's incidents of threatening behaviour stretch from 1999 to 2018. The Applicant's evidence that this threatening behaviour is a cause of shame and embarrassment to him does not demonstrate that he has, in fact, changed that behaviour. However, the evidence of his character references goes a fair way to demonstrating that he is a changed person. Each of those references comes from a referee who has known the Applicant for decades, knows the specific details of his history of threatening behaviours from the Police perspective (as expressed in the Section 58 material) and has vouched for the Applicant's character in circumstances where they have acknowledged the issue in question is the granting of a firearms licence. The Respondent did not require any of the referees for cross examination. In the circumstances, the Tribunal gives each of the references significant weight.
The Applicant answered questions in cross examination with candour and freely acknowledged matters which were against his own interest, including that the individuals who had reported his behaviour to the police would have felt threatened or intimidated. The only charge and conviction in the Applicant's history occurred over 20 years ago. The three AVOs to which he was subject, 24 to 18 years ago, are tempered by the evidence of his ex-wife, whose evidence significantly reduces the weight which the Tribunal places upon them. The Applicant and his ex-wife have been divorced for around 20 years and now have a harmonious, if distant, relationship. The Tribunal places significant weight on her evidence supporting the Applicant's expressed remorse and changed character.
An AVO taken out against an individual has the effect of a 10 year mandatory exclusion period from obtaining a firearms licence, pursuant to s 11(5)(c) of the Act. The last of the Applicant's exclusion periods concluded in 2015. In the 8 years since that time, the Respondent recorded two incidents involving the Applicant in which it was alleged he engaged in threatening behaviour. Having discounted the 2020 incident (as discussed above), the remaining incident occurred several years ago in 2018, in a particular set of circumstances, in the context of the acrimonious termination of the Applicant's employment. The Applicant acknowledged his conduct and expressed regret for his actions, which the Tribunal accepts. There is no evidence of any further adverse interactions between the Applicant and Murrumbidgee Irrigation's employees (former or present), or anyone else, in recent years. All the evidence suggests that there is no real possibility of the Applicant's past threatening behaviour reoccurring in the future.
The Applicant's evidence, and that of his referees, demonstrate that he has been operating a successful business in his local community for the last few years, employs a number of local residents and provides charitable support to his community. By all accounts, he is well known and well respected within his community.
The Applicant's traffic history includes 8 minor infringements in the course of a 41-year driving record. The Tribunal agrees with the Applicant's submission that this does not demonstrate a serious disregard for traffic rules. No weight is placed on the Applicant's traffic history in the circumstances of these proceedings.
The Tribunal is satisfied on the evidence before it that the Applicant has demonstrated that he has a genuine reason for obtaining a firearms licence. There is no evidence before the Tribunal that the Applicant lacks honesty, knowledge, or the ability to safely hold a firearms licence.
Considering all of the evidence provided to the Tribunal, with significant weight placed on the unchallenged evidence of his ex-wife as to the Applicant's character and her confidence in his suitability to hold a firearms licence, I am satisfied that the Applicant can be trusted to have possession of firearms without danger to public safety or to the peace. I find that he is a fit and proper person to hold a firearms licence within the meaning of s 11(3)(a) of the Act.
Whilst the Applicant does have a history of threatening behaviour, this is acknowledged and regretted by the Applicant and this Tribunal accepts the evidence of his referees to the effect that he has learned from those mistakes, is a better person now, and is a respected member of the community. Considering the passage of time, in the circumstances the Tribunal declines to exercise its discretion pursuant to s 11(7) of the Act.
The correct and preferable decision is to set aside the Respondent's decision and grant the Applicant's Category AB Firearms Licence pursuant to s 11 of the Act.
[4]
Orders
1. The respondent's decision is set aside.
2. The Applicant is granted a category AB firearms licence.
[5]
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: 02 August 2023
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.
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,
…
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].
Consistent with the principles and objects referred to above, s 11 of the Act relevantly provides:
(1) The Commissioner may issue a licence in respect of an application, or refuse any such application.
…
(3) A licence must not be issued unless:
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;
…
(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.
The issue of a licence is itself a discretionary act, as the Commissioner "may" issue one. The later provisions in s 11 provide, without exception, prohibitions or limitations on the issue of a licence, reflecting the principles and objects in s 3 of the Firearms Act. Importantly, if a person cannot satisfy s 11(3)(a), the Commissioner "must" not issue the licence.
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."
The public interest encompasses broader considerations beyond public safety. It is an inherently broad concept and is designed to give the broader interests of the community priority over private interests. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, it was stated at 681:
The purpose of the reference to public interest is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.
In Director of Public Prosecutions v Smith (1991) 1 VR 63 (Smith) the Court observed:
The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.
In determining whether the issue of a licence is contrary to the public interest, the Tribunal is entitled to take into account criminal conduct, whether or not that conduct has resulted in an individual being charged or convicted of criminal offences, or whether the particular offences charged have not been proven or have been dismissed: Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31 at [62] to [64]. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70 at [30].
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.
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].
Fit and proper person
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. "
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."
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."
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."
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.
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].
In Saxby v Commissioner of Police [2021] NSWCATAD 275 at [14] the Tribunal described the public interest in this context as informed by the underlying principles and objects of the Firearms Act and the strict controls under the Firearms Act for licensing.
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.
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."