Jardine v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2023-05-19

Summary

In October 2021 the Applicant, Mr Jardine, had his firearms licence and permits revoked by the Commissioner of Police on public interest grounds. He has applied to the Tribunal for an administrative review of the revocation decisions.

Is there any utility in conducting the administrative review?

Mr Jardine's licence and permits were due to expire in November 2021.
The Tribunal cannot reinstate the licence and permits even if Mr Jardine's application for review results in the setting aside of the revocation decisions. In that event Mr Jardine would still need to make a fresh application to the Firearms Registry: see Sawires v Commissioner of Police [2010] NSWADTAP 68 at [12] (the reasoning in Sawires is pertinent to this case even though it is in respect of a different licensing regime - the Security Industry Act 1997 (NSW)).
I have had to consider whether there is any utility in conducting the administrative review. I think there is, since the Tribunal's views, one way or the other, on the correctness of the Commissioner's decision may assist the determination of any future applications Mr Jardine may make.
I have decided that Mr Jardine's licence and permits should not be revoked. These are my reasons for reaching that conclusion.

Relevant law

Mr Jardine had a category ABC firearms licence and a firearms general permit issued under the Firearms Act 1996 (NSW), and a prohibited weapons permit issued under the Weapons Prohibition Act 1998 (NSW). The licences were for various types of rifles, of which Mr Jardine had three, and the permits were for a rifle silencer.

Firearms legislation and the public interest

Section 24(2)(d) of the Firearms Act authorises (but does not mandate) the revocation of a firearms licence 'for any other reason prescribed by the regulations'.
Clause 20 of the Firearms Regulation 2017 (NSW) (the Regulations) provides one such reason - 'if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence'.
Corresponding provisions in relation to the revocation of a firearms permit are s 30(4)(b) of the Firearms Act and clause 21(1)(a) of the Regulations.
These are the provisions the Commissioner has relied on in respect of the firearms legislation.

Prohibited weapons legislation and the public interest

The position with respect to the rifle silencer permit does not seem to be quite as straightforward as the position under the firearms legislation.
Section 18(2) of the Weapons Prohibition Act sets out the circumstances in which a permit issued under that Act may be revoked. They include: 1. 'for any reason for which the permit holder would be refused a permit': paragraph (a); 2. 'if the Commissioner is of the opinion that the permit holder is no longer a fit and proper person to hold a permit': paragraph (c); 3. 'for any reason the Commissioner considers sufficient in the circumstances': paragraph (d); and 4. 'for any other reason prescribed by the regulations': paragraph (e).
The Commissioner relies on s 18(2)(a), in combination with s 10(4) of the Act. Under the latter provision the Commissioner 'may refuse to issue a permit if the Commissioner considers that the issue of the permit would be contrary to the public interest' (my emphasis). That gives rise to the question whether s 10(4) states a reason for which the permit holder would be, rather than may be, refused a permit, such as to engage s 18(2)(a). If it does not, then the Commissioner would have to base her case on either paragraph (c), (d) or (e) of s 18(2), which she has not done. In fact, if the case were to be based on paragraph (e) it would go nowhere, since there is no 'reason prescribed by the regulations' permitting the revocation of a permit. (Clause 6(2) of the Weapons Prohibition Regulation 2017 (NSW) authorises the refusal, but not the revocation, of a permit on the public interest ground.)
It is possible that in that brief analysis, undertaken since I reserved my decision, I have overlooked relevant provisions that may lead to a different conclusion. Neither party's submissions explored the point, so it would be inappropriate for me to express a definitive view on s 10(4) and its interaction with s 18(2)(a). But I encourage the Commissioner's representatives to give the matter some consideration and analysis. While it is not a critical question in this case, it may be critical in other cases coming before the Firearms Registry.

Jurisdiction

The application to the Tribunal is brought under s 75(1)(c) of the Firearms Act and s 35(1)(c) of the Weapons Prohibition Act. The administrative review is to be conducted under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act).
Subsection 63(1) of the ADR Act provides that in determining the application, the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it.

Mr Jardine's behaviour that led to the revocation decisions

The Commissioner aptly describes Mr Jardine's behaviour, some of it dating back to 1995, as a history of 'verbal and physical aggression toward other members of the public' and 'verbal aggression toward the police'. It is a history of behaviour no-one would be proud of.
The more serious incidents occurred: 1. In December 1995, when as a 26-year-old affected by alcohol Mr Jardine used offensive language in a public place. 2. In March 2008, when Mr Jardine approached a police car that was conducting a vehicle stop by the side of the highway. Mr Jardine berated the officers for stopping in a spot he considered dangerous, yelling at them 'Get your car off the road, what are you stupid or something, get off the road now.' The officers questioned Mr Jardine, took his licence details and confiscated a pocket knife he had in his possession. 3. In August 2011, when Mr Jardine had parked his utility on the footpath outside his property while he was doing some renovations. He had left the driver's side door of the utility open. A passer-by had slammed the driver's door shut as he passed the vehicle and Mr Jardine said words to the effect of 'Fuck off or I'll smack ya with the shovel.' Police were called; they spoke to Mr Jardine but took no further action. 4. In May 2014, when police were called to Mr Jardine's bakery premises after an argument between Mr Jardine and one of his employees. The facts are unclear; Mr Jardine's wife called the police, claiming the employee was in possession of a knife and had hit her husband over the head with a steel bar. On arrival the police were unable to find a weapon on the employee who was described as 'cooperative and compliant', and who claimed Mr Jardine had thrown him to the floor. At least one of the attending officers thought Mr Jardine may have been the aggressor - an assessment based on Mr Jardine's demeanour and unwillingness to provide details of what happened. Later that year, on at least two occasions Mr Jardine contacted police, apparently wishing to have them charge the employee in relation to the incident. With the matter not progressing to Mr Jardine's satisfaction, one officer claims Mr Jardine became aggressive and yelled words to the following effect at him: 'You are fucked, fuck you, you can't do your job properly.' 1. In September 2018, when Mr Jardine was attending his local waste transfer station. He became agitated when the EFTPOS machine wasn't working, complained to the female employee about the cost of waste disposal and said to the employee words to the effect of 'The boys and I speak about how we can rob you. I would just lock the gate, come through the bush and put a gun to your head and rob you. … Thanks for fucking up my week.' 2. In February 2019, when Mr Jardine was attending the local annual show. Police witnessed Mr Jardine yelling and swearing at the then Deputy Premier of NSW, John Barilaro, saying repeatedly to Mr Barilaro 'Don't tell me to fuck off.' It is not clear what motivated Mr Jardine's outbursts. Mr Barilaro indicated to police that he knew Mr Jardine and didn't want any action taken in relation to the incident. 3. In April 2021, when Mr Jardine approached two council workers and a member of the public who were meeting on the street to discuss roadworks being undertaken, some of them in the vicinity of Mr Jardine's place of business. The member of the public (I will call him Mr A) claimed Mr Jardine invaded his personal space; the two men became involved in what was described as an 'altercation'. The police applied for and were granted a provisional Apprehended Personal Violence Order (APVO) against Mr Jardine for the protection of Mr A. Mr Jardine was charged with common assault and ultimately found not guilty in the Local Court; the APVO was dismissed.
It was only a matter of months after this last incident that Mr Jardine's licence and permits were revoked.
There are other events recorded in the documents lodged with the Tribunal under s 58 of the ADR Act (the section 58 documents) but it is unnecessary to go into any detail about them. Suffice to say Mr Jardine has shown himself over a reasonably long period to find it difficult, on occasion, to mind his own business; to deal with other people respectfully and to avoid the use of intemperate language; and to consider the effect of his language and physical actions on others.
He said in his written statement: I am a passionate believer in fairness and justice and love the local community that I live in. So when I see rules, regulations, systems and events that are introduced that impact my community or my business I feel that it is important to speak up. I believe that in today's society many new rules and regulations are introduced without consultation and consideration as to their full impact. If no one speaks out and just lives with them, then our community will be worse off. I find the process to address these issues very frustrating and have let my frustration and temper show on a number of occasions.
That provides, at best, slim justification for some of Mr Jardine's actions.
In the witness box he explained, for example, in relation to incident (5) above, that he was trying to point out how vulnerable the council employee was, in an isolated location and in possession of potentially large amounts of cash. He seems to have been slow to realise how much more vulnerable his language could have made the employee feel. It is not to the point that she may have first thought he was only joking, and actually played along with the 'joke' to some extent. He now realises there are better and more effective ways to implement improvements to the employee's workplace safety than to threaten her with putting a gun to her head.
In relation to incident (3), Mr Jardine said there is 'no way' he intended to carry through on his threat, which he says he made 'in the heat of the moment'. He puts incident (7) down to an overreaction by Mr A - with whom, it seems, he has had some run-ins over the years. Mr Jardine says his motivation in approaching the three men was to clarify that in any discussion of the roadworks being planned, Mr A did not speak for Mr Jardine or his business.

Mr Jardine addresses his behaviour

Mr Jardine undertook an anger management course over the period December 2022 to February 2023. He said in his statement that the body of material he was presented with in the section 58 documents made him 'deeply consider my behaviour and its consequences', and so he enrolled in the course.
His psychologist, Ms Maxwell, provided a report indicating he has made some progress. She considers he realises some of his frustrations are with himself and his need for perfectionism, justice, safety and respect.
During the hearing Mr Jardine did not deny or seek to minimise his past behaviour. He volunteered the self-assessment that he had been 'making a complete dickhead of myself'. I couldn't have put it better myself.

The public interest

There are many cases, not only in this Tribunal but elsewhere, that have discussed the public interest concept.
In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 an Appeal Panel of the former Administrative Decisions Tribunal (ADT) said at [25]: The 'public interest' is an inherently broad concept giving the appellant [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual.
Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 is another decision of the Appeal Panel of the former ADT. At [33] the Panel said: 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.
In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court 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 Commission's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation.
As an Appeal Panel of this Tribunal explained in Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 at [24]-[25]: The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the 'overriding need to ensure public safety': Firearms Act s 3(1)(a). Public safety is improved by 'imposing strict controls on the possession and use of firearms' and by 'promoting the safe and responsible storage and use of firearms': Firearms Act s 3(1)(b). The objects of the Act include 'to establish an integrated licensing and registration scheme for all firearms;' 'to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;' and 'to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms': Firearms Act, s 3(2)(b), (c) and (d). In that statutory context it is uncontentious that a relevant consideration is the applicant's previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant.

The Commissioner's submissions

The Commissioner notes that a firearms licence is a privilege, not a right. So much is clear from s 3(1)(a) of the Firearms Act, which provides that one of the underlying principles of the Act is 'to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety'.
The Commissioner submits Mr Jardine has exhibited a sustained pattern of behaviour that warrants the revocation of the licence and permits. She questions the level of insight Mr Jardine has displayed into the impact of his behaviour on others, describing that behaviour as 'aggressive, belligerent and cantankerous'. In closing oral submissions Mr Mattson, for the Commissioner, accepted that Mr Jardine has made some progress in addressing his behaviour, by undertaking the anger management course, but submitted this is not enough. 'His journey has commenced', it was said, but much more is needed.

Mr Jardine's submissions

Mr Jardine's fundamental submission is that he now recognises his past poor behaviour and has moved to address it.
He also relies on the four 'character references' tendered on his behalf.

Consideration

The character references are of little assistance since, with the exception of the statement from Mr Jardine's wife, there is no acknowledgment of any of the events set out in [18] of these reasons apart from incident (7).
I turn then to my assessment of Mr Jardine's past behaviour, which is that it has demonstrated repeated stupidity and poor judgment. One may wonder why it took an apparently intelligent man until the age of 53 to understand that he has been, on several occasions, 'a complete dickhead' by acting the way he did. His 'gun to the head' comment to the council employee (incident (5) in [18] above), his intemperate approach to the police officers by the side of the highway (incident (2)), his rudeness and offensive language to police (incident (4)), his heated interaction with the Deputy Premier (incident (6)): each one of them is an example of impulsive, ill-considered and regrettable behaviour.
But the real question in the context of the public interest consideration (the only ground on which the Commissioner's case is based) is whether there is, or would be, a real risk to public safety if Mr Jardine's licence and permits were not revoked. I don't think there is.
There has been no incident involving actual physical violence, with the possible exception of incident (4) - although that is anything but clear. (I take into account how unlikely it is that Mrs Jardine would have called the police, as she did, if she had considered her husband the aggressor.) The instances of stupidity and poor judgment, regrettable as they are, sit at the lower level of seriousness. Added to that is the insight Mr Jardine has gained from the sessions with the psychologist. It is those sessions, in my view, that have helped him to see how unacceptable his behaviour, and how unreasonable his treatment of others, has been.
There is no evidence before the Tribunal that Mr Jardine has contravened any provision of the firearms or prohibited weapons legislation and, while that is not determinative, it is a relevant factor to take into account.
I find the risk to public safety to be so low that the revocation of Mr Jardine's licence and permits is not the correct and preferable decision.

Conclusion

The decisions under review are set aside. I substitute the following decisions: 1. Mr Jardine's firearms licence is not revoked. 2. Mr Jardine's firearms general permit is not revoked. 3. Mr Jardine's prohibited weapons permit is not revoked.

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: 06 July 2023

At a glance

Court

Decision date

Source

Judgment (14 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (2)

Cited By (1)