Kassem v Commissioner of Police [2021] NSWCATAD 213 | Case summary

Is it contrary to the public interest for the applicant to continue to hold a firearms licence?: s 24(2)(d) of the Act and cl 20 of the Regulation

Section 24(2)(d) of the Act provides that a licence may be revoked for any reason prescribed by the Regulation. Clause 20 of the Regulation provides 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.
The expression "public interest" is not defined in the Act. A decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the 'public interest' is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. The "public interest" factor allows a consideration of issues going beyond the character of the applicant to be taken into account. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].
In his statement dated 15 October 2020 the Applicant wrote that that he has never been in trouble with the law, and that he had a clear record other than a speeding ticket. He wrote of compliance when a (safe storage) spot check was undertaken by Police. He also wrote of his "need" to hold a firearms licence because he said he had recently purchased a rural property which he intended would become his primary source of income. Private interests, however, are not the only matters taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]. The concept includes standards acknowledged to be for 'the good order of society and for the well-being of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63.
The Tribunal has referred many times to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) where Hennessy DP 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. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] - [66].
The principle in Ward is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. Since Ward, Hennessy DP has cautioned against applying that language in a mechanistic way: see AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].
The underlying principles stated in s 3(1) of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. These controls include the requirement that a licensee comply with his or her obligations in relation to participation and also comply with the conditions of a licence. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 [at 23]. In considering whether an applicant should retain a firearms licence, the question is whether there is in all the circumstances a real and appreciable risk to the public. Where there is the possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Lee v Commissioner of Police [2020] NSWCATAD 144 at [94].
The Applicant has contravened a number of provisions of the Act and the Regulation, as well as conditions of his licence, by failing to comply with the participation requirements in clauses 107 and 108 of the Regulation. It was submitted on the Applicant's behalf that it was an "unintended breach". The public interest requires, however, that licensees be aware of, and comply with, the legislative requirements for holding a licence: Vella v Commissioner of Police, New South Wales Police Service [2003] NSWADT 91 at [4], and Cook v Commissioner of Police [2003] NSWADT 30 at [34]. Responsibilities of licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police [2005] NSWADT 75 at [25].
In Todorovski v Commissioner of Police [2019] NSWCATAD 192 at [130], the Tribunal found that disregarding the requirement to support a genuine reason, particularly for a number of years, was not in the public interest. The Tribunal noted that: ...the admitted total disregard of the requirement over a period of five years in that case was a substantial dereliction that could not be overlooked. In those circumstances it cannot be in the public interest for the license to continue to hold the licence.
The Respondent submitted that that three members of the Applicant's family who held firearms licences had also failed to comply with the participation requirements. Also, that on 13 January 2021, the Applicant's brother was charged with an offence under s 70 of the Act, for making a statement that he knew to be false in a material particular in an application under the Act, by certifying that he could "satisfy the legislative requirements and produce evidence of [his] genuine reasons as specified within this application. I have disregarded the evidence in relation to the Applicant's relatives; there was no evidence whatsoever that their conduct was relevant to that of the Applicant.
I accept that the Applicant came to the adverse attention of Police in 2010, when he was the driver of a vehicle that was stopped by Police for travelling slowly, and that he appeared nervous, was shaking and he potentially provided Police with inaccurate information. Although the Applicant was not charged with any offence it is inconsistent with the Applicant's claim in his statement that he "has never been in trouble with the law".
The Applicant's solicitor referred me to the recent matter of Prevetera v Commissioner of Police [2021] NSWCATAD 133 in which the decision under review was set aside notwithstanding a breach by the Applicant of his obligations under cl 111 of the Regulation in relation to notification about membership of more than one club. It was also submitted on the Applicant's behalf that his statement demonstrated that he was remorseful. His solicitor referred to Jameson v Commissioner of Police [2019] NSWCATAD 25 and Hook v Commissioner of Police [2020] NSWCATAD 250 in which the Tribunal's discretion was exercised in favour of each applicant where there was remorse and a low likelihood of re-offending.
Each matter turns on its own facts. I am not prepared, in this matter, to accept that the Applicant's contrition overcomes his disregard for the regulatory scheme.
A firearms licence is a privilege, not a right, and the enjoyment of that privilege is conditional upon the overriding need to ensure public safety. In considering whether an applicant should be afforded the privilege to hold a firearms licence, the Tribunal has held that where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm.
The Tribunal is required to look at the Applicant's conduct as a whole. Having regard to the Applicant's ongoing contraventions of the Act and conditions of his licence concerning participation requirements, and to a lesser extent, the information provided confidentially, I cannot be satisfied that the discretion should be exercised in the Applicant's favour. In my view it would be contrary to the public interest for the Applicant to have a firearms licence.

Contravention of the Act and failure to comply with licence conditions

Section 7A of the Act provides that contravention of a condition of a licence is an offence. Under s 19 of the Act, the Commissioner has broad powers to issue a licence subject to conditions, and such other conditions as may be prescribed by the Regulation. A number of provisions in the Regulation concern requirements of licence holders as a result of the genuine reasons relied upon to justify obtaining a firearms licence. For the genuine reason of sport/target shooting, cl 29(a) provides that such a licence is subject to the condition that the licensee must comply with any applicable requirements of Part 10 in relation to participation requirements for club members. Similarly, for the genuine reason of recreational hunting/vermin control, cl 31 provides that such a licence is subject to the condition that the licensee must comply with any applicable requirements of Part 10.
The participation requirements under Part 10 of the Regulation relevantly include that the holder of a licence issued for the genuine reason of sport/target shooting must be a member of at least one approved shooting club and must, during each compliance period for such a club of which the person is a member, participate in not less than 4 shooting activities of an approved shooting club: cl 107. Similarly, cl 108(1) provides that the holder of a licence issued for the genuine reason of recreational hunting/vermin control to a member of an approved hunting club must be a member of at least one approved hunting club and must, during each compliance period for such a club of which the person is a member, participate in no less than 2 hunting club events.
'Compliance period' for an approved club means each consecutive 12-month period that starts on the day of the year that the club has determined to be the start of its compliance period for the purposes of participation by club members: cl 105 of the Regulation.
When the Applicant's licence application was made in 2013, the sole ground on which he established the genuine reasons of sport/target shooting and recreational hunting/vermin control was membership of the Sporting Shooters Association of Australia (SSAA). In his re-application dated 1 January 2019 he was not obliged to again specify his genuine reason, but the form contains a declaration that the Applicant could satisfy the legislative requirements and produce evidence of his genuine reasons. I accept that, by the 're-application' he sought a continuation of his licence on the same basis as before.
Records of the SSAA were provided in the s 58 documents. That organisation's compliance year is from 1 April to 31 March the following year. According to the records the Applicant had become a member on 19 September 2013 and his membership expired on 30 September 2017. He rejoined on 8 January 2018, which membership expired on 31 January 2020. According to the records the Applicant failed to comply with minimum attendance requirements in the following compliance periods: 2016/7, 2017/18, 2018/19, and 2019/20. In particular, the Applicant failed to participate in at least 4 target attendances: cl 107 of the Regulation, and failed to participate in at least 2 hunting club events: cl 108 of the Regulation.
The Applicant admitted in his statement of 15 October 2020 that he had not participated in 4 shooting activities and 2 hunting activities per year from April 20172. He noted that "over the years" he had gone "far and beyond the recommended shooting/hunting activities". In this regard I observe that the SSAA records note his target participation in 2014/15 and 2015/16 was 12 and 7 shoots, respectively; his hunting in the same periods was recorded as 14 and 6, respectively. However, there is no provision for any averaging process of participation. Consequently, the fact that, during some compliance periods the Applicant had enthusiastically engaged in shooting and hunting activities, does not detract from his failure to meet his obligations in all periods.
Messrs Hallak, Eid and Alameddine in their references all wrote of going on many hunting trips the Applicant, including hunting on a number of properties. Mr Hallak also mentioned that the Applicant had been shooting on his land on 6-8 occasions between December 2018 until the Applicant's licence was suspended in September 2019. What was written in the reference was not couched as an express permission to shoot on his land, and the Applicant did not provide such a document to the Firearms Registry to support his genuine reason of recreational hunting/vermin control. It was unclear if the Applicant had informed the Firearms Registry to this effect but certainly no evidence was available that he had done so. I was informed by the Respondent's representative that, had he done so, he would not be considered to be in breach of cl 108 from the date that written permission is provided. It remains though, that he could not satisfy cl 107 in relation to sport/target shooting.
I am satisfied that the Applicant has contravened s 7A(2)(b) of the Act, by contravening a condition of his licence by his failure to participate in target attendances and hunting club events as specified, and this constitutes an offence. No charge was laid against the Applicant. However, a licensee need not be convicted of any offence for a contravention to be found: Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31 at [62] - [64].
In applying s 24(2)(b)(ii) of the Act, the Tribunal said in Lynch v the Commissioner of Police that: [the fact that an individual] escaped a criminal conviction does not mean that he should therefore automatically escape an administrative sanction against his licence. It is necessary for an administrator to take a stand in dealing with serious contraventions that is seen as credible by the broader community, and sends the appropriate signal to licence-holders as to what is unacceptable.
The Applicant's solicitor referred me to Yaghi v Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 (Yaghi) where there had been breaches of the safe storage requirements, the Tribunal said, at [32] 32. As the Parliament has not chosen to make mandatory the power to revoke the licence in circumstances such as Mr Yaghi's, but rather has provided the Commissioner with a discretionary power, it is reasonable to conclude that not all contraventions or breaches warrant the exercise of the power to revoke. There must be something more to be taken into account. It is suggested in another Tribunal decision concerning the Act that there may be a trivial or excusable contravention or breach which may not warrant the exercise of the discretion against a licensee, whereas a fundamental breach may (see Cusumano v. Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 at para 25).
In my view Yaghi does no more than re-iterate the discretion given to the Respondent, and the Tribunal on review.
In Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226 Hennessey DP said that if the breaches of the Act or Regulation are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety.
In Bevan v Commissioner of Police [2004] NSWADT 1, the Tribunal stated at [26]: ... Parliament has given a clear indication that the Commissioner is to revoke or refuse a licence, unless the Commissioner is satisfied that the contravention was merely a technical breach, the conduct posed no risk to public safety and there was no evidence that the licence holder or applicant for a licence would in future engage in conduct that posed a risk to public safety (see s3(1)(a) of the Act). (Tribunal's emphasis)
The Applicant's contravention in the present matter was not merely a "technical" breach; the Act sets out clear obligations and the Applicant has failed to comply with those obligations over a period of several years. His failure to comply cannot be disregarded as an oversight.
The Tribunal, in determining the review, however, must exercise its discretion in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23]. The underlying principles set out in s 3(1) of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety: Keane v Commissioner of Police, NSW Police [2008] NSWADT 68 at [44].
The Applicant wrote in his statement of his "need" to hold a firearms licence because he said he had recently purchased a rural property which he intended would become his primary source of income. In submissions it was said that the property is about 100 acres south of Oberon in the central west. There was no further information available about whether he would become a primary producer. At no stage has the Applicant attempted to notify the Respondent of any changes to his genuine reasons as required by cl 15 of the Regulation; it was submitted on the Applicant's behalf that if he succeeds in his review application, he would include primary production as a genuine reason and delete sport/target shooting.
In Kingston v Commissioner of Police, NSW Police Force [2018] NSWCATAD 51, Ludlow SM found that the applicant had breached the condition relating to his genuine reason for holding a licence and participation requirements under the Act. In that case, the applicant could have also relied on occupying or owning land to support the genuine reason of recreational hunting/vermin control, so the discretion to revoke the applicant's licence on that basis was not exercised. In this matter though, the evidence was that the Applicant's acquisition of the property is only relatively recent.
The Applicant's solicitor relied on Garder v Commissioner of Police, NSW Police Force [2018] NSWCATAD 199, where, Ludlow SM exercised the Tribunal's discretion in the applicant's favour notwithstanding the applicant had breached participation requirements. In that matter though, the applicant had only held a firearms licence for eight months before it was suspended, did not own a firearm and had failed to comply for a short period. Here, the Applicant who has held a firearms licence since 2013, owned several firearms, and the period of his non-compliance extended over a number of years. As the Applicant had previously complied with the participation requirements in the 2014/2015 and 2015/2016 compliance periods, I consider he was likely to be aware of the responsibilities attached to his licence. In his statement dated 15 October 2020 in support of his internal review application, the Applicant explained that his reason for not complying in 2017/2018 was that he did a lot of international and local travel, his fourth child was born which took a large toll on the whole family, and work was extremely busy not allowing much free time for himself. I accept that the Applicant may have been distracted, but nonetheless a licence attracts responsibilities that are ongoing irrespective of one's personal circumstances.
I observe that the reference provided by Mr Hallak refers to he and the Applicant travelling "a fair bit together throughout 2017/2018, exploring many forests in Victoria using our Victorian Game Licence", which is somewhat inconsistent with the Applicant's contention that he was "busy" or that travelling to comply with requirements was an "impossible ordeal".

Kassem v Commissioner of Police

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