Hopwood v Commissioner of Police, NSW Police Force

Confidential material

1. The Tribunal was also provided with material on a confidential basis (exhibit CR4, the confidential material).
2. On 22 May 2024 the Tribunal made orders under s 64 of the Civil and Administrative Tribunal Act 2013 (the CAT Act) prohibiting publication, broadcast or disclosure of the confidential material or any part of a closed hearing. A closed hearing was held on 17 September 2024 following the open hearing. For the purposes of this review a further order will be made preventing disclosure of any part of a paragraph in these reasons that commences with [NOT FOR PUBLICATION] other than the words in those brackets.

Applicant's case

1. The Applicant contends he should be granted a firearms licence because he is no risk to public safety as any mental health issues he may have had have resolved, he has addressed his troubled past behaviour and he would like firearms to hunt recreationally.

Respondent's case

1. The Respondent contends the correct and preferable decision is to refuse the firearms licence application due the Applicant's history of mental health issues and conduct as well as the Applicant's lack of candour with police, referring to three provisions of s 11 of the Firearms Act 1996 (the Firearms Act): 1. the Applicant is not a fit and proper person to hold a licence (s 11(3)(a)); 2. the Applicant may not personally exercise continuous and responsible control over firearms because of the Applicant being of unsound mind (s 11(4)(c)); and 3. the issue of a licence would be contrary to the public interest (s 11(7)).

Jurisdiction

1. The Tribunal has jurisdiction to review an administratively reviewable decision: s 55 of the ADR Act. Section 75 of the Firearms Act provides that applications may be made to the Tribunal for administrative review of a decision to refuse a firearms licence. The Tribunal has jurisdiction to hear and determine this application for review.

Administrative Review

1. When considering an application for review the Tribunal is to decide what is the correct and preferable decision having regard to the material before it (s 63(1) of the ADR Act). In doing so the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) of the ADR Act). The time at which the correct and preferable decision is determined is when the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].
2. The Tribunal may decide to affirm or vary the administratively reviewable decision, or set it aside and either substitute a different decision or remit the matter to the administrator for reconsideration: see s 63(3) of the ADR Act. The Tribunal is required to base its findings of fact on logically probative material: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62 and 68; and Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 at [5]-[8], [15]-[17].

Relevant Legislation

1. The underlying principles of the Firearms Act are set out in s 3 and include: (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…
2. Section 11 of the Firearms Act allows the Respondent to issue or refuse a firearms licence application, relevantly providing: (3) A licence must not be issued unless - (a) 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, and … (4) Without limiting the generality of subsection (3) (a), 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 - … (c) the applicant's intemperate habits or being of unsound mind. … (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.

Applicant's history

1. The Applicant is 37 years old, lives with his mother and receives a disability support pension. The Applicant would like to contribute to the community by assisting in pest control.
2. The Applicant applied for a firearms licence in 2015 but that application was refused because the Applicant had been subject to an apprehended violence order within the prescribed prohibition period. The Applicant's evidence was that he had been patient, waiting the required time before making a fresh application for a firearms licence in 2023.
3. In 2001 the Applicant was involved in a number of incidents where his mental health was of concern, where he displayed aggression, was violent and made threats of violence including to his family. As a result of some of that conduct the Applicant was subject to an apprehended violence order between July 2001 - September 2002.
4. In 2003 the Applicant was subject to a further apprehended violence order between November 2003 - November 2004. The Applicant's evidence was that since that time he had grown up, had improved his behaviour and no longer associated with people who were involved in criminal activity.
5. The Applicant has had a number of further interactions with police, including: 1. in 2009 at a campsite where the camping fee had not been paid which the Applicant had driven to in his unregistered vehicle, the Applicant did not initially admit to driving the vehicle and instead told police someone else had driven, which was a lie. 2. in September 2023 the Applicant was stopped by police while driving. During that interaction: 1. the Applicant's initial answer to police questions was that he was listening to audio on his mobile phone, when his phone was investigated it was found to be broadcasting video as well as audio; and 2. when questioned in relation to the smell in his car, the Applicant told police he was with a friend who had been smoking cannabis but then produced, first one jar and then a further amount of medicinal cannabis for which he had a prescription.
6. The Applicant's evidence was that he was listening to a podcast and was not watching the screen on his phone during the September 2023 incident. Further, the Applicant's evidence was that he answered police honestly when asked if he had any illegal drugs in his car and offered his car for search.
7. [NOT FOR PUBLICATION]

Letters and reports

1. The Applicant provided a number of letters of reference from members of his family who speak to his improved behaviour since his youth.
2. The Applicant provided letters of reference from friends which do not specify they know the Applicant's full circumstances and therefore can be given little weight in this review.
3. The Applicant provided a letter from his former treating GP from childhood until 2017 which explains the basis for the Applicant's disability support pension.
4. The Applicant provided a November 2023 report from Dr Houison, a psychologist, addressing a risk assessment questionnaire provided by the Respondent and prepared on the basis of one appointment. Dr Houison attributed the Applicant's past behaviour to the Applicant abruptly ceasing medication in relation to one incident. The Tribunal accepts the submission of the Respondent that this demonstrates the report was based on incorrect information given the Applicant's behaviour was of concern over a longer period of time. Further, Dr Houison's report can be given little weight because the Tribunal is unable to be certain Dr Houison was fully informed as to the Applicant's whole relevant history in providing his opinion: see Potts v Commissioner of Police, NSW Police Service [2010] NSWADT 311 at [44]-[51].

Public safety and risk

1. Under the Firearms Act, public safety is the primary consideration: Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134. The interest of an applicant in obtaining a firearms licence is subordinate to that consideration: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 at [69].
2. In Ward v Commissioner of Police [2000] NSWADT 28 Deputy President Hennessy said (at [27] - [28]): …The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.
3. In addressing the assessment of risk an applicant is not required to prove a near-absolute negative, instead the assessment is to occur in a "nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety": see Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 where the Tribunal discussed Ward and other authorities (at [64] - [66]).

Is the Applicant a fit and proper person to hold a licence?

1. The expression 'fit and proper' has often been considered by this Tribunal and in other jurisdictions. In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at pp 156-7 the High Court said: The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.
2. Further, in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, the question was whether the holder of a commercial broadcasting licence under the Broadcasting Act 1942 (Cth) continued to be a "fit and proper person" to be the holder of such a licence. Toohey and Gaudron JJ discussed the meaning of the expression 'fit and proper person' (at p 380): 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.
3. Their Honours went on to say (at p 388): 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."
4. Mason CJ (with whom Brennan and Deane JJ agreed) stated that the concept "fit and proper person" should not be construed narrowly and stated at (pp 348-349): Some indication of the breadth of the content of the concept may also be gathered from the fact that it is a purpose of the Act to ensure that commercial broadcasting is conducted in the interest of the public. A commercial broadcasting licence is a valuable privilege which confers on the licensee a capacity to influence public opinion and public values. For this reason, if for no other, a licensee has a responsibility to exercise the power conferred by the licence with due regard to proper standards of conduct and a responsibility not to abuse the privilege it enjoys.
5. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said (at p 76): 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 devolving 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.
6. Whether an applicant is a fit and proper person to hold to licence is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, NSW Police Force [2014] NSWCATAD 184; is to be determined by reference to 'the activities in issue': Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82]; and gauged in 'light of the nature and purpose' of those activities: AJO v Director-General of Transport [2012] NSWADT 101 at [26].
7. For firearms licences, the Tribunal is required to form "a positive state of satisfaction" that an applicant is a fit and proper person who can be trusted to possess firearms without danger to public safety or to the peace: Commissioner of Police, New South Wales Police Force v EMB [2021] NSWCATAP 63 at [45] and (at [19]) the Tribunal noted: The statutory regime under the Act is protective, not punitive. The test is directed towards maintaining and encouraging appropriate standards in the use of firearms.
8. As a result of the Applicant's admitted lack of candour with the police in 2009 and, on the material before the Tribunal, the Applicant's lack of candour during the September 2023 incident, the Tribunal cannot be satisfied the Applicant is always truthful with police. A firearms licence holder must interact with police regularly and in a truthful manner in order for the firearms licensing system to operate effectively.
9. Further, on the material before it, the Tribunal cannot be satisfied the Applicant's mental health issues leading to his past aggressive and violent behaviour have fully resolved: see [27] above. This finding regarding the uncertainty as to the resolution of the Applicant's mental health and behaviour issues is also the reason why the Tribunal also cannot be satisfied the Applicant will personally exercise continuous and responsible control over firearms (s 11(4)(c) of the Firearms Act).
10. Therefore in all the circumstances the Tribunal cannot be satisfied the Applicant is a fit and proper person under s 11(3)(a) of the Firearms Act who can be trusted to possess firearms without danger to public safety or to the peace.

Is it in the public interest for the Applicant to hold a licence?

1. The term public interest is not defined in the Firearms Act. In Constantin v Commissioner of Police [2013] NSWADTAP 16 the Appeal Panel stated (at [33]): 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.
2. The public interest considerations in s 11(7) of the Firearms Act can also include an applicant's fitness or character that are mentioned separately in s 11(3)(a), see Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 368 (at [93]): Such considerations may include an applicant's fitness or character if that is relevant to an assessment of the public interest (as it would usually be), notwithstanding that an applicant's fitness or character is a separate matter to be considered under s 11(3)(a).
3. Therefore the matters considered at [38]-[40] above are also relevant to the consideration of public interest and weigh against the Applicant with the result that the Tribunal cannot be satisfied the Applicant would not pose a risk to public safety if he was granted a firearms licence.
4. [NOT FOR PUBLICATION]
5. Therefore, in all the circumstances and on the material before the Tribunal, the Tribunal cannot be satisfied it is in the public interest under s 11(7) of the Firearms Act for the Applicant to be granted a firearms licence.
6. It follows that the correct and preferable decision is to affirm the decision of the Respondent to refuse the Applicant's firearms licence application.

Order 1. The decision under review is affirmed. 2. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 other than to the Tribunal and Respondent publication or broadcast of: 1. the contents of the confidential material provided by the Respondent is prohibited; 2. any part of the evidence given before the Tribunal and submissions made to the Tribunal at the confidential hearing on 17 September 2024, including all recordings, whether written, electronic or aural of that hearing is prohibited; and 3. any part of any paragraph of these reasons which commence with [NOT FOR PUBLICATION] other than the words in those brackets is prohibited.

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: 04 October 2024