The respondent Commissioner revoked the applicant's firearms licences in September 2013. The applicant applied to the Tribunal for review of the Commissioner's decision. At first instance the Tribunal set aside the Commissioner's decision to revoke the applicant's category A, B and H firearms licences, but affirmed the Commissioner's decision in respect of the applicant's category G (firearms collector) licence: Hijazi v Commissioner of Police, NSW Police Force [2014] NSWCATAD 148.
The Commissioner appealed against the decision in relation to the category A, B and H licences. The Appeal Panel upheld the Commissioner's appeal and remitted the matter to the Tribunal for reconsideration: Hijazi v Commissioner of Police, NSW Police [2015] NSWCATAP 82.
[2]
The terms and scope of the remittal
The Appeal Panel made the following orders:
The decision of the Tribunal to set aside the Commissioner's decision to revoke the appellant's category A, B and H firearms licences is set aside.
The decision is to be reconsidered by the Tribunal in accordance with the following direction:
The Tribunal should determine whether to set aside the Commissioner's decision taking into account the matters that it took into account in the decision as well as each of the statutory contraventions whether those contraventions relate to the category A, B and H licences or not.
Hijazi v Commissioner of Police, NSW Police Force [2015] NSWCATAD 252 | Case summary | Zoe
In its reasons for decision, the Appeal Panel also said this, at [49]:
[W]hen reconsidering its decision, the Tribunal should also be mindful of the fact that it made a factual mistake by stating at [38] that, "[W]ith the exception of the non-compliance in relation to the category G licence, Mr Hijazi has been fully compliant with the requirements of the legislation." It made the same mistake at [26] when the Tribunal said that except in relation to the category G licence, "there have been no adverse events." In fact Mr Hijazi had not been compliant with the requirement to have a licence or permit when possessing a prohibited pistol in 2008: Firearms Act, s 7. At [38] the Tribunal considered Mr Hijazi's poor driving record without taking into account that breach. When reconsidering its decision the Tribunal should correct that mistake.
The Commissioner in its written submissions on the remittal argued that there was some ambiguity in the terms of the remittal, given the fact that the Commissioner's original revocation decision had been based on two grounds, the statutory contravention ground (s 24(2)(b) of the Firearms Act 1996) and the public interest ground (s 24(2)(d) of the Firearms Act and cl 19 of the Firearms Regulation 2006). One of the Commissioner's grounds of appeal to the Appeal Panel was that the Tribunal had initially failed to consider the public interest ground but had considered instead a ground that was not raised by the Commissioner, namely whether Mr Hijazi was a fit and proper person to hold a firearms licence (the fitness ground). The Appeal Panel found that the Tribunal, in considering the fitness ground, had asked itself a wrong question, but nevertheless concluded at [40]:
In substance, the Tribunal considered the public interest ground when determining whether Mr Hijazi was a person who could be trusted to possess firearms without danger to public safety or to the peace. Both the public interest ground and the fitness ground are discretionary value judgments. With two exceptions which we will address below, the Tribunal considered all the factual matters on which the Commissioner relied including Mr Hijazi's lax attitude to his obligations.
That extract, taken together with the Appeal Panel's final orders, makes it clear, in my view, that the only ground to be considered on remittal is the statutory contravention ground.
[3]
Mr Hijazi's statutory contraventions
Section 24(2)(b) of the Firearms Act provides that a firearms licence may (but not must) be revoked if, for example, the licensee "contravenes any provision of this Act or the regulations …".
At first instance the Tribunal found that Mr Hijazi:
1. had failed to comply with the safe storage requirements for a category G licence (original decision ("D") at [11], [13] and [22]);
2. had failed to render the collector's pieces (covered by the category G licence) inoperable (D[13]); and
3. had failed to obtain a separate permit for magazines that were stored with the collector's pieces (D[13]).
Those contraventions, in the Tribunal's view, justified the revocation of the category G licence.
However, those contraventions were not taken into account in the Tribunal's consideration of whether the category A, B and H licences should be revoked. It was because of the failure to take them into account in that way that the Appeal Panel set aside the decision in relation to the category A, B and H licences and remitted the matter for reconsideration.
At first instance the Tribunal also found that Mr Hijazi:
1. had continued to possess pistols, unlawfully, after his probationary permit expired (D[14]);
2. had had years of satisfactory, and safe, compliance with respect to his category A, B and H licences (D[26]);
3. understood the requirements for category A, B and H licences and complied with those requirements (D[26]); and
4. except in relation to the category G licence, had had no adverse events (D[26]) and had been fully compliant with the requirements of the legislation (D[38]).
As already mentioned, the Appeal Panel noted at [49] that the finding at 11 is factually incorrect - it is, of course, inconsistent with the finding at 11 - and urged the Tribunal, on remittal, to correct that mistake.
[4]
The seriousness of the contraventions
Mr Hijazi submits that his contraventions of the category G safe storage requirements are at the "lower end of the scale" of seriousness. That is because, he says at [19] of his written submissions, even though the laundry window had no security screen or security bars, and neither of the laundry doors had deadlocks, or were made of solid material or reinforced by steel,
the firearms were still locked in a safe, accessible only by security code and key. The applicant is the only person who knows the combination of the safe and is the only person in possession of the key.
The problem with that submission is that, in respect of a category G licence, clause 34(7) of the Firearms Regulation imposes a specific requirement for a security screen on any window (paragraph (d)), a "dead latch" type lock (or hasp/barrel bolt and padlock) on any door (paragraph (f)), and for all doors to be made of solid material or reinforced by steel (paragraph (e)).
There is also the matter of Mr Hijazi's failure to render the collector's pieces inoperable. The submission on his behalf in relation to that matter is (at [17]):
The applicant verily believed that because he did not fire the pistols and was not in possession of ammunition for the pistols, he was abiding by the requirements and obligations of his firearms licence. He is now aware that a trigger lock needs to be in place and undertakes to ensure this occurs in the future if his firearms licence is re-instated.
He should have known what the "requirements and obligations of his firearms licence" were, but he did not. That is why the Tribunal at first instance found that Mr Hijazi had not informed himself fully as to his personal responsibilities: D[25]. Although he had made declarations to the Commissioner that he "fully under[stood] and [could] comply with the firearms safekeeping requirements of the Firearms Act 1996 and associated Regulation", that was not the case, as he admitted in his own evidence: D[23].
Next is the fact of Mr Hijazi's possession of prohibited magazines. His explanation is that he thought that he was in compliance because he purchased them through a licensed dealer. Again his explanation fails to address why it was that he did not understand his obligations while at the same time declaring that he did.
Although the contraventions in relation to the category G licence are very serious, they were disregarded - "quarantined", as it was put - in the consideration of his category A, B and H licences. The Tribunal is now tasked with considering again whether the Commissioner's decision to revoke Mr Hijazi's A, B and H licences should be set aside, but this time the Tribunal must:
tak[e] into account the matters that [the Tribunal] took into account in the decision [at first instance] as well as each of the statutory contraventions whether those contraventions relate to the category A, B and H licences or not.
[5]
Consideration
First it is necessary to correct the errors made at first instance, and as identified by the Appeal Panel at [49] of its reasons.
1. Mr Hijazi had not been compliant with the requirement to have a licence or permit when possessing a prohibited pistol in 2008: Firearms Act, s 7. His probationary pistol licence expired in July 2008 and he failed to renew it. Nevertheless, he continued to possess the firearms to which the licence related until the police seized the firearms in December 2008, over five months later. Throughout that period Mr Hijazi remained unaware that his probationary licence had expired. He did not identify the breach himself, and the continuing non-compliance only ended when the police informed Mr Hijazi that his licence had expired.
2. The Tribunal at first instance regarded Mr Hijazi's poor driving record as of little significance because of Mr Hijazi's "fully compliant history in the particular regulated activity under consideration". But he had not been fully compliant in the regulated activity, as the breach in 2008 demonstrates.
3. Since he first obtained his driver's licence in 1996, Mr Hijazi has had his licence suspended 11 times. Between 1998 and 2012 he has 13 other traffic offences recorded, including speeding, driving while licence cancelled, and traffic light, negligent driving and seat belt offences. In January 2013, he was fined for driving a vehicle without a number plate or with an unauthorised, obscured, illegal, misleading, altered or incorrectly fixed number plate. These are not insignificant matters; rather, they do demonstrate that Mr Hijazi has a generally lax attitude to compliance with legislation that is aimed at public safety. It was not appropriate for the Tribunal at first instance to effectively disregard that driving history.
Mr Hijazi's contraventions in relation to the category G licence, namely:
1. failing to render the collector's pieces inoperable - breach of ss 20(b) and 7(2)(b) of the Act;
2. failing to comply with the safe storage requirements - breach of cl 34(7) of the Regulation and s 7(2)(b) of the Act;
3. possessing magazines that were prohibited weapons - breach of s 7 of the Weapons Prohibition Act 1998,
when taken into account together with the matters set out in 19 and (2), cast the consideration of whether the Commissioner's decision to revoke Mr Hijazi's category A, B and H licences is the correct and preferable decision in a different light.
Mr Hijazi was lax in his attitude towards compliance with the firearms legislation. When he committed breaches he was completely unaware of them. That is because he had not informed himself as to the very stringent requirements that were imposed upon him once his licences were granted.
It was only when the police informed him, in 2008, that his probationary licence had expired that he became aware that he had been in possession of a pistol, without authorisation, for a period of over five months.
It was only when the police informed him, in 2013, that he was not compliant with the safe storage requirements that he was aware of the fact. In that context it is not enough for him to make his own assessment that the collector's pieces were being safely stored when he was clearly in breach of fundamental conditions for a category G licence. And he did not even know that he was in breach. He had made statements to the Commissioner that he fully understood his obligations. If that is so, then there is no satisfactory explanation for his failure to comply with them.
[6]
Conclusion
Section 24(2) of the Firearms Act is enlivened because the circumstances in subparagraph (b)(ii) (at least) exist - Mr Hijazi has contravened provisions of the Act and the Regulation. As the subparagraph makes clear, it is irrelevant that he has not been convicted of an offence for the contravention.
The question is whether the discretion to revoke Mr Hijazi's category A, B and H licences should be exercised.
I am satisfied that it should. When, in accordance with the Appeal Panel's instruction, all the circumstances are taken into account, including Mr Hijazi's contraventions in relation to the category G licence, his previous breach in 2008 on the expiry of his probationary pistol licence, and his poor driving record, it is clear to me that Mr Hijazi has not demonstrated a sufficient level of responsibility as to be entrusted with a firearms licence in category A, B or H.
The lawful possession of firearms is a privilege, not a right: s 3(1)(a) of the Act. Mr Hijazi has not earned that privilege.
[7]
Decision
The Commissioner's decision to revoke Mr Hijazi's category A, B and H firearms licences is affirmed.
[8]
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
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Decision last updated: 03 December 2015