Hughes v Commissioner of Police

Legal Principles

1. The Tribunal has jurisdiction to review the Respondent's decision pursuant to section 75(1)(c) of the Act and section 30 of the CAT Act.
2. The Tribunal can take into account both the material before the original decision maker as well as any new material put before the Tribunal: see Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77.
3. The underlying principles of the Act are, relevantly: 1. to confirm that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety; and 2. to improve public safety by imposing strict controls on the possession and use of firearms and by promoting the safe and responsible storage and use of firearms.
4. Section 12 of the Act prescribes the "genuine reasons" considered by the Respondent in the issuing of licences for possessing and using firearms, which are specified in the granting of any firearms licence.
5. Section 19(2)(c) of the Act provides that the licensee must, in accordance with such arrangements as are agreed on by the licensee and the Commissioner, or in the case of a licensed firearms dealer, at any reasonable time, permit inspection by a police officer (or such other person as may be prescribed by the regulations) of the licensee's facilities in respect of the storage and safe keeping of the firearms in the licensee's possession. Clause 37 of the Firearms Regulation 2017 (NSW) (Regulations) provides that a licensee must make all reasonable efforts to accommodate any reasonable request by the Commissioner to enter an arrangement under section 19(2)(c) of the Act.
6. Section 40 of the Act prescribes the safe storage requirements for Category A and B firearms: 40 CATEGORY A AND CATEGORY B LICENCE REQUIREMENTS (1) The holder of a category A or category B licence must comply with the following requirements in respect of any firearm to which the licence applies-- (a) when any such firearm is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable, (b) if such a receptacle weighs less than 150 kilograms when empty, it must be fixed in order to prevent its easy removal, (c) the locks of such a receptacle must be of solid metal and be of a type approved by the Commissioner, (d) any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the receptacle containing any such firearm, (e) such other requirements relating to security and safe storage as may be prescribed by the regulations. : Maximum penalty--20 penalty units or imprisonment for 12 months, or both. (2) A licensee does not have to comply with the requirements of this section if the licensee satisfies the Commissioner that the licensee has provided alternative arrangements for the storage of firearms in the licensee's possession that are of a standard not less than the requirements set out in this section.
7. Section 24 of the Act provides for the revocation of licences in a range of circumstances, including: (2) A licence may be revoked: (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or (b) if the licensee: (i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or (d) for any other reason prescribed by the regulations.
8. Clause 20 of the Regulations prescribes that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
9. Section 24(2)(d) of the Act and Clause 20 of the Regulations work together to provide authority for the revocation of a licence where the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
10. The expression "public interest" is not defined in the Act. It is well established that, in considering the meaning of that term, the Tribunal will have regard to the context in which it appears in the first instance: CIC Insurance Limited v Bankstown Football Club (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 (McHugh, Gummow, Kirby and Hayne JJ). A discussion of relevant case law with respect to public interest was set out by the Tribunal in the case of Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 at paragraph [69]-[74]. The concept of "public interest" was discussed by the Administrative Decisions Tribunal (NSW) (the ADT) in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 (Telofea) as follows: The "public interest" is an inherently broad concept giving an appellant [the Respondent] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operated in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.
11. The circumstances in Toleafoa related to the revocation of a security licence under the Security Industry Act 1997 (NSW). In Ward v Commissioner of Police [2000] NSWADT 28 (Ward), the ADT confirmed that these comments apply equally to the Act.
12. In Cusumano v Commissioner of Police [2001] NSWADT 50, the ADT stated: There is no guidance in the legislation in relation to how these directions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.
13. 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, namely, to confirm firearm possession and use as a privilege conditional upon the overriding need to ensure public safety.
14. More generally, 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.
15. In Director of Public Prosecutions v Smith (1991) 1 VR 63 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 fore 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.
16. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] the Appeal Panel stated: 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.
17. In an often-quoted passage, Hennessy DP in Ward at [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 as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130].
18. Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, noting in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7] that: "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".
19. 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: see Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] - [66].
20. Further, the Court of Appeal in Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 368 at [1] observed that the power to grant an application under 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.
21. 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."
22. The principal issue in determining public safety is therefore whether or not there is a risk to the safety of the public if the Applicant retains the relevant licence: Vella v Commissioner of Police [2003] NSWADT 91.
23. 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, [117].

Evidence

1. The Applicant relied on the following evidence which was identified in the Agreed Tender List: 1. Administrative review application form dated 1 March 2021 enclosing the following documents: 1. Firearms Registry Fact Sheet: Safe storage level one - Category A&B requirements dated April 2020; 2. Letter from applicant dated 24 September 2020; 3. Letter from applicant enclosing 24 September letter dated 29 October 2020; 4. Notice of suspension of licence dated 1 September 2020; 5. Notice of suspension of licence dated 22 November 2020; 6. Letter titled "Internal review request" dated 19 December 2020; 7. Receipts from Officeworks dated 9 July 2020; 8. Letter from NSWPF acknowledging receipt of internal review application dated 29 December 2020; 9. Various photograph images dated 15 August 2016. 1. Applicant's material in response to s59 application received on 7 May 2021: 1. Various letters from Applicant to Councils and Police; 2. Extract of book titled 'Winston Churchill strikes again: the map of Iraq (6 pages); 3. Extract of book re textiles (3 pages); 4. Extract of book 'surging through the summer' (4 pages); 5. Letter from Applicant requesting matter to be dismissed; 6. Photograph images of earthworks; 7. Scans of the Applicant's passport (1 page); 8. Extract of book re leather making (1 page); 9. Extract of book 'Byng - the political sacrifice' (9 pages). 1. Applicant's further material received on 1 June 2021, comprising: 1. Statement of Applicant lodged 24 May 2021 (12 pages); 2. Extract from Oxford Dictionary (7 pages); 3. NSW Police access application (1 page). 1. Applicant's material dated 29 July 2021 enclosing: 1. Submissions regarding safe storage (4 pages); 2. Letter regarding material received from the Respondent on 5 July 2021; 3. Annotated firearms safe storage from www.berrysafeco/com.au (2 pages); 4. Category A&B requirements from NSW Firearms Registry (3 pages); 5. Image of safe with 40mm lock (1 page); 6. Image of lock (2 pages); 7. Appendix triangle miscellaneous notes (1 page); 8. Image of three USBs (1 page). 1. Applicant's materials received on 10 August 2021 including: 1. Two letters dated 5 August 2012; 2. Letter regarding copies of videos; 3. Videos with the following file names: DSCF0029, DSCF0060, DSCF0063, DSCF0081, Nolight, DSCF0026, DSCF0027, DSCF0028 1. Applicant's materials received on 24 August 2021 including: 1. Letter dated 18 August 2021; 2. Various images of USB sticks and fertiliser; 3. Certificate of vehicle registration; 4. Image date stamped 2/7/2017; 5. Video of documents being posted.
2. The Respondent relied on the following evidence which was identified in the Agreed Tender List: 1. Section 58 bundle dated 29 March 2021; 2. Body worn video footage held by Commissioner of Police, as referred to in COPS Reports in the s58 documents, served on 1 July 2021, including footage captured on the following dates: 3 July 2020, 29 July 2020, 1 September 2020, 22 November 2020, 2 March 2021, 4 March 2021; 3. Supplementary s 58 bundle dated 1 July 2021; 4. Body worn video footage held by the Commissioner of Police, sent to the Applicant on 16 August 2021, including footage captured on the following dates: 5 August 2021.
3. The Respondent also provided the Tribunal with two sets of written submissions dated 1 July 2021 and 12 August 2021.

Respondent's evidence

1. The Respondent's s 58 documents included reports that the Applicant had come to the attention of Police for a range of issues, both before and after his firearms licence was issued, including: 1. Event report E 761862: On 23 November 1994, a report was made to the Sex Workers Outreach Project, and subsequently Police, that the Applicant had grabbed a prostitute by the throat, resulting in a struggle where the victim fled and was pursued by the Applicant. The Applicant was subsequently arrested, cautioned and conveyed to Sydney Police Station. He was later charged with assault, which was dismissed. 2. Information Report I 48077095: On 1 February 2003, Police stopped the Applicant on the corner of Lawrence and Harley Streets in Alexandria as he matched the description of a person who was wanted for smashing things in Maddox Street and Mitchell Road, Alexandria, and asked what he was doing and that he produce ID. The Applicant refused to provide his ID to Police, and as a result accompanied Police back to Redfern Police Station. It was reported that whilst at the Police Station, the Applicant became abusive and argumentative towards police before eventually providing his details to Police. 3. Information Report I 48406279: On 31 May 2012, the Applicant attended Eugowra Police Station to make a complaint about inaction from Cowra Police in relation to a parking complaint at a local church. The report made by Police noted that since moving to Eugowra, the Applicant "had made a number of complaints to police such as stealing, trespass and parking complaints. Police have taken each complaint on its merits, however have found each one to be doubtful due to lack of evidence and changes to versions each time when spoken to by police". The Applicant was unsatisfied with the explanation provided by Police regarding the urgency of the matter he was complaining about, and indicated that he would be making a formal complaint in relation to it in the future. 4. Event report E 630101865: On 29 January 2016, Police were patrolling the Parkes township in an un-marked vehicle and they observed a vehicle driving erratically and at speed within a built up area. The vehicle was stopped and the Applicant (who was driving) was spoken to by Police about his manner of driving. It was reported that the Applicant became apprehensive and questioned Police policy and procedure. A check of the Applicant's history indicated that he had previously had an interaction with Police for being in possession of a weapon, being a 'bush knife'. The vehicle and the Applicant were subsequently searched. At the time it was reported that the Applicant did not have his drivers' licence on him. 5. Event report E 75720863: On 30 June 2020, Police were called to the Applicant's property due to a vehicle being parked on the council verge at the border of the Applicant's neighbour's fence. The Applicant's neighbours stated that they had ongoing issues with the Applicant. The Applicant stated that he had had a number of issues since moving in, including: 1. his neighbours had used his top driveway to drive in at the rear of his yard to gain access to the rear and topside of their yard (which was a setup with previous owners); 2. a neighbour complained that the Applicant had been capturing wild birds and made a complaint to the RSPCA, which resulted in an inspection and nil findings; 3. Council had made complaints regarding the state of the Applicant's house; 4. He had made complaints to Council regarding a 'Neil Morrison' transport truck being parked opposite his residence and waking him at 3am; 5. his neighbours allegedly stealing water shortly after he moved in and travelled to Western Australia for four months; 6. his neighbours had purposely used water to drown his plants; 7. his neighbours had been washing their house during water restrictions; 8. the Eugowra locals had never accepted him and certain "townsfolk" had upset him not long after he moved in; and 9. an unknown neighbour had deflated the tyres of his truck. 1. Event Report E 335528794: On 3 July 2020, Police attended the Applicant's property to perform the safe storage inspection. Police noted that this was not prearranged as Police had concerns regarding the storage of the Applicant's firearm. Upon attendance, Police were not able to inspect the safe storage, as the Applicant had constructed his own safe in the roof of his house and informed Police that they would not be able to access the space. He indicated to Police that he could only just get into the space and offered to take photographs of it instead. Police requested that he take some photos of it open, closed and with screws in situ. Video of body worn footage taken on 3 July 2020 accords with the description in the police report. It was noted by Police in their report that, as they had not been able to inspect the safe, the Applicant had failed the safe storage inspection.
2. On 1 September 2020, the Applicant's firearms licence was suspended. Police informed the Applicant at the time of serving the suspension notice that the Firearms Registry were not happy with how the firearm was being stored, given that Police were not readily able to inspect it. The Applicant again informed Police that they would be unable to access the firearm, so Police had to wait outside the Applicant's house while he retrieved it. The Applicant also explained the construction of his safe to Police, however Police were not able to witness it and indicated that the photographs that had been provided did not assist. Video of body worn footage taken on that date accords with the description in the police Event report E 146549301.
3. On 7 September 2020, a report was made by Police - Information report I 76104771 - which included information that the Applicant had driven to the "Man Monis trial" and questioned the police prosecutor in the break and was then escorted from the court case. The report also noted that the Applicant "has been in [gaol] in other countries" and related information regarding the previous attempts to inspect the Applicant's safe storage. On the basis of information that the Applicant was "supportive/sympathetic" to Man Monis, Police formed the view that on the grounds of public safety, his licence should not be re-issued. Police also queried the Applicant's genuine reason for having a firearms licence, given that the location and state of the firearm suggested that it had not been used for some time.
4. On 22 November 2020, Police attended the Applicant's property to obtain further information in relation to his involvement in the Lindt Café Siege Coronial Inquest, and to re-issue a new suspension notice. Whilst being questioned by Police, the Applicant indicated that: 1. he felt that the media reporting in relation to Man Monis was offensive, and that all Man Monis had been trying to say was that "his letters were his weapon"; 2. he disagreed with the questioning of the Head of Security at Channel 7, and noted that no one had sought to object on behalf of Man Monis in relation to how an incident between Man Monis and the Head of Security had been characterised as unreasonable; 3. there was no one "representing the dead"; 4. he had not been escorted out of the Court but left of his own free will; 5. he doesn't read the Quran or the Bible and doesn't have a copy of either; 6. he had previously been sentenced to gaol for contempt of court in relation to a Federal matter, as he had disagreed with a court order; 7. his purpose for acquiring a firearm was so that he could shoot feral goats and skin them, although he had "a bit too much on at the moment"; and 8. Police had been fed lies and malicious information.
5. Video of body worn footage taken on 22 November 2020 accords with the account in police Event report E 76948418.
6. According to Event report E 78874818, on 2 March 2021 Police attended the Applicant's property, knocked on his door, however there was no answer. Then on 4 March 2021 Police again attended the Applicant's property to check on his wellbeing following the seizure of his firearms and discuss his options. It was reported by Police that the Applicant was angry his firearm was seized and he was of the belief that it had been done illegally. He also noted that "he received a letter from NCAT or a minister of some sort that he is on a watch list as he threatened a judge". The Applicant also expressed disappointment with the local police officer for "allowing a town full of bullies" to run all over him by parking on his driveway and stealing his water. It was further reported by Police that the Applicant "continued to rant about how the Australian government has deemed Mr Monis to be a home-grown terrorist and deemed all people of Islamic faith to be suspects of future attacks", and also sought to explain to Police that Christianity was the main cause of a number of terror incidents.
7. Video of body worn footage on 2 March 2021 and 4 March 2021 accords with the police reporting in Event report E 78874818. In addition, the video footage contains the Applicant's voiced opinion that Man Monis' protest in "plastic chains" in which he was "waving a piece of paper and pen around saying "this is my bullets, this is my gun"" reminded him of "grainy black and white Cinefilm of Neville Chamberlain getting off an aircraft waving a piece of paper around after negotiating with Adolf Hitler announcing "Peace in our time"", and "because the piece of paper didn't work, well the bullets and guns were used. I'm just making the observation that Man Monis has written letters, and there's the Australian media mocking him".
8. [NOT FOR PUBLICATION]

Applicant's evidence

1. A large proportion of the documentary evidence filed and relied on by the Applicant was relevant only to the Applicant's complaints about his neighbours, the police, the local council, the conduct of proceedings by the Respondent, the conduct of a confidential hearing and tendering of confidential evidence despite his objections, and minor inaccuracies or inconsistencies in the police reports relied on by the Respondent. That material included (but was not limited to) excerpts from the dictionary and various military and maritime history books, excerpts from the works of Thucydides, photographs of a dog defecating on a lawn, photographs of cars, photographs of signage, vegetation and debris said to be located at or near the Applicant's property, and blurred photos of a belt buckle. This material was submitted by the Applicant to be relevant to the Tribunal's consideration of the COPS event reports and information reports provided by the Respondent, to the effect that their contents were inaccurate and therefore should not be accepted as evidence by the Tribunal, and that the Tribunal should not be able to receive confidential material from the Respondent.
2. Whilst the Tribunal accepts that there may be some factual inaccuracies and inconsistencies contained in the various COPS reports relied on - including, for instance, whether or not the vehicle he drove in one reported incident was a truck or a lorry, and whether he had signposted his driveway in a particular manner - the Applicant has not provided the Tribunal with any direct evidence other than his verbal statements which contradict the police record of events in respect of those incidents. Nor are the inaccuracies or inconsistencies relevant or material to the matters for determination by the Tribunal.
3. In a letter to the Firearms Registry dated 24 September 2020 the Applicant stated [sic]: I answered to a knock on the door 2nd / 3rd July, it's the local policeman, he said it's come up you have a registered firearm, he said this as a statement. I said to him well you wont be ablee to get up there. (It's/well was up in the roof cavity and I have a pointy roof.) He is a big boy and the hatch to the cavity is 12" short sides. I told Him I had made it my self out of structual steel 8"x4" box section, (he did not seem to understand box section) so I took him out in to the garden and showed him. He asked if I could show where it was, I showed him what part of the roof it was under. I even said I will get a crowbar and take some sheets of iron off the roof to show you an offer he declined. I will take some pictures for you and drop them of at the police station. Well he left and I dropped hard copies of photos of at the local police station, alongwith dimensions wall thickness of box section 155/1000, (roughly the thickness of two 20c without the milled rim.) the base is 1/4" the door well it's not really a door more like a cap it's ¼". The cap/door has 1" box section welded to the inside with a ½" capped pin that goesthrough body through the box section, out the other sidethere is a hole in that end of the pin which is secured with a padlockwhich has a cage weldecd to the side of the body that harboursthe padlockso bolt croppers cannot be used on the shackle. The body has a skirt (if it sticks up is it a skirt?). This prevents a cold chisel/crowbar being inserted between the cap/door and body. This skirt? is on three sides the fourth side being against the wall or facing down prevents entry from that side, Twasheld to the joist in the roof cavity by 5 by 3"x5/16" coach screws. He asked about ammo, seperate steel box locked and I told him I had removed the bolt and that was kept in my travelling sewing box. If I am away from home travelling sewing box travels with me. Well he came around on the 1st September 2020 (no communication since 2nd/ 3rd July) to tell me he was siezing my firearm. He had a sheaf of papers on safe storage all the does and don'ts. Well I wanted to know why? because he could not inspect it (send a smaller policeman), did not think roof cavity passed muster (did't know only thought) and was not sure about (requirments for) home made gun safes (the requirments are the same for both home made and bought). He also wanted to know how I knew the coach screws where tight enough, I said I tightened them till they felt right; well how do you know they are tight enough and he persisted with this line (well o.k. it could be a fair question but the same could be said about a bought one). So I said to him give me a torque setting and I will set then to it. (It's not covered in your literature one of the documents he gave me is "safe storage level one Category A&B Requirments". A) steel construction, 155/1,000 That wall thickness is thicker than a bought A&B.and not easly penetrable. (As a matter, of intrest, I rang The Australian Memorial, To inquire about the Thickness of British Commonwealth Second World War tin hats? 20 gauge (40/1,000) my walls are a cats whisker shy of four times this value. B) ceiling joists in roof cavity are 3"x2" as are wall studs 5 of 3"X5/16" coach screws exceeds the commissioners spec. of 4 of 2&9/16X5/16 (65X8 metric). Further more The roof cavity is a confined space limiting room to lever and gain purchase foot might go through the ceiling. C) 40 mm padlock with hardened steel shackle. Mine is in it's locked position enclosed in steel harbour prevention use of bolt croppers on it. D) ammo in separate steel box locked key removed. ?)you don't have a requirment for this my bolt is removed and is kept not in the house but in my travelling sewing box. That looks to me like it passes muster. No contact was made to arrange a "mutually agreed time" If he wanted to touch inspect the safe all he had to do was say so after I gave him the photos.I could have arranged for gun shop to hold firearm and got the safe out of the roof cavity. E) Police will advise 'alterations required" he could have done that on first visit, 2nd / 3rd July. Not happy in roof cavity want it against wall. I say I have exceeded your specs. and your entreaty "all reasonable percautions" If I get burged a burglar is hardly going to find a ladder to get up in to the roof cavity. Furthermore a home made safe is not obviously a gun safe. Abought gun safe looks like a gun safe, therefore drawing attention to it's self also people out to steel firearms can go into any gun shop and inspect shop bought gun safes from the inside, therefore knowing the best way to remove or bust in to them, (There seems to be anoddity in this gun safe area. Apolice- man in one village can pass a safe an identical safe in another village another policeman can knock it back.) I have exceeded the commissioners engineering specs and entreaty "all reasonable percautions" by takings unusual percautions. I did ring your organisation and asked a few questions.- Nat escalated the matterbut to the question can I weld my gun safe to a steel frame in my garage (visible from my house) the answer was no. but shewouldescalate the question. I still have not heard back. There are quite a fewsteel framed homes these days, those frames are not suitable for coach screws, but you could weld to them. But that would not passmuster.
4. The Applicant's oral evidence at hearing in relation to his storage of the firearm and his communications with police about the firearm and storage on 3 July 2020 and afterwards was consistent with his letter to the firearms registry of 24 September 2020. He stated that he was able to access the roof cavity in which the firearms storage container was bolted using a step ladder. The video evidence supplied by the Applicant was also consistent, specifically showing that the firearm storage was a home-made steel container made from a section of closed square metal pipe, located in the roof cavity, accessible only through a small hole in the ceiling. The roof cavity is too small for the Applicant to stand in and he appears to be accessing the firearms storage while reaching into the roof cavity from the room below. The video footage DSCF0026 shows the Applicant opening the steel storage box by unlocking a tightly inserted padlock with a key, removing the padlock, hammering through a metal bolt and using a screwdriver as leverage, and using a metal post to lower the panel previously kept in place by the bolt. The Applicant demonstrates in the video that bolt cutters would not be able to gain purchase on the storage container for the purpose of forced entry. Video footage DSCF0060, DSCF0063 and DSCF0081 similarly show the Applicant opening or closing the firearm storage container.
5. The Applicant's video footage provided to the Tribunal includes date stamps in January 2017. Similarly the photographs provided by the Applicant to the Respondent regarding his safe storage and for irrelevant purposes are either undated or include date stamps in 2016 and 2017. In evidence the Applicant stated that the date stamps were not accurate and that he couldn't change the date on the camera. He gave no evidence as to when exactly each of the videos or photographs were taken.
6. The video of body worn footage taken by police at the Applicant's premises on 3 July 2020 and 1 September 2020 confirms that the Applicant explained to the policeman attending his residence on those dates that he would not be able to access the firearms storage due to his size, and confirms that the Applicant offered to remove sheeting from the roof to provide access. The footage also demonstrates that when the police attended the Applicant's premises for the purpose of seizing the firearm following the suspension on 23 November 2020, the police were not able to get it themselves, and it took some time for the Applicant to bring it outside to them for the purpose of the seizure.
7. The Applicant claimed that the safe storage inspection on 3 July 2020 was illegal because it was not conducted at a mutually agreed time, as per s 19(2)(c) of the Act. Nevertheless he had offered the police that he would "take a few sheets off the roof" to allow them to access the storage for inspection, which they declined.
8. The Applicant disputed the Police account of what had occurred at the Lindt Siege Coronial Inquest in 2017. At hearing he reiterated his version of the event as he had previously described to police on 22 November 2020 (see 42 above). He also stated that police had failed to "use the right armaments" in the siege, and that if there was concern of a bomb there should only have been two officers present. He reiterated that he did not have sympathetic views towards Man Monis as a person, but was concerned with the unfair treatment of a person who was dead and couldn't represent themselves.
9. The Applicant gave evidence that his failure to declare in his licence application form that he was known by another name, Andrew Randles, was inadvertent and an oversight. He claimed the question on the form was not framed in the same manner as the rest of the document and he therefore missed its significance, and that the Police were negligent in not checking his application at the time - back in 2017 - because they had a duty of care to do so. Had they raised it with him at the time he "would have been forthcoming".
10. The Applicant agreed that he did not go shooting often, stating that he had originally obtained the licence in 2017 for the purpose of pest control with permission to shoot feral goats, with the aim of tanning the hides himself. However he had not attended any land for the purpose of hunting or pest control since 2017, because he "had a bit too much on", the landowner hadn't contacted him, and the drought affected the number of pests.
11. The Applicant stated that he had purchased his firearm in the 1970s or 1980s and had it registered then, claiming he had a "shooter's licence", but when he went to renew the licence he was unable to do so because he was given incorrect information by police as to where he needed to do this. He did not provide the Tribunal with a copy of any licence or registration obtained prior to 2017. He claimed he had walked around Sydney for half a day trying to figure out where he could get the firearm renewed at that time and ultimately gave up. He carried the firearm occasionally in a vehicle he described as "my little lorry" in the 1970s and 1980s. In 2010 he had purchased the Cooper Street property at Eugowra where he was currently residing, and had made the gun safe around then too. Prior to that he had stored the firearm at the back of a wardrobe when he was living in Orange.
12. In 2017 he wanted to do some hide tanning so he registered the firearm then during a firearms amnesty. He did this by travelling to Sydney, with the firearm in his vehicle covered up by some sleeping bags "so it was not observable". "The firearm was wrapped up in bushwalking trousers, then in a box, then covered up - I have lots and lots of useful equipment". He slept in the car overnight with the firearm when he went to Sydney to register it.
13. Once registered he travelled to Western Australia but claims to have not taken the firearm with him, only taking the bolt of the firearm because "it travels in my sewing box. I always keep the bolt separate to the firearm". He generally kept the sewing box "in the vehicle". The firearm was kept in the roof of his Eugowra property, and the ammunition was kept by him in a locked metal tin with a collection of junk on his sewing table. It was "camouflaged amongst a whole lot of rubbish".
14. The Applicant agreed that he had possession of the firearm between the 1980s and 2017 without having a firearms licence during that time. He said that this was because police didn't tell him where to renew his licence, and claimed that he was not aware of the multiple firearm amnesties which were held in the twenty years prior to 2017. He recalled the Port Arthur massacre but did not recall any subsequent firearms amnesties because he claimed to not have a television and "didn't listen to the wireless". He occasionally bought a local paper called "The Land" but claimed that didn't contain information about amnesties. He didn't recall an amnesty in 1998 for the same reasons, and claimed that the first firearms amnesty he was aware of was the 2017 amnesty, because by that time he had a television.

Safe storage requirements

1. Part 4 of the Act deals with the safe keeping and storage of firearms. The Applicant has provided evidence of the manner in which he stored his firearm, for the purpose of demonstrating that it complied with or exceeded the requirements of the Act and Regulations.
2. The Applicant's evidence was that he constructed his own safe and installed it in the roof cavity of his home, using the ceiling joists and 5 coach screws of 3 inch x 5/16 inch size which exceeded the Commissioner's requirements of 4 coach screws of 8mm x 65mm size. The receptacle itself was stated to be an 8 inch x 4 inch steel rectangular tube with 4mm wall thickness, with ends secured by a 40mm padlock and 7mm thick metal sheeting.
3. He submitted that he had complied with s 40(a), (b), (c), and (d) of the Act, that he had fixed the receptable to the floor joists with appropriate coach head screws, and had satisfied the minimum standards for an external locking mechanism, with his video demonstrating that it could not be jimmied open. However the video footage supplied by the Applicant fails to provide support for those submissions because, on the Applicant's own evidence, the date stamp is unreliable, and it does not allow for examination or measurement to determine whether the materials used do, in fact, comply with or exceed the minimum requirements.
4. Section 40(2) of the Act allows an individual to make alternative arrangements for safe storage, which would include homemade receptacles, provided that they satisfy the Commissioner that the alternative arrangements are of a standard not less than the requirements set out in section 40(1) of the Act. In this case, the Applicant has not satisfied the Commissioner that the receptacle and the manner it was locked and secured to the Applicant's roof were of the required standard. Concealment of safe storage for firearms is not a requirement under the Act or the Regulations and the Applicant's prioritisation of his storage concealment has resulted in his non-compliance with the inspection requirements. His attempts at "camouflaging" the ammunition for his firearm are also non-compliant with the safe storage requirements.
5. Whilst not expressly stated in the Act or Regulations, I agree with the Respondent's submission that it is a requirement that inspections of the safe storage of firearms be reasonably accessible to those conducting the inspection. The attending police officer was unable to inspect the Applicant's storage in situ because of its location in the roof cavity of the Applicant's residence. The location was only accessible, according to the Applicant, by standing on a ladder in the room underneath and fitting his upper body through a very small manhole, or by the Applicant removing part of his residence's roof. I accept the Respondent's submission that this location was largely inaccessible for the purpose of conducting an inspection.
6. An offer to retrieve the firearm and its storage receptacle, or an explanation of the construction of the safe, is insufficient for the purposes of an inspection. It is entirely unsatisfactory to require the Police to rely on a licensee's description, pictures and video footage of his safe storage compliance without the ability of the Police to conduct their own inspection. Without such an inspection I am not satisfied that the Applicant's evidence demonstrates compliance with the safe storage requirements in the Act and Regulations. I give this consideration significant weight.

Other regulatory non-compliance

1. Of significant concern to the Tribunal is the Applicant's evidence that he retained possession of a firearm for over 30 years without registration and without holding a licence or authority to do so.
2. In the context of the Applicant agreeing that he was aware of the Port Arthur massacre and giving evidence of his knowledge of media reports about Man Monis, including Monis' chained protest and his correspondence with media prior to the Lindt Café Siege, I do not accept the Applicant's evidence that he was unaware of any firearms amnesty in the 20 or so years prior to 2017. I find that evidence entirely implausible given his obvious media exposure to those incidents which occurred in 1996, 2009, and 2014.
3. I accept the Respondent's submission that the Applicant had and has a positive obligation to understand and comply with the laws and regulations regarding firearms possession and registration. There is no evidence before the Tribunal that the Applicant was ever licensed to possess a firearm or had a firearm registered prior to 2017, other than the Applicant's assertion. I therefore do not accept on the evidence before the Tribunal that the Applicant was ever licensed prior to 2017 or ever held such a registration. Even if I were to accept that the Applicant held a licence or registration which lapsed through no fault of his own and was unable, on an unspecified date some time in the 1970s, 1980s or 1990s (prior to the enactment of the current regulatory scheme in around 1996) to locate a place at which he could register his firearm (which I don't accept), this does not excuse the Applicant's failures to be registered or licensed.
4. Of further concern is the Applicant's evidence of storing his unregistered firearm in the back of a wardrobe at his residence in Orange in 2010, and his failure to take "all reasonable precautions" when travelling with his firearm on various undated occasions in the decades preceding its registration in 2017. This evidence demonstrates that the Applicant has failed to comply with the safe storage requirements for decades. His claimed ignorance of those requirements at the time is not an excuse. He was aware enough, on his own evidence, that there was a requirement to register the firearm and there has been extensive advertising of the firearms regulatory scheme and the multiple amnesties which have taken place since 1996 across all forms of media.
5. The Applicant's excuses for his conduct in relation to his failures over decades to comply with the firearms regulatory scheme including safe storage, registration and licensing demonstrate his disregard for those important obligations. His failure to disclose the name of 'Andrew Randles' in his licensing application in 2017, even if inadvertent, further demonstrates that disregard.
6. I accept the Respondent's submission that the Applicant's conduct demonstrates a disregard for the firearms licensing regime and his obligations as a licensee, and I give that consideration significant weight.

Genuine reason

1. At the time the Applicant applied for his licence in 2017, he was able to demonstrate that he had a "genuine reason" for that licence, being sport/target shooting and recreational hunting/vermin control. The information provided by the Applicant to police in 2020 and the evidence provided to the Tribunal in these proceedings demonstrates that the Applicant no longer has a genuine reason for the Category AB firearms licence. Specifically, he has not had the time or sufficient interest or opportunity to go hunting or engage in vermin control as anticipated, has not gone sport or target shooting, and he has also not provided the Tribunal with any evidence to suggest that he currently has a genuine reason to maintain a firearms licence. I give this consideration significant weight.

Risk to public safety and the public interest

1. The relevant contextual matters in considering the public interest in these proceedings include the following: 1. the underlying principles and objects of the Act: section 3; 2. the strict controls under the Act, including: 1. providing a broad power to impose conditions (section 19); 2. providing a broad power to revoke licences (section 24); 3. providing strict safe storage requirements in Part 4, including an overriding obligation in section 39 to "take all reasonable precautions" to ensure safe keeping and that firearms do not come into possession of unauthorised persons;
2. The Respondent submitted that because the Applicant had been the subject of numerous reports by his neighbours and had made numerous reports against his neighbours, the Council and other third parties, that there is a legitimate concern that by the Applicant having access to possess and use of firearms, there is a risk to public safety should any neighbourhood disagreement escalate. While some of those complaints may have been justified, some may have not. However on the evidence before the Tribunal I don't accept that these reports and complaints of neighbourhood disagreements demonstrate a legitimate concern of a risk to public safety, because the Applicant has clearly had possession and access to a firearm for decades and has never used it or threatened to use it for that purpose.
3. The police reports are a different story. Irrespective of minor and immaterial inaccuracies contained in the various police event and information reports, it is clear that the Applicant has an argumentative attitude towards authority and will simply not comply with orders, directions or requests which do not suit him or which contradict his personal views of justice and fairness.
4. When confronted with the inappropriateness or illegality of his actions by police during their various attendances at his property in relation to the firearms licence suspension and revocation, and during hearing by the Respondent's legal representatives, the Applicant deflected responsibility. His response to his accepted failure to register his firearm prior to 2017 was to blame police for not telling him where to register it on one occasion, decades prior. His response to police attending his residence and suspending his licence was to complain that he is the subject of malicious and unfounded targeting by police and to complain about his neighbours' conduct towards him. His response to the allegations put to him concerning his attendance and behaviour at the Lindt Café Siege Coronial Inquest, at which he sat behind a victim's family (whether knowingly or otherwise) and then attempted to raise his concerns about Monis' representation by the media as being "unfair" with counsel assisting, is to complain about the efforts made by the police and court to protect interested parties at the inquest from such inappropriate outbursts, and for him to further defend or otherwise attempt to justify or explain Monis' reprehensible actions. His response to Police informing him that he had failed the safe storage inspection requirements was to blame Police for being unable to inspect an unreasonably inaccessible location. His response to failing to disclose that he was known by another name on his licence application in 2017 was to blame the form itself for not identifying that question as significant, and to complain that Police were negligent in not checking his application thoroughly at the time. His response to the various police event and information reports put to him at hearing was to complain about minor and immaterial factual inaccuracies contained in those records, and to refer the Tribunal to voluminous unrelated printed materials (including excerpts from various military and maritime history books, excerpts from the works of Thucydides etc) for the purpose of complaining that some material was provided to the Tribunal on a confidential basis.
5. [NOT FOR PUBLICATION]
6. At the time the Applicant's firearms licence was issued in 2017 the Respondent was not aware of the Applicant's involvement and interactions at the Lindt Café Siege Coronial Inquest or of his controversial opinions about Man Monis, and not aware that he was the subject of a number of other police event reports. The Applicant submitted that the Respondent had failed to conduct appropriate investigations in 2017 when he applied for the firearms licence and that such failure was negligent, implying that he should not be penalised by the revocation of his licence because of that failure. However the Act and Regulations specifically provide for the suspension and revocation of firearms licences in circumstances such as these, when a licence holder fails a safe storage inspection, or when new information comes to light which demonstrates an Applicant's unsuitability to hold the licence. The Respondent is not restricted by its initial decision in 2017 to grant the licence, or the reasons provided in the suspension notice of 1 September 2020 in relation to any further decisions it made or makes about the Applicant's suitability to hold a firearms licence. Nor is the Respondent limited to those reasons in defending its decision to revoke the Applicant's firearms licence in this Tribunal.
7. The Respondent submitted that the Applicant's failure to reveal his other name on his firearms licence application resulted in the Respondent being denied the opportunity to adequately assess the Applicant's suitability to hold a firearms licence, particularly as a number of criminal records concerning the Applicant were recorded against the name "Andrew Randles". I accept that submission. As discussed in Bladen v NSW Commissioner of Police [2015] NSWCATAD 240 at [53]: …it is not in the public interest for Mr Bladen to continue to hold a firearms licence in circumstances where the licence has been obtained on the basis of an application that is misleading in a material particular - that is Mr Bladen's other identity. 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."
8. The Applicant's attitude to authority and his conduct as described above, including (but not limited to) his vocal opinions about Man Monis, do not fall within acceptable community standards and support the Tribunal finding that it would not be in the public interest for him to have a firearms licence. The Applicant's responses to the matters contained in various police event and information reports, as raised with him in the course of these proceedings, also fail to satisfy the Tribunal that the Applicant poses "virtually no risk" to public safety if he were to regain his firearms licence. These matters carry significant weight.
9. The Tribunal's findings with respect to the risks to public safety and the public interest would be the same even without any of the information provided to the Tribunal by the Respondent on a confidential basis.

Conclusion

1. The firearms regulatory scheme is focussed on protecting the public and "making decisions that are consistent with a need to reduce any risks to a minimum": see Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. Public safety is to be given paramount consideration: see Hill v Commissioner of Police, NSW Police Service [2002] NSWADT 218 at [24]; and the public needs to be confident that those who are afforded the privilege of a firearms licence will comply with the legislative requirements: see Morris v The Commissioner of Police [2002] NSWADT 223.
2. The Tribunal is required to look at the Applicant's conduct as a whole in considering and determining the application for review. The Applicant's failure to comply with safe storage requirements since obtaining his licence in 2017, his failure over the decades prior to 2017 to comply with the firearms regulatory scheme and his demonstrated disregard for it, his attitude towards authority and his failure to take responsibility for his conduct, and his sympathetic views towards Man Monis cannot result in a conclusion that there would be virtually no risk to public safety if he were to regain a firearms licence, and the public could have no confidence that the Applicant would comply with the legislative requirements of the firearms regulatory scheme. It is therefore not in the public interest for the Applicant to have a firearms licence. The Tribunal additionally finds that the Applicant does not have a genuine reason for a firearms licence.
3. For these reasons the correct and preferable decision is to affirm the Respondent's decision to revoke the Applicant's Category AB firearms licence.

Order 1. The Respondent's decision to revoke the Applicant's Category AB firearms licence is affirmed. 2. The confidentiality orders made 3 June 2021 are continued.

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: 01 July 2022