appellant. The Commissioner's decision refusing a category AB firearms licence is set aside; a category AB firearms licence is to be issued to the applicant.
Key principles
Where the Commissioner relies on s 11(7) of the Firearms Act 1996 (NSW) to refuse a firearms licence on public interest grounds, a merits review tribunal must assess whether...
The 'virtually no risk' formulation associated with Ward v Commissioner is a guide to the seriousness of the public safety threshold but must not be applied mechanistically as a...
An applicant's provision of incorrect answers on an application will engage s 70 (making materially false or misleading statements) only if the tribunal is satisfied the...
Issues before the court
Whether issuance of a category AB firearms licence to the applicant would be contrary to the public interest under s 11(7) of the Firearms Act 1996...
Whether the applicant breached s 70 by making materially false or misleading statements in his firearms licence applications.
What is the tribunal's function on merits review of the Commissioner's decision under the Administrative Decisions Review Act 1997 (NSW)?
Plain English Summary
The Tribunal reviewed the Police Commissioner's refusal to grant Mr Hook a category AB firearms licence. The refusal rested on public interest concerns because of a 2008 assault/AVO, serious youth driving offences including two high-speed pursuits, some later traffic infringements, and claimed false answers on licence applications. After hearing evidence (including a psychologist's report and references) the Tribunal found the applicant had matured, showed genuine remorse, and did not knowingly provide false information. Balancing the public safety risks against the evidence of rehabilitation and the practical utility of firearms in rural employment, the Tribunal concluded issuance would not be contrary to the public interest. The Commissioner's decision was set aside and a licence ordered.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,877 words · generated 30/06/2026
What happened
Cited legislation
3 cited instruments linked from this judgment.
Mr Matthew JG Hook applied for a category AB firearms licence (long arms) for recreational hunting and vermin control. He had earlier applied in 2013 and been refused because he had been subject to an apprehended violence order (AVO) within the prior 10 years; that statutory disqualification prevented issuance until 4 January 2020 [REASONS FOR DECISION 2]. He re-applied on 2 October 2019. The Commissioner refused that application on 29 April 2020 principally on public interest grounds under s 11(7) of the Firearms Act 1996 (NSW), noting: (i) a 2008 common assault conviction and resulting AVO; (ii) a history of serious driving offences including two high-speed police pursuits in 2008 and 2009 that led to multi-year disqualifications; (iii) more recent traffic infringements and a warning about knives; and (iv) that the applicant had given incorrect answers on his licence applications (alleged to be materially false) [REASONS FOR DECISION 3; Respondent's submissions 1-9].
Hook sought merits review in the NSW Civil and Administrative Tribunal. At the hearing the Tribunal received oral evidence from Hook, a sister, and a clinical psychologist, together with documentary material including the s 58 documents from police. Hook acknowledged youthful, serious misconduct but gave evidence of substantial rehabilitation: service with the Rural Fire Service (RFS) since 2015, steady employment on large rural properties, completion of a traffic offender intervention course, a psychological report showing remorse and maturation, and multiple supportive references. He explained the incorrect application answers as carelessness or misreading, not as deliberate deception [Mr Matthew Hook evidence; Mrs Nita Sunnucks; Mr Michael Kruger-Davis].
The Tribunal concluded that, on the totality of the evidence, issuing a licence would not be contrary to the public interest and ordered that a category AB licence be issued [Conclusions 1, 4; Orders].
Why the court decided this way
The decision turns on a merits assessment of the public interest discretion in s 11(7) of the Firearms Act read against the statutory objects emphasising public safety (s 3(1), s 3(2)(d)) and the licensing tests in s 11(3)–(4). The Tribunal applied established principles for merits review: s 63 of the Administrative Decisions Review Act requires the Tribunal to decide whether the original decision was the correct and preferable one on the merits, considering the material available to the original decision-maker together with any later material (Drake; McDonald) [Consideration 1–2].
Key elements of the Tribunal’s reasoning:
Public safety is paramount and the statutory tests govern whether a licence is issued, but earlier case-law statements (notably the “virtually no risk” phrasing from Ward) must not be treated as rigid preconditions over the statutory text. The Tribunal emphasised that the "virtually no risk" language should not be used mechanistically as a gloss on the statutory tests; tests must be applied directly and contextually [The public interest 3–4].
The Tribunal made a balanced, evidence-based risk assessment, rejecting a view that an applicant must prove an almost absolute negative. It accepted that only real and appreciable risks matter, not fanciful or theoretical possibilities (see Webb cited approvingly) [The public interest 5–6].
In Hook’s case, the Tribunal weighed the severity and recency of past misconduct against a decade of evidence of reformation: RFS service, steady employment and family responsibilities, a psychologist’s report concluding remorse and reduced risk owing to maturation of executive function, and consistent references. The Tribunal accepted that the worst misconduct occurred when Hook was 18 and that his driving and other behaviour have substantially improved since [The applicant's record 1–4; Psychologist's report 1–6; Conclusions 1].
On the allegation of a s 70 false/misleading statement, the Tribunal found Hook’s incorrect answers resulted from carelessness and inexperience, not deliberate deception. That meant s 70 was not engaged because the fault element required knowledge or intent to mislead [The applicant's record 16].
The Tribunal also acknowledged the public interest in primary producers having access to long arms for vermin control and humane dispatch of injured stock, which provided an additional counterweight in favour of issuance (though occupational need was not decisive) [Conclusions 2–3].
Based on that overall assessment the Tribunal concluded issuance would not be contrary to the public interest and set aside the Commissioner’s decision [Conclusions 4; Orders].
Before and after state of the law
Before: The statutory framework under the Firearms Act requires the Commissioner to be satisfied of fitness and that issuance will not endanger public safety (s 11(3)), and gives a discretionary public interest refusal power under s 11(7). Case law had developed language like Hennessy DP’s "virtually no risk" formulation in Ward, which some tribunals had treated as a demanding threshold for fitness or public interest findings.
This decision: The Tribunal reiterated that the statutory tests remain the controlling standards and cautioned against treating Ward’s "virtually no risk" phrasing as a rigid gloss on the statutory tests (citing AML for that caution) [The public interest 4]. It affirmed a balanced, contextual, evidence-based approach to public interest and risk assessment in firearms licensing disputes: consider all relevant facts (character, attitudes, prior conduct, rehabilitation, occupational need) and focus on real appreciable risk, not theoretical possibilities (Webb, Martin). The Tribunal applied these principles to set aside the Commissioner’s refusal and order a licence.
After: The decision is consistent with an established line of authorities that the public interest test requires nuanced balancing and that tribunals can overturn Commissioner's discretionary refusals where the evidence shows rehabilitation and low present risk. It reiterates that false answers on applications attract s 70 sanctions only where there is knowledge or intent to mislead. The case is a useful exemplar: a serious but historical pattern of misconduct does not inevitably bar licence issuance if evidence shows durable rehabilitation and low current risk.
Key passages with plain-English translation
"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 a firearm without danger to public safety or to the peace: s 11(3)(a). Under s 11(7), the Commissioner has a discretion to refuse to issue a licence if the Commissioner considers that issuing it would be contrary to the public interest." [Applicable legislation 1–2]
Plain English: The law says a person should only get a firearm licence if they are trustworthy and will not endanger others; the police can also refuse on public interest grounds.
"The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss ... The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests." [The public interest 4]
Plain English: Tribunals should apply the statute directly; do not treat earlier judges' colourful phrases as additional legal rules that applicants must meet.
"The incorrect answers resulted from a combination of carelessness and inexperience and were not knowingly false or misleading within the meaning of s 70, and I so find." [The applicant's record 16]
Plain English: The applicant made mistakes on his form, but the Tribunal concluded they were honest errors, not deliberate lies that break the law.
"On the basis of all the evidence, I conclude that the applicant, if issued with a firearms licence, is now unlikely to present any significant, noticeable or realistic danger to public safety." [Conclusions 1]
Plain English: Looking at everything submitted, the Tribunal decided the applicant does not pose a real danger if given a licence.
"The totality of the evidence leads me to the conclusion that it would not be contrary to the public interest for a firearms licence to be issued to the applicant, and I so find." [Conclusions 4]
Plain English: Weighing all factors, issuing a licence is consistent with the public interest.
What fact patterns trigger this precedent
This decision is most useful where:
The applicant has serious but historical misconduct (criminal conviction, AVO, or regulatory disqualification) from many years prior, with a significant intervening period of good conduct.
There is clear evidence of rehabilitation: sustained employment, community service (e.g. RFS), psychological evaluation demonstrating remorse and reduced risk, and corroborating references.
The alleged false statements on application forms can plausibly be explained as carelessness, misunderstanding or returned mail rather than deliberate deception.
The public interest dimension requires balancing occupational need (primary production, vermin control) against public safety concerns.
The Commissioner's decision under s 11(7) is discretionary and the Tribunal is asked to undertake merits review with fresh or further evidence.
Conversely, the decision offers limited assistance where an applicant has recent or repeated violence involving firearms, ongoing criminal association, neurological or psychiatric evidence of continued risk, or deliberate concealment of serious convictions, those facts point strongly against licence issuance.
How later courts have treated it
This decision itself cites and applies established appellate and tribunal authorities (Ward, AML, Webb, Cusumano, Keegan Jacques, Bladen, Constantin, Masterson). Its approach, insisting on a contextual, evidence-based risk assessment and cautioning against rigid use of "virtually no risk", aligns with other tribunal decisions that prefer statutory analysis over formulaic phrases. Practitioners should expect later tribunals to treat Hook as consistent with the mainstream approach: consider the totality of evidence, give weight to rehabilitation and clear psychological opinion, and require proof of deliberate misstatement before applying s 70. This decision therefore reinforces an incremental, fact-specific pattern of decision-making rather than a departure from precedent.
(Users should check subsequent authorities and appellate considerations to see whether any particular points have been reinterpreted.)
Still-open questions
Threshold language: While this Tribunal cautioned against applying Ward's "virtually no risk" phraseology rigidly, the line between a useful benchmark and a de facto heightened burden remains contested. Future panels may differ in describing how close to zero risk the applicant must be before a licence is issued.
Weight of psychological evidence: The decision accepts a psychologist's report as significant corroboration of remorse and reduced risk. It leaves unresolved precise standards for the probative weight of such reports where no formal risk assessment was requested by the respondent, or where reports differ.
s 70 mens rea: The Tribunal required proof of knowing falsehood to engage s 70. Unresolved is how much investigative onus the applicant bears in completing forms (e.g. verifying old refusals), and whether systemic failures by registries (returned mail, inadequate notifications) might be treated as mitigating in other contexts.
Occupational need: This judgment gave some weight to the public interest in agricultural access to long arms. It is unclear how persuasive this factor will be against stronger public safety concerns in other contexts, especially where other humane-killing options are available.
Consistency across tribunals: The decision underscores the need for consistent application of the statutory tests. However, differences between panels on how to weigh youthful misconduct, community references, and rehabilitation evidence will continue to generate uncertainty in close cases.
Practical takeaway for practitioners: when contesting a firearms licence refusal under s 11(7), compile contemporaneous evidence of rehabilitation, community service, stable employment, and independent psychological opinion. If answer discrepancies exist on applications, provide contemporaneous explanations and documentary support (correspondence showing returned mail, telephone logs, registry notes) to rebut any inference of deliberate concealment.
Catchwords
Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240Briginshaw v Briginshaw (1938) 60 CLR 316Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42Constantin v Commissioner of Police, New South Wales Police Force [2012] NSWADT 172Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60Fielden & Fielden v Commissioner of Police, New South Wales Police Service [2000] NSWADT 156Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117Keegan Jacques v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 145Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206McDonald v Director-General, Social Security [1984] FCA 57, (1984) 1 FCR 354Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10Sterjovski v Director-General, Department of Transport [2002] NSWADT 10Tzoudas v Ministry of Transport [2008] NSWADT 350Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
Judgment (6 paragraphs)
[1]
The applicant's record
The facts of the case are not significantly in dispute. As regards traffic offences, since obtaining his licence in 2005, the applicant has received a total of 12 traffic infringement notices, including, before 2009, negligent driving, not displaying a P plate, and exceeding the speed limit. More recently, he incurred two speeding notices (by not more than 10 km/h) in 2016 and 2019 respectively, and another for failing to keep to the left on 2 January 2016.
More significant were the two police pursuit matters. On 16 April 2008, the applicant was the driver in a high-speed police chase in the Australian Capital Territory, at speeds exceeding 200 km/h in a 100 zone. For that he received two-year good behaviour bond, was fined and was disqualified for 12 months.
Yet a little over a year later, on 24 August 2009, he was again the driver in a high-speed police pursuit, this time in New South Wales. His speed was estimated at 155 km/h in a 100 zone and, into the bargain, he was unlicensed and the car was unregistered and uninsured. That episode earned him a disqualification for 4 years. As the respondent pointed out, following Keegan Jacques v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 145, [76], [81], such a traffic history shows a disregard for public safety and of a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme and licensing structure focus primarily on public safety.
The applicant freely admitted that his record during that period was "shocking", and the police pursuit episodes were indeed outrageous by any standard. Since then, however, his driving record has improved markedly. He did accrue two speeding infringements, one in 2016 and another in 2019, but as they involved speeds less than 10 km/h over the limit, they can be regarded as lying towards the lower end of the scale of culpability. An infringement in January 2016 for not driving on the left occurred at a time when he was towing a car trailer that had been fitted out as a mobile livestock treatment unit. How he came to be driving on the wrong side of the road was not explained, however. Nevertheless, his three contraventions since 2009 are of an entirely different order of magnitude from his atrocious episodes in 2008 and 2009 when he was 18.
The respondent also referred to an incident on 22 July 2019, when a police check of the vehicle he was driving (which belonged to his brother-in-law) found two knives stored in a canvas bag under the seat of the vehicle. The applicant was given an official warning relating to the safe keeping of knives (exhibit R1, p 49). It was not, however, submitted that he was in breach of any particular statutory provision.
The second basis on which the respondent opposed the grant of a licence to the applicant involved an incident of domestic violence and later conduct causing his ex-wife some disquiet. The respondent relied on the applicant's involvement in a physical altercation with his sister and her then boyfriend (now husband) on 12 December 2008. He had been affected by alcohol and became distressed when asked to leave his sister's house. He pushed his sister over, causing her to her sustain a cut to her right ankle and pain in her right index finger. He then struck the boyfriend in the face twice. This resulted in his being charged and convicted of common assault. As a result of the assault charge, he was made subject to an AVO on 5 January 2009, which remained in force until 4 January 2010. He was also required to enter into a bond for 12 months and was fined $450.
At the hearing, his sister, Mrs Sunnucks, when referring to the incident, said that she had pushed the applicant in order to get him to leave the house. He had in turn pushed her, but she had sustained no injuries. The fact sheet, however, refers to a cut to her right ankle and pain in her right index finger. That discrepancy could indicate that she wishes to diminish the circumstances of the assault or no longer regards the injuries she sustained as significant. She pointed out that they had taken out the AVO, not because of any fear for their safety, but because they wanted to shake him up and induce him to behave responsibly. At all events she was emphatic that he had matured and was completely different now, trying to make a life for himself. He was in a steady job and had taken on responsibility for three children when he was married, and now took a similar role in his new relationship.
The applicant and his ex-wife separated in early April 2019. On 8 April, after he had learned that she had been having an affair with another man, there was an angry scene at her house when he verbally abused her and left with the television set.
It is not disputed that the applicant at no time used any violence or threat of violence against his ex-wife, whether before, during or after the marriage. After the 8 April incident, his ex-wife became concerned because he was driving past her house in the morning and sounding his horn. He said he was driving past in order to collect a fellow-worker on the way to the Gundagai meat works, and it was only for the first week after the separation. He had then left that employment so that his ex-wife would not be able to complain of him driving past her house. An AVO applied for after the 8 April incident was not proceeded with.
It may be noted that none of the applicant's domestic altercations involved any threatening behaviour with, or brandishing of, firearms. At that time the applicant had no licence and did not possess any firearms. As the respondent's submissions implied, any involvement of firearms in such episodes would be a highly concerning factor, as the tribunal noted in Fielden & Fielden v Commissioner of Police, New South Wales Police Service [2000] NSWADT 156, [56], "Firearms regulation is strict for obvious reasons including that firearms are often involved in domestic disputes and routinely cause death and disfigurement".
Given that the only physical assault took place 12 years ago and there has been no repetition since, I think it is going a little too far to describe the applicant as having "a record of domestic violence", as the respondent does.
The respondent's third ground of objection was Mr Hook's application history. As the tribunal stated in Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240, [26], "the system of firearms licensing and the requirement to provide personal information has been developed to ensure that the public is protected as required by the principles and objects set out in section 3 of the Firearms Act".
In his application for a firearms licence dated 9 January 2013, he had responded "no" to a question whether in the past 10 years he had been the subject of an AVO (other than an order that was revoked) (exhibit R1, p 21, Part H, question (f)). His explanation was that he had thought the question was asking about current AVOs, whereas the order against him had expired on 4 January 2010.
Again, in his application dated 2 October 2019 he had answered "no" to question whether he had been refused or precluded from holding a firearms licence. In fact, his 2013 application had been refused on 7 May 2013. It was not disputed that the two notices of refusal sent to him had been returned unclaimed, but the respondent pointed out that he had telephoned the registry to enquire about the progress of the application (see file notes for 2013, part exhibit R2) and presumably been told that the application had been refused. Indeed, the registry's telephone log for 23 April 2013 (part exhibit R2) contains the note "Confirmed with the customer he was subject to an AVO". The applicant himself said in evidence that he had discussed the AVO on the telephone with registry staff. There would have been little point in discussing the existence of an AVO except in reference to the 10-year disqualification rule.
The applicant's position was that "must have misread the question" and as he had received no official written notification, he had thought he was justified in saying that his application had not been refused. He also thought in relation to the 2019 application that he had not fully read the question as he had thought it related to all other kinds of licences.
The applicant's explanations are less than impressive and at best suggest a degree of carelessness in completing an official document. The meaning of the questions was clear enough if one took the trouble to read them properly. At the same time, it must be borne in mind that he has at all times worked in rural industry on the land in a variety of capacities that probably have not involved much legal form-filling. In my view his incorrect answers resulted from a combination of carelessness and inexperience and were not knowingly false or misleading within the meaning of s 70, and I so find.
The case may be contrasted with Constantin v Commissioner of Police, New South Wales Police Force, [2012] NSWADT 172, [48] - [53], which dealt with the "fit and proper person" requirement, in which a pistol licence refusal was upheld in a case where the applicant had knowingly concealed a Queensland conviction for armed robbery. The offence was a serious one, involving violence, and the intent to deceive was clear. Even so on appeal the Appeal Panel, though dismissing the appeal, expressed misgivings about the result (Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16, [26]):
We have some concern over a finding as to lack of fitness that is so narrowly based. While the appellant's account was self-serving and his understanding of his personal responsibilities for ensuring the accuracy and truth of an application misguided, minds might differ on whether a single event of this kind should lead to the very serious finding that a person is unfit to be granted a licence.
[2]
The references
The applicant relied on six character references dated in June 2020 (part exhibit A1), the first being from his sister Nita Sunnucks. Its contents have been outlined above, but in essence Mrs Sunnucks states that when he was young her brother was reckless and did not think about the consequences of his actions. He had got into some serious trouble with the police over driving offences, which gave him a major reality check. Since then he had grown from an immature boy into a responsible young man. When he was married he took on a father role in relation to his wife's three sons and has done so again in relation to his new partner's daughter. He has become a hard-working, responsible, loving and caring family man over the past 10 years. Back then the family was very worried about him as he was going off the rails, but he had learned and changed his life around, growing through age life experiences.
Crystal Hayes wrote that she had known him for over 12 months at that stage, and said that he has always been upfront about his past and the mistakes that he made. He has tried to give back to the community. He is a hard worker, kind, generous and always offering a helping hand. Since those past incidents he had been staying out of trouble and had helped their community alongside other people to fight the bushfires that hit the area. She trusted Matthew Hook and believes he is a changed person since those incidents occurred and that he is doing everything he can to better himself. The way he has taken on a father role is admirable, as he treats his partner's child as his own.
Mandy and Anthony Foster of Tumbarumba, the applicant's partner's parents, wrote that they had known the applicant for over 12 months. They have found him to be a very kind and well-natured person and a hard worker. They had often seen that in his position as a farmer he is kept busy, but he goes to all lengths to ensure that his manager gets the job completed. He takes pride in everything he does and gives back to the community as much as he can. He can be counted on to help anyone who needs it.
In December 2018 when bushfires hit their community, he made sure that they had evacuated safely to his place, in which he knew they would be safe, and went to fight the fires in the community using the equipment that he had as part of Gundagai RFS. He knew that the people at Tumbarumba needed help, and he did not hesitate, but stayed for over 2 weeks helping to fight the fire.
[3]
Psychologist's report - Mr Michael Kruger-Davis
The psychologist's report from Mr Kruger-Davis dated 28 August 2020 has been outlined above. Its main conclusions are that the applicant is genuinely remorseful for his actions in 2008. He understands the consequences of his acts then and would be very unlikely to behave in a similar manner now. According to himself and the referees, he is a changed man. He is involved in community activities such as the RFS, holds down a job as a valued employee and is in a substantial relationship.
The change is most likely due, the report states, to the maturation of his prefrontal cortex and his ability to consider the consequences of his actions. He is able to regulate his behaviour and think about his thinking (metacognition): "That brain maturation is the reason that Mr Hook is unlikely to reoffend". He has been able to demonstrate that over the last 10 years he has been able to exercise rational control and willpower while in charge of a motor vehicle. There are no indications that he would not be able to exercise the same responsibility to maintain public safety while in possession of, or using, a firearm.
The respondent submitted that the report should be given little or no weight because the applicant's mental state or capacity are not in issue in the present application. While that is correct, the report is of value in the present context as it corroborates the genuineness of his remorse over his past actions and the radical change in his attitudes and sense of responsibility, including through his membership of the RFS. It provides a scientific explanation for part of that change and gives support to the view that the applicant is unlikely to reoffend.
[4]
Conclusions
The applicant is now aged 31 and his worst infringements occurred when he was 18. On the basis of all the evidence, I conclude that the applicant, if issued with a firearms licence, is now unlikely to present any significant, noticeable or realistic danger to public safety.
Also in relation to the issue in this case, there is a public interest in law-abiding farmers, graziers and their employees having access to long arms for the purpose of protecting the environment and primary industry from predators and other vermin and, where it is necessary, humanely putting down sick or injured livestock.
While not an actual requirement for the applicant's position, the evidence is that it would be very helpful in his work, and possibly also if he is to progress in that field. The respondent submitted that the function of dispatching sick or injured stock can be performed by use of a captive bolt gun, which is no doubt correct, but such an implement would be of no use in countering ferals and other destructive vermin. At the same time, he does need to exercise more care in his compliance with statutory requirements if he is to meet the stringent standards imposed by firearms legislation.
The totality of the evidence leads me to the conclusion that it would not be contrary to the public interest for a firearms licence to be issued to the applicant, and I so find.
[5]
Orders
1. The decision under review is set aside;
2. A category AB firearms licence is to be issued to the applicant.
[6]
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: 14 October 2020
At the hearing the respondent relied on written submissions filed on 23 September 2019 which, after sketching the background of the matter, noted that as a result of the common assault charge arising out of the 12 December 2008 incident, the applicant was made subject to an AVO which remained valid until 4 January 2010. He had also entered into a good behaviour bond for 12 months and was fined $450.
In early April 2019, the applicant and his ex-wife separated. On 7 April 2019, the applicant contacted his ex-wife by text message. She did not respond, but had a friend speak to the applicant and ask him to stop messaging her. The following day, after a series of text messages, the applicant attended his ex-wife's property and allegedly verbally abused her, stating that he had found out she had been seeing another man. She locked the screen door as he approached, but he pulled the handle and the striker plate was pulled out of the soft timber frame.
After the applicant entered the house, removed the television and left the property, his ex-wife contacted her sister, who in turn notified police. This was the occasion when police spoke to the applicant at some length and suggested he find another avenue of venting and cease contact with his ex-wife, or he would end up with an AVO or being charged.
The applicant subsequently attempted to text his wife a further two times and allegedly drove past her house daily at a slow pace and honked his horn. An AVO was recommended but not issued.
The respondent pointed out that since obtaining a licence in 2005, the applicant had received a total of 12 traffic infringement notices, including for negligent driving, exceeding the speed limit, not displaying P plates and not keeping to the left (2 January 2016).
He had also been charged with traffic infringements in the Australian Capital Territory. On 18 April 2008, he had been the driver in a high-speed police pursuit, attaining speeds estimated at in excess of 200 km/h in a 100 km/h zone. He received two-year good behaviour bond and a fine for failing to obey a police officer's direction and driving at a speed dangerous. On 24 August 2009, he was again the driver in a high-speed police pursuit, this time in New South Wales. He was estimated to have been driving at 155 km/h in a 50 km/h zone, before the vehicle broke down and he was arrested. At the time he was unlicensed and the car was unregistered and uninsured.
On 10 October 2009, he was convicted at Yass Local Court of driving in a manner dangerous or at a speed dangerous, driving without a licence, using an unregistered motor vehicle and using an uninsured motor vehicle. He was disqualified from driving for a period of four years from 25 August 2009 to 24 August 2013.
On 22 July 2019, he was given an official warning in relation to the safe keeping of two knives, which were stored under the seat of his vehicle.
As was noted above, his 4 January 2013 application for a category AB firearms licence was refused in part because a person is precluded from holding a firearms licence when they have been subject to an AVO within the previous 10 years. The applicant was thus prohibited from being issued a licence until 4 January 2020. His 2 October 2019 application for a category AB licence was refused on 29 April 2020.
The respondent relied on two provisions of the Firearms Act, s 11(7), which provides that the Commissioner may refuse to issue a licence if the issue would be contrary to the public interest, and s 70 of the Act, which provides that a person must not, in connexion with an application under the act or regulations, make a statement or provide information that the person knows to be materially false or misleading. After outlining the objectives of the legislation and the case law relating to the concept of public interest, the respondent submitted that there were three main areas of objection to the applicant being issued with a licence:
the applicant's extensive history of traffic infringements,
his repeated and continued involvement in domestic disputes, resulting in an AVO in 2009,
and his supplying information on his application that was false or misleading in a material particular, being that he did not identify that he had previously been refused a firearms licence.
In relation to the third ground, his evidence that he "must have misread the question" ignored the fact that he had contacted the registry by telephone. On 23 April 2012, he had confirmed with registry staff that he was subject to an AVO, and it would be assumed that he would have been advised of the consequential mandatory refusal.
The applicant relied on a number of character references from friends and family that speak highly of him. Although some of the references indicated a change of behaviour and personal growth, none of them, other than his sister's reference, indicates knowing the applicant for a significant period greater than 12 months. The references were also embedded within a personal association or friendship. Consistently with the tribunal's reasoning in Tzoudas v Ministry of Transport [2008] NSWADT 350, [42], that where referees do not demonstrate an awareness of all the circumstances giving rise to the refusal (for example, his past AVOs), the references should be given little or no weight.
The applicant had tendered a psychologist's report from Mr Michael Kruger-Davis dated 28 August 2020, although the respondent had not raised any concerns regarding the applicant's mental health or requested that a risk assessment be prepared. Viewing the applicant's conduct as a whole, it could not be concluded that there is virtually no risk in issuing a licence to the applicant.
In oral submissions at the hearing, Ms Norquay reiterated those points, highlighting the fact that his involvement in the high-speed police pursuit in the Australian Capital Territory resulted in a 2-year bond, but the next year he had done the same thing, this time in New South Wales, and his female passenger had been placed in danger. He had been convicted of two assault offences in relation to the 2008 domestic violence incident, but no further AVO had been taken out in 2019 in relation to his ex-wife. He therefore had a domestic violence history, and not only when he had been young. As it took him some time to realize the significance of his actions, he still represented a risk.
As there had been no mental health issue raised, the psychologist's report was of limited relevance. It also contained some discrepancies, as the applicant does have a domestic violence history.
His licence applications were significant because he had given false answers to some important questions, questions that had been expressed quite clearly. It was also clear that his disqualification resulting from the AVO expired in January 2020. His claim that he was told he would be able to reapply in September 2019 was not supported by any documentary evidence. His answer had been false and he had not sought any help in completing the application. That was significant because the requirements placed on holders of firearms licences are detailed, and his false statements created a concern that he might not comply with statutory requirements in the future.
There was no clear evidence that he actually requires a firearms licence for the purposes of his work. There are other options available, such as a captive bolt gun to put down injured livestock. He had not given primary production as a reason in his application. He had known in 2013 that his licence application had been refused because the registry told him so on the telephone. All the records relating to the AVO and the 2018 incident gave clear dates.
Consideration
Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the Civil and Administrative Tribunal Act (CAT Act) (s 30) and the Firearms Act, including the Commissioner's refusal to issue a licence or permit: s 75(1)(a). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
Clear guidance as to how the act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that 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. Section 11(4)(c) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's intemperate habits or being of unsound mind.
These are not adversarial proceedings. There is accordingly no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and in s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12]. Nevertheless, the civil standard of proof, the balance (preponderance) of probabilities, is accepted as a useful guide for tribunal deliberations.
The public interest
In this matter the respondent does not contend that the applicant is not a fit and proper person to hold a firearms licence. Instead, the respondent submits that it is not in the public interest for a licence to be issued to the applicant.
Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if the Commissioner considers that the issue of a licence would be contrary to the public interest. The "public interest" allows a consideration of issues going beyond the character of the applicant to be taken into account. They 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, New South Wales Police Force [2013] NSWADTAP 16.
The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety. In an often-quoted passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the tribunal could never be totally satisfied that a person would never pose any risk to public safety. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test under s 11(7) as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23]; Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, [130].
Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 that that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because Her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. "The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests" (at [7]).
Other cases have pointed out that the question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] - [66] 66].
The Commissioner's decision refusing a category AB firearms licence is set aside; a category AB firearms licence is to be issued to the applicant.
He is a great partner to their daughter and has taken on the position to be their granddaughter's stepfather. They could not think of a better person to take on the role of being a father, as he treats her as his own. He has always been honest about his past and realizes the mistakes he had made, and is trying to correct them by giving back to the community. Since then he has matured and is definitely somebody trustworthy.
Mr Stephen Wilesmith, of Tumbarumba, has known the applicant since November 2019. Since knowing him he has found him to be a kind and generous person who is not afraid of hard work or helping somebody in need of help. He has admitted his past driving offences and since then has tried to give to the community as best he can. He has greatly matured since those incidents. In December 2019, the Dunns Road bushfire hit their community, but Matthew knew that they needed help and did not hesitate to join their crew in helping them to fight the fire for over two weeks.
Douglas and Ruth Foster of Rosewood also highly praised the applicant's enormous contribution during last summer's bushfires. They also described his kind and considerate treatment of Douglas Foster, who suffers from advanced cancer, and his unstinting generosity with his time.
Alice Foster, the applicant's partner, describes how he has grown from the person he was 11 to 12 years ago when he made the driving offences which he still regrets. In the 12 months they have been dating, she has found him to be caring and kind-hearted. She knows she can trust him, especially in the way that he has taken on the father figure role for her daughter. He is a hard worker and takes pride in everything he does. He works as a farmer, but also does fencing jobs on top of working at the property he lives at.
He is the type of person who will help anyone who needs it. He gets along with her whole family, as they think he is a kind and generous person and the best person for herself and the best father figure for her daughter. The help that he gave her father and brother during the bushfires was admirable. He did not hesitate to make sure that her mother had evacuated and was safe, before proceeding to help with the fires. He is a member of Gundagai RFS, one of the reasons he joined being that he regretted the mistakes he had made and wanted to take some steps to right his wrong. He takes full responsibility for the mistakes he made and has always been open and honest about them. She did not know him when those incidents happened, but she knows the person he is today and that he has changed since that time.
The respondent submitted that the references should be given little or no weight as they arose within a personal association of friendship, and most of them (except Mrs Sunnuck's) did not indicate no the applicant for a significant period greater than 12 months. While all the references are from friends or relatives, some, such as the one from Alice's parents, are from people who would not automatically be favourably disposed towards him. But all the references are unanimous in their praise for his character and for the way in which he has put his reckless youth behind him. And what the referees lack in length of acquaintance with the applicant, they make up for in emphasis.
The respondent also submits that the referees do not demonstrate awareness of all the circumstances giving rise to the refusal of the licence, such as his past AVO, but they do show full awareness that he had been involved in serious trouble with the law in earlier years and stress that he has always been completely open about his troubled past. The references should thus receive some weight.
Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].