Australian Broadcasting Tribunal v Bond [1990] HCA 35, (1990) 170 CLR 321
AVS Group Australia and Sleiman v Commissioner of Police, New South Wales Police Force (Respondent's application) [2012] NSWADTAP 24
Barlow v Commissioner of Police, New South Wales Police Force [2003] NSWADT 254
Briginshaw v Briginshaw (1938) 60 CLR 316
Source
Original judgment source is linked above.
Catchwords
Australian Broadcasting Tribunal v Bond [1990] HCA 35, (1990) 170 CLR 321AVS Group Australia and Sleiman v Commissioner of Police, New South Wales Police Force (Respondent's application) [2012] NSWADTAP 24Barlow v Commissioner of Police, New South Wales Police Force [2003] NSWADT 254Briginshaw v Briginshaw (1938) 60 CLR 316Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60Easey v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 319Hamshere v Commissioner of Police, New South Wales Police Force [2012] NSWADT 244EMB v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 255Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127Kalinic v Commissioner of Police, New South Wales Police [2006] NSWADT 227Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117
Keegan Jacques v Commissioner of Police, New South Wales Police Force [2017] 145
Lee v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 254
McDonald v Director-General, Social Services (1984) FCA 57, (1984) 1 FCR 354
Manning v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 111
Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97
Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206
Mills v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 38
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 547, (1982) 42 ALR 209
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 1
Re Du Pont (1983) 5 ALN 205
Saffron v FCT (No. 2) (1991) 102 ALR 19
Smith v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 184
Sterjovski v Director-General, Department of Transport [2002] NSWADT 10
Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
Judgment (16 paragraphs)
[1]
ales Police Force [2014] NSWCATAD 184;
Sterjovski v Director-General, Department of Transport [2002] NSWADT 10;
Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28;
Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110.
Texts Cited: None cited
Category: Principal judgment
Parties: Anthony Lahood (Applicant)
Commissioner of Police (Respondent)
Representation: Counsel:
S Stanton (Applicant)
The applicant Mr Anthony Lahood applied to this tribunal on 25 June 2024 for review of a decision by the respondent Commissioner on 17 July 2019, affirmed by an internal review on 5 June 2020, to revoke his category ABC firearms licence with effect from 17 July 2019.
The applicant had been authorized for firearms in New South Wales as an adult for 21 years in total, without coming to any adverse notice in relation to firearms. His firearms licence was first issued on 4 September 1999 for the reason of recreational hunting/vermin control (RHVC) and had subsequently been reissued several times for the same reason. After the latest reissue on 4 November 2014, it was to expire on 4 November 2019.
On 1 March 2018 the applicant was charged with cattle stealing under s 126 of the Crimes Act 1900 and with 14 counts of failure to comply with mandatory measures under the Biosecurity Act 2015 relating to the identification tagging of livestock. His category ABC firearms licence was consequently suspended with effect from 8 March 2018.
He pleaded guilty to those charges at Lithgow Local Court on 21 December 2018 and on conviction was made subject to a conditional release order (CRO) for a period of 2 years. As a result his licence was revoked on 17 July 2019, the internal review affirming the decision on the basis of ss 24(2)(a) and 11(5)(b) of the Firearms Act 1996 and cl 5(1)(f) of the Firearms Regulation 2017. The factual basis for revocation was thus his conviction on the cattle stealing and tagging charges.
[4]
Applicable legislation
Section 24(2)(a) of the Firearms Act provides that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. Section 11(5)(b) provides that a licence must not be issued to a person who:
(b) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law.
Clause 5(1) prescribes a number of offences for the purposes of those provisions, including:
(f) an offence under the law of any Australian or overseas jurisdiction involving fraud, dishonesty or stealing, being an offence in respect of which the penalty imposed included any term of imprisonment (whether or not suspended) for 3 months or more, a community service order for 100 hours or more of community service work, or a good behaviour bond.
Pursuant to cl 5(1A)(a), a "good behaviour bond" includes a CRO imposed in New South Wales.
Clause 20 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".
Further, s 24(2)(c) provides that a licence may be revoked "if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence".
It is not disputed between the parties that a decision by this tribunal to set aside the reviewable decision would not entitle the applicant to have his licence restored, as the licence has expired in any event, nor would the tribunal have the power to determine any application for a licence in the event that the applicant were to reapply in the future. The applicant wished to proceed with the review, however, on the basis that a favourable decision would be in the nature of a declaration that could assist the applicant in seeking the exercise of a discretion in his favour. The respondent did not oppose that proposition.
The issue in the present application is thus therefore whether or not the correct and preferable decision is to affirm the decision on the ground that:
1. the applicant within the previous 10 years has been convicted of a prescribed offence;
2. the applicant is no longer a fit and proper person to hold a licence, or
3. it is not in the public interest for the applicant to continue to hold a licence.
[5]
The evidence
The respondent called no oral evidence but relied on documentary material, including the s 58 documents (exhibits R1 and R2).
The applicant tendered his affidavit dated 21 October 2020 (exhibit A1) in which he said that he lives at Merrylands, where he conducts his business as a fruit and vegetable providore as well as a meat wholesaler and retailer. He acknowledged that he had pleaded guilty to the matters that came before the Local Court, but had done so reluctantly and in circumstances where he had maintained a claim of right, but decided on legal advice to relinquish it.
He pointed out that when he was in court on 20 December 2018, Deputy Chief Magistrate Miller LCM, pursuant to a submission by the applicant's counsel, had lifted the suspension of his firearms licence dated 8 March 2018.
He acknowledged that the s 58 documents contained reference to a matter that occurred in a domestic situation within his home, but stated that he had defended those matters and was acquitted, his firearms licence being restored to him at that time. Apart from that matter, of which he was acquitted, he had no other offences on his record other than those to which he had pleaded guilty.
His community corrections order would expire on 19 December 2020 and he had done nothing to bring any attention to his behaviour during the course of that order resulting in any cause for concern about failure to abide by the terms of the CRO. He had sought to maintain what he considered at the time was a reasonable belief that he had a claim of right to the cattle in question. He had intended to plead not guilty, but by reason of advice given in circumstances that occurred on the day of hearing, as a result of an assessment made by his legal adviser, which he reluctantly but nevertheless accepted, he pleaded guilty in the belief and knowledge that it was in his interests to do so.
He was not seeking to traverse his conviction, but rather to explain to the tribunal how it was that, as a person who had attained the age of 55 years, would be before the court for matters of such a nature when he had never had any allegation or offence of dishonesty levelled against him at any time in his personal or professional life.
He had never had any bad relations with any of his neighbours, nor had he had any further dealings, let alone contact, with the owner of the cattle, Mr Morris Brady.
[6]
Applicant's submissions
The applicant filed written submissions on 22 October 2020 (part exhibit A2) in which he noted that the principal reason for revocation was his conviction on 21 December 2018 at Lithgow Local Court on a charge of stealing cattle. Nothing else on his record was such as to warrant revocation. He maintained that there were exceptional circumstances warranting the exercise of the tribunal's statutory discretion under s 24(2)(a) in his favour as he is a primary producer and has a need for a firearms licence.
He disputed the respondent's contention that his "licence was not issued in connexion with the genuine reason of 'primary production'" as he had been conducting rural enterprises as a primary producer in the Oberon area for many years, running sheep and cattle, and such a finding was therefore without a basis in fact or law and as it was never put to him, and constituted a denial of procedural fairness.
The conviction for cattle stealing resulting in a CRO for two years, expiring on 20 December 2020, was the central issue and involved the "discretion invested in this Tribunal to ultimately deny the Applicant the right to bear arms, as he has undertaken and done without incident since 1999". The reasoning of the internal review adopted the mandatory interpretation of s 11(5)(b) applied in the dictum in Burrell v Commissioner of Police, New South Wales Police Force [2010] NSWADT 210, [51] that it would be anomalous if a conviction after a licence had been granted were treated totally differently to a conviction before a licence application, and that in the absence of special or exceptional circumstances, where the discretion may be exercised in such a way as not to revoke the licence, revocation is inevitable.
The police record of interview [ERISP] contained a detailed account of matters concerning how the cattle came to be on the road and on his property, and how he took steps that he thought were justified in securing those beasts, which involved removing tags. The exercise of the tribunal's discretion depends on the conduct in question, and not the conviction. That discretion had to be exercised having regard to the licensed activities.
The conviction for cattle stealing did not in itself determine that the applicant is not a fit and proper person, or that it cannot be determined that he presents no realistic risk to the public should he be allowed to possess and use firearms. But up to the time of his licence's revocation on 17 July 2019, he had not committed any offences, or for that matter endangered anyone, with respect to the use of firearms. It must be highlighted that in the course of the offence and its commission, no firearms were used. In that regard he remained a person who has been a model licence holder and observant of the law. As a primary producer, he has a genuine practical need for firearms for vermin control.
[7]
Consideration
Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner's revocation of a licence or permit: s 75(1)(c). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
Clear guidance as to how the act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. Section 11(4)(c) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's intemperate habits or being of unsound mind.
The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12]. They do, however, provide guidance for the tribunal's exercise of jurisdiction.
[8]
Conviction of prescribed offence
The first ground on which the respondent argues in support of licence revocation in this case arises from the applicant's conviction in Lithgow Local Court on 21 December 2018 of the offence of stealing cattle. A conviction was recorded and the applicant was placed on a two-year CRO. The offence which the court found proved is prescribed by cl 5(1)(f) of the Firearms Regulation for the purposes of s 11(5)(b).
[9]
Legal framework
Section 24(2)(a) of the Firearms Act provides that a licence may be revoked for any reason for which a licence would be required to be refused. Section 11(5)(b) stipulates that a licence must not be issued to a person who has, within the 10 years preceding the application, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations. Clause 5(1)(f) prescribes an offence involving fraud, dishonesty or stealing, being an offence in respect of which the penalty imposed included, inter alia, a good behaviour bond, which is defined by cl 5(1A) to include a CRO. Further, s 11(5)(d)(iii) states that a licence must not be issued to a person who is subject to a conditional release order imposed in New South Wales in relation to a prescribed offence. Consequently, for both those reasons, a licence application lodged before the expiration of the CRO on 20 December 2020 or before the expiration of the disqualification period on 20 December 2028 would be required to be refused.
As s 24(2) states that a licence "may" be revoked for those reasons, revocation on those grounds is not mandatory and the respondent (and by derivation this tribunal) has a discretion in the matter. It is sometimes said to be "anomalous" that a person who is convicted of a prescribed offence or made subject to a CRO is disqualified from applying for a licence, but if the same person is convicted of a prescribed offence or made subject to a CRO while holding a licence, the tribunal has a discretion with respect to whether the licence should be revoked: Kalinic v Commissioner of Police, New South Wales Police Service [2006] NSWADT 227, [23].
The situation is not necessarily anomalous, however. In the case of a person who already holds a licence, the Commissioner can consider the person's licensing history. If it shows a long record of conscientious compliance, it may be seen as appropriate to waive an isolated breach of the regulatory scheme. But where a person is applying for a licence for the first time, there is no prior record to consider and consequently no basis for exercising a discretion in the applicant's favour.
As was noted above, the applicant's firearms licence had expired before this matter came on for hearing. The principles to be applied in such circumstances were outlined by O'Connor J in AVS Group Australia Pty Ltd and Tony Sleiman v Commissioner of Police, New South Wales Police Force (Respondent's Application) [2012] NSWADTAP 24, [22]:
(i) The mere fact that the entitlement, licence or authority that was the subject of the reviewable decision has ceased to be operative by effluxion of time does not, of itself, mean that a review tribunal is no longer competent to deal with the review application.
(ii) The reviewable decision may still be reviewed with a view to deciding whether it was the correct and preferable decision in the circumstances….
(iii) The question of what order may be appropriate to give effect to the Tribunal's decision in the circumstances where the underlying entitlement has ceased to be operative is a separate matter. If the Tribunal is of the view that the administrator did not make the correct and preferable decision in the circumstances, it could, for example, make an order setting aside the decision….
(iv) A proceeding may lose the character of a live dispute as it progresses through the tiers of the dispute resolution system. There may be no utility in the system continuing to deal with the dispute, for example because any order would have no practical effect or the review applicant no longer has a legitimate interest in the outcome of the application….
[10]
The facts of the s 126 offence
According to the police fact sheet, the victim in that case, Mr Morris Brady, 71, owns a large property in the Edith area consisting of three separate holdings, the largest being called Shepherd Hills. Mr Brady runs mainly black Angus breeding cows. All his cattle are marked with an earmark which is readily identifiable, consisting of a cutout at the tip of one ear and a V-shaped cutout at the back of the other ear. It is uniform across all his cattle and is widely recognized in the surrounding area. Mr Brady took over the earmark from his father, and the family has been using it for over 50 years in the Edith area. The applicant owns a small property on Duckmaloi Road, on the opposite side of the Duckmaloi River from Mr Brady's property and about 4 km distant from it.
Because of drought conditions, the water level in the river dropped to very low levels, exposing holes in some of the fences on the banks. That allowed cattle to cross to the other side of the river onto a neighbour's property and from there to Ferndale Road in order to find feed. They have been seen then to return to Shepherd Hills, where they were regularly fed by Mr Brady.
On 7 February 2018 Mr Brady, on checking his stock in his bottom paddock, found that he was missing eight cows and their calves from the herd of 28 in the paddock. He then began to search the area for his cattle, and on 8 February, while searching Ferndale Road, which is on the other side of the Duckmaloi River from his property, he located his eight cows and eight calves in a paddock whose owner he did not know. He observed his cattle bearing his readily identifiable earmarks, but all the stock had brand-new ear tags in their ears as well as a new NLIS device.
The expert certificate of Mr Brett Littler dated 5 November 2018 (part exhibit R2) explains that there are three common forms of identifiers for cattle:
1. Earmarks that are applied using either special pliers or a knife and involve cutting a shape or symbol from either one or both ears. Most earmarks are not registered and are used by producers as a quick way to identify ownership when stock stray.
2. Ear tags (management tags) are physical identifiers, usually carrying an animal identification number (AIN) or letter for the year of birth or code for the animal or the herd. They are non-electronic and may be simply hand written.
3. National Livestock Identification System (NLIS) ear tags for the identification and tracing of livestock. This scheme involves electronic identification of cattle and centralized recording of movements on a national database. Cattle that move from their property of residence are required to be fitted with an NLIS identifier before leaving any property in New South Wales.
[11]
Fit and proper person
The second ground on which the respondent contends that the revocation should be affirmed is that the applicant is not a fit and proper person to hold a firearms licence. Section 24(2)(c) creates a discretionary power to revoke a firearms licence "if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence".
The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 - 157, the High Court gave a general overview of the concept and the discretion that it embodies:
The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their purpose is to give the widest scope for judgment and indeed for rejection. "Fit" or "idoneus" with respect to an office is said to involve three things, honesty, knowledge and ability…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that:
The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, or whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
[12]
The respondent's submissions on fitness and propriety
The respondent submits that the applicant is no longer a fit and proper because, first, he pleaded guilty on counsel's advice to, and was convicted, of cattle stealing and of biosecurity offences yet still maintains that he was reluctant to relinquish what he believed to be his defence based on a claim of right and still argues that he could have made out such a defence. He has thus not accepted responsibility for his offences and has paid only lip service to the need to express contrition. For the reasons set out above concerning the earmarks on Mr Brady's cattle, it seems unlikely that such a defence would have succeeded. He also appears to have been under a misapprehension, at least, in relation to the requirements of biosecurity legislation. I agree that this counts against his case on this point.
Next, the respondent submitted that the applicant's evidence was generally unsatisfactory in that he gave answers that were inconsistent, for example in relation to whether he had found the cattle on the road or on his property, or made statements that were incorrect. For instance, he had said he had been married for 30 years, but admitted in cross-examination that he and his wife had been separated for 11 of those years, although they had stayed married for the sake of the children. He had also claimed that he was not known to the police, when he had been the subject of an AVO on 24 February 2016 following a domestic dispute (causing his firearms licence to be suspended) and on 3 July 2017 when he was charged on three counts of common assault (DV), though he was acquitted after hearing. He explained that conflict by saying that he was not known to police as a criminal or a danger to the public. Those prevarications also tend to count against him.
As against that, he is a man aged 55 with no other convictions. As the internal review points out, he has been licensed for firearms as an adult for over 21 years without coming under adverse notice. None of the offences of which he was convicted involved the use or misuse of firearms. He holds responsible positions in the food industry as a supplier and corporate officer.
[13]
References
He also relies on certain references bearing dates in November and December 2018. Ms Kimberley Talbot JP, CEO of the Richmond Club Group, has known the applicant in a professional context for 19 years. He is a key supplier to the Richmond Club Group and Hawkesbury Living, its subsidiary company, which is a charity in the aged care industry. She was aware of the severity of the charges he was then facing and was very experienced at what could go wrong when stock wander on to another property, and the difficulty that is incurred by that happening. The facts presented were extremely difficult to comprehend, knowing the applicant for so many years.
In her view, however, the applicant is a person of the best character that she knows, a man of integrity and extremely respected by her and by her board of directors. She has only ever known him to be honest and extremely generous to many people of all social standings. He treats people equally and with the utmost respect. He is a religious man and has been part of a number of charities for as long as she has known him. She knows that he has taken food into the city to feed people on the streets. She was aware that at the time of the offence the applicant was working his property through severe drought when farmers were unable to feed their stock and he was topping up the feeding of his stock with waste food from his business. They were times of desperation and definitely not times of wanting additional stock, and that was why she found the case so concerning.
Mr Trevor B Oldfield AM, executive director of Kidswest Children's Charity had known the applicant and his family for over 30 years and in that time had found him to be a hard-working and passionate person who has worked tirelessly for the community at all levels. He is a devoted husband and father who has led by example and bringing up his children to be fine upstanding and good-hearted Christians.
In particular, Mr Oldfield's dealings with him through Wentworthville Club where he held a board position for 10 years and the presidency for a further 10 years, the applicant had been a supplier to the club industry for fresh meat and vegetables and had become one of the most trusted suppliers the industry has seen. He had also given devoted support to a variety of community groups, charitable organizations and church groups where his generosity had been well known and appreciated. He is a true community leader.
[14]
Public interest
The third ground on which the respondent argues for licence revocation is that it is not in the public interest for the applicant to continue to hold a licence, within the meaning of s 24(2)(d) and cl 20.
The "public interest" factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16.
The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.
In a familiar passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the tribunal could never be totally satisfied that a person would never pose any risk to public safety. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test under s 11(7) as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206, [130].
Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML in 2013 that that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. "The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests" (at [7]).
[15]
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
[16]
Amendments
23 February 2021 - Citation corrected paragraph 50, 52 and coversheet.
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: 23 February 2021
As a primary producer, he genuinely required firearms and disputed as incorrect the internal review's statement that his license was not issued in connexion with the reason of primary production. He had been a primary producer for many years, operating and maintaining his primary producer lifestyle from his property at Oberon and in the Oberon region. Apart from his needs as a primary producer, he sought the exercise of the tribunal's discretion in his favour by reason of his position as a person who, but for those matters, had not contravened any law of New South Wales, and while he had traffic infringements, they had come in a driving career spanning many years and in respect of which he had crossed many thousands of kilometres in the course of his working and personal life, both within the Sydney metropolitan area and regional New South Wales.
He is the father of 8 children and has been married to his wife for over 30 years. He is also a grandfather. Those are matters of personal significance to him and, more importantly, pride in terms of his familial achievement in life and which he sought to rely on in terms of his assessment of not only his position in society, but in terms of its perception.
As he had indicated in his police interview, the cattle were on his property. He did not take them from elsewhere, nor for that matter did he seek to possess them if located on a property that was not his. It was, as he had been led to believe, a larceny by finding and was so regarded in terms of the sentencing proceedings. He readily acknowledged and accepted that a licence is a privilege, not a right, and had always maintained and observed the licensing laws within the state with respect to firearms with the utmost respect and performance.
In the circumstances there was a degree of exceptional circumstances available to him and he wished to take the opportunity to both demonstrate and be given, on the basis of his accepted performance, that he is worth the placing of confidence in him such that he might obtain and preserve his firearms licence.
The applicant also relied on a further affidavit (exhibit A2), sworn on 20 December 2018, in which he expressed his contrition for the matters before the tribunal and noted that Mr Brady, the victim, had not sought compensation from him and had been very gracious in his reaction to the matter. Equally, he had asked Mr Brady to understand that at the time he had a claim of right, as he believed, to the cattle, which he abandoned when he pleaded guilty in all the circumstances.
In the course of his interview, he had informed the police that his neighbour, Darren McFawn, had telephoned and said that his cattle were on the road and that he should have someone take them off. He was informed of his cattle being on the road by two different people within half an hour on that day and arranged for the cattle to be brought back, as he was 60 km away at Mount David, where he had been contracted to work on a property.
He had been active in the Oberon area for over 19 years, owning properties since 1999, as well as in Taralga and Tuena. He had never had any problems with his neighbours, nor had he ever had any problems concerning stock in all the years he had been active on the land. He is a director of three companies, Lahood & Sons Pty Ltd, the Billabong Station Meat Company Pty Ltd trust , and Lahood Investment Trusts Pty Ltd trust.
He is effectively an absent farmer, as he lives in Sydney and conducts his business from Sydney, but he frequents his farm at Oberon invariably on most weekends. He has maintained what he believes are good relations with his neighbours and the people in the township of Oberon. His business supplies fruit, vegetables and meat to the hospitality industry and, within the Oberon district, to the Royal Hotel as well as the Hampton Hotel, the Cave Pizzeria and Peter's Café, as well as smaller outlets.
He has never been convicted of any criminal offence: nor has he ever been charged with any matter of a regulatory nature, such as a breach of income tax or other matters under the Corporations Act in his capacity as a company director. He holds licences for the maintenance of quality in terms of meat products and, as such, is responsible for compliance with regulatory requirements concerning its suitability for provision to the hospitality industry and catering outlets. His company also conducts a HAACP program for both the fruit and vegetables operations, which effectively ensures quality assurance programs are in place. In the past his company has exported meat, fruit and vegetables to Nauru without incident, observing all quarantine and export regulations.
He maintained a claim of right until he was advised by his counsel that it would be wiser to acknowledge what were, on the police brief, circumstances that required a reconsideration of his defence, although he had maintained his defence based on that claim of right as outlined and articulated in the submissions on sentence that he had read.
When Dylan Boyd, who he regularly employs as a farmhand and general labourer in company with his father mustered what he believed were his missing cattle, he had also asked him to repair the fence. Before that he had asked him to cut the tree that had caused the fence to come down. This was undertaken by the applicant to secure the borders of his property and to prevent any further escape of cattle because of fencing problems. He had not sought to participate in, or pursue, matters that he thought were frivolous and abandoned them when his counsel gave him what he considered to be proper advice.
He had never had any problems with biosecurity legislation, and in conducting a business where he wholesales fruit, vegetables and meat, he had maintained and observed biosecurity measures for many years without any infringement whatsoever. He undertakes operations for the preparation of food and must ensure that all matters referable to the particular legislation and its regulation are complied with, and had done so without any infringement whatsoever, either to his companies or himself as a director of those companies.
He pointed out that he had voluntarily attended [at Oberon police station] when requested and participated without legal counsel in a lengthy ERISP interview that extended over two hours and 70 pages, and after being charged, a condition of his bail was that he had an AVO imposed on him, which resulted in the loss of his firearms. He had never given any cause for apprehension of violence, nor had there been referred to in the brief or the agreed facts any incident that would warrant an AVO being made.
In cross-examination by audiovisual link at the hearing, the applicant was asked to comment on a number of photographs of cattle with identification tags, which also had incisions on their ears or had the tip of their ears missing (exhibit R2, pp 114 ff). He said the cuts were noticeable in the photographs only because the person in the picture was opening up the incision with both hands. They did not look like earmarks, which were usually made with pliers. He did not know why some of the pictures showed the tops of ears missing, but flies could sometimes eat the tips of ears. Also, in dry summer weather cattle would sometimes try to eat feed that was underneath fences, and could cut their ears in the process.
The Local Court had given orders that his firearms license should be returned to him, and the records showed it. He had contacted the firearms registry about the order, and was referred to Merrylands police, who told him that they did not have to return his firearms or licence. He had later been told that he could appeal to this tribunal, and that was the reason he was here. After the expiration of his licence suspension in May 2018, he had not received any written communication from the registry about his suspension, only oral communications. He had not been aware at the sentencing hearing that he would be subject to a mandatory 10-year prohibition on holding a licence, especially as the magistrate had ordered the return of his firearms licence. He knew nothing about prescribed offences.
He agreed that he had been living separately from his wife for 11 years, but they had stayed married for the sake of their children.
At the time of the offences, he had received a text message saying that a falling tree had broken his fence and his cattle had strayed into the neighbour's property. But the new owner of the property had released them onto the public road because she did not want them on her property and in particular did not want his bull in proximity of her cows.
He still operates his business from Sydney, but spends approximately three days a week at the property. He employs workers sometimes, but does not arrange for them to do any shooting for him. On the property he keeps the same type of firearms safe as he uses at his home at Merrylands. Although he only uses firearms on his own property, he does not leave them at the house because it is tenanted.
He conceded that he had been charged on one occasion with common assault (exhibit R1, p 18), but the charges had been dismissed. When it was pointed out to him that he had said that he was not known to police, he replied that he was not known as a criminal or a danger to the public. Asked about the reference in his written submissions (exhibit A3, para 12) to the "discretion invested in this Tribunal to ultimately deny the Applicant the right to bear arms, as he has undertaken and done without incident since 1999", he replied that he was arguing that he should be allowed to hold a licence and possess firearms.
He generally works on the property on Mondays, Thursdays, Sundays and half of Saturday. At some times of year, when the crops go in or there is spraying, fencing or stock work to do, he employs workers to assist him. The property is low maintenance, however, and he does not maintain full-time workers.
Later in the hearing the applicant was recalled to give a more detailed account of the events relating to the straying, finding and tagging of the cattle. He recalled that on Thursday 18 January, his neighbour Mr McFawn had called and told him that a tree had fallen on the fence and the cattle had strayed. He said the applicant needed to get them off the neighbouring property by Sunday, as he had sold it to Mrs Thompson. Subsequently Darren Boyd had called and said that Mrs Thompson had let the cattle out, and the applicant's tenant Christina Warrall had phoned and said the cattle were out on Ferndale Road.
He had tried to call Dylan Boyd to ask him to move the cattle, but could not reach him. Eventually the applicant had himself found half the cattle on the road and half on the driveway leading to Mrs Thompson's. On bringing them back he found that there were 16 cows, but five or six cows were missing as well as calves. That night, Dylan had telephoned and said he had searched for the cows but there were still 6 missing and he would look for the others. Three days later Dylan had found the cattle. At that time the calves had not been tagged. As Mrs Thompson also had Angus cattle of the same type as his, and they shared a boundary, he thought it was a prudent step to take. He removed the buttons from the cows that had been bred elsewhere and used all yellow tags.
He had taken responsible measures to identify his cattle. Later on, however, some of his stock were missing, and he reported that fact to the police. He had attended at Oberon police station in that connexion as requested, and had then been told he was under arrest. He had explained that he had received a call about the cattle, but they had thought he was referring to Mrs Thompson, not to Christine, his tenant.
In further cross-examination he said it was not an offence to substitute new tags because he had two properties running cattle and it was permissible to merge the numbers. The system identifies the owner of the stock and not the property. The tags enable animals to be traced back to the property manager. He had pleaded guilty because before the hearing he had been told the case would take five or six days, and would have to be postponed, but the police offered to reduce the charge to finding, not stealing. His counsel had advised him to accept the police offer, or find another lawyer. He had accepted the advice reluctantly.
The applicant also relied on a summary of a statement of agreed facts prepared for the purposes of the criminal prosecution in the Local Court (part exhibit A2).
His traffic record "is not the worst record and certainly not the best" but with seven offences in almost 40 years of driving, involving no conviction for drink-driving or other serious matter and, as in Keegan Jacques v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 145, [81], his record "does not represent a gross departure from observance of that scheme in all the circumstances".
The cattle stealing charge of itself was not axiomatic in terms of the tribunal declining to exercise its discretion in the applicant's favour by analogy with EMB v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 255, in which Isenberg SM, referring to allegations of sexual assault that had been withdrawn on the eve of trial, though they had been established to the tribunal's satisfaction, did not involve firearms, nor had there been any incidents in the applicant's capacity as a gun owner or in relation to firearms at all. The conduct did not lead the tribunal to the view that the applicant was not a fit and proper person to hold a licence (at [51]).
The submissions then considered the issue of public interest and the appropriate legal standard and contended that a discretion to revoke a licence was to be exercised having regard to the licensed activities.
On the question whether the applicant could meet the standard for a "fit and proper person" to hold a licence, there was no doubt that the conviction must weigh heavily against him, but that was not the end of the matter. In the context of firearms licensing, fitness and propriety "must be considered in the context at all times of ensuring public safety": Barlow v Commissioner of Police, New South Wales Police Force [2003] NSWADT 254, [22]. In that regard the submissions referred also to EMB [40] - [42], [58] and Manning v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 111, [33].
At the hearing the applicant's counsel adopted those submissions and added that the applicant's evidence had been frank and forthright, and had not been shaken. He had never said that he had obtained a licence as a primary producer, although he did say that he needed firearms for vermin control. A captive bolt gun such as used in abattoirs was not a practical answer to his needs, as it needed compressed air or electricity to operate.
This application involved the exercise of a discretion. It was not concerned with the crime, but with the conduct, which was larceny by finding, also involving a claim of right. There was no menacing matrix of intention involved. He had been told by his neighbour Mr McFawn that his cattle had strayed onto his neighbour's property, which he had just sold to Mrs Penelope Thompson. Three days later he was told that the stock were no longer on the property because she had allowed them to escape onto the road so that they would not mix with her cows. His tenant Christine Warrall had telephoned him and told him the cattle were on the road. Mr McFawn had also telephoned and told him the same thing. The applicant, together with Ms Warrall and her son and daughter-in-law then went to search for the stock. Dylan Boyd later joined in the search at the applicant's request and found the cattle. The earmarks would not be noticeable except for the fact that in the photograph they had been stretched.
He had sent some text messages to Mrs Thompson on 15 February 2018 saying that he had 9 cows and calves missing and that they could only be on her property. Having checked, Mrs Thompson informed him that there were no cattle on her place other than her own. He then said he was going to report his missing cattle to the police (exhibit R2, p 123).
His course of conduct showed that he had a claim of right. It was not disputed that he had asked Dylan Boyd to go and look for the cattle. He had seen no earmarks on them, and that, the applicant said, was because they were not visible unless the ear were intentionally stretched. Nor is it disputed (and Mrs Thompson had confirmed in her statement in exhibit R2) that the applicant had informed the police about his missing cattle. There was no use of a firearm in connexion with the cattle incident.
Allegations that he had been involved in an adulterous relationship were not relevant to fitness and propriety. He had been acquitted of the domestic violence assault charges and was still living with his wife, though they lead separate lives. He testimonials found in the Lithgow Local Court bore out his integrity of character. The CRO to which he had been subject was for two years, which was towards the lower end for that kind of order and augmented his position in relation to his conduct.
He might have been wrong in law as regards the substitution of the tags, but the case remained an exceptional one and at the age of 55 he has shown that he can be taken to be a serious citizen.
In Easey v Commissioner of Police [2020] NSWCATAD 319, [51], Isenberg SM pointed out that when a licence expires, the applicant in that case would have to be refused a licence renewal. In this instance the licence had not yet expired, but the exercise of discretion in the applicant's favour would give him time to make other arrangements for such matters as vermin control on his property.
Montgomery SM when affirming licence revocation in Mills v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 38, [43] stated that "as the Applicant's license has expired, there is no utility in reinstating the licence".
In this case the respondent accepts that the tribunal may still determine whether the Commissioner's decision to revoke the applicant's licence was the correct and preferable decision, but it does not have the power to order that the applicant's licence be reinstated or determine any application for a firearms licence should the applicant reapply (exhibit R3, para 30). At the hearing it was submitted on behalf of the applicant that such a decision would nevertheless have utility, in that it would be in the nature of a declaration that the discretion (or a discretion) should be, or should have been, exercised in the applicant's favour. That submission was not developed further, but the respondent did not submit that the expiration of the licence deprived the tribunal of jurisdiction.
It was thus common ground that notwithstanding the conviction on the s 126 prescribed offence, the tribunal has a discretion whether to affirm the revocation or not. The respondent submitted, however, that for the purposes of s 24(2)(a), it would only be in special or exceptional circumstances that the discretion could be exercised in such a way as not to revoke the licence. He referred to Hamshere v Commissioner of Police, New South Wales Police Force [2012] NSWADT 244, [14], in which the tribunal said, "Although the Commissioner has a discretion in this regard where a conviction occurred after the licence has been issued, in my opinion it will only be in special or exceptional circumstances where the discretion is exercised in a way not to revoke the licence".
On the other hand, it should be noted that Hennessy A/DCJ has criticized the practice of placing a "judicial gloss" on the plain meaning of the statutory tests in the Firearms Act: "The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests", her Honour has said: (AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5, [7]). While the statutory discretion thus appears to be unfettered, there should nevertheless be some proportionality between the gravity of the offence and the readiness to exercise the discretion in favour of an applicant, subject also to the Act's overriding objective of protecting public safety.
In this case, while asserting that he does not seek to challenge the correctness of the conviction, the applicant maintains his position that he might have been acquitted of the s 126 offence if he had not waived his defence of claim of right by reluctantly pleading guilty on the day of the hearing.
The general rule in such cases is that where the exercise of jurisdiction by a tribunal depends on conviction of, or finding of guilt of, an offence (as under ss 24(2) and 11(5)(b)), the finding cannot be challenged before the tribunal, other than in exceptional circumstances: Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313, [42]; Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575; (1982) 42 ALR 209. On the other hand, "where the exercise of power is not founded on a criminal conviction, then even if the conviction be relevant, a challenge may be made to the essential facts on which it was based": Saffron v FCT (No.2) (1991) 102 ALR 19, 22.
In this case the tribunal's jurisdiction does depend on a finding of guilt, Nevertheless, an applicant may present to the tribunal matters pertaining to a conviction or finding of guilt, provided that they do not contradict the facts that had to be found in arriving at such a finding: Re Du Pont and Minister for Immigration and Ethnic Affairs (1983) 5 ALN N205. Such matters may be relevant to the exercise of the statutory discretion in s 24(2).
Police found that all the recovered cows and calves had Mr Brady's unique earmarks. Witnesses indicated that the applicant had taken the cattle from Ferndale Road and onto his property on Duckmaloi Road. Enquiries also revealed that he had yarded the cattle, along with stock belonging to him, into yards on that property on 4 February 2018. There he had placed his management tags as mentioned above and had also placed the NLIS devices into their ears, removing some of the NLIS buttons from cattle in the yards in the process.
On 15 February 2018, he contacted Oberon police to report nine of his cows and their nine calves missing from his property. On 1 March 2018, he attended at Oberon police station in that connexion, where he was arrested and cautioned. In his ERISP interview he stated that he was telephoned by neighbours and told that his cattle were escaping onto Ferndale Road after a tree fell over a boundary fence between his and the neighbouring property. He stated that the new neighbour had opened the gate to put them out onto the roadway. He had subsequently caused the cattle to be mustered by Dylan Boyd, who in the company of his father mustered the cattle on to the applicant's property.
He admitted removing the old NLIS buttons from cattle that he said belonged to him from a different PIC number and that he had removed white, red and blue management tags to place the more identifiable yellow tags into the ears. He then placed new NLIS devices into the ears of all the cattle.
When provided with the evidence of Mr Brady's earmarks, he stated that there were absolutely no earmarks in the ears of any of the cattle that he marked and asserted that he may have been set up. He stated he was still missing nine cows and calves and was adamant that he had not taken possession of the cattle belonging to Mr Brady.
His changing of the identification tags on the relevant cattle constituted the multiple offences under the Biosecurity Act of which he was convicted, but they were not in themselves prescribed offences. The facts of those matters were, however, relevant to the cattle stealing charge, as they could point to the existence of guilty knowledge. The applicant's explanation for changing the tags was lengthy and complex, and counsel acknowledged that he may have been proceeding under an erroneous view of the biosecurity law.
There was one particular piece of evidence against the applicant in relation to his appropriation of Mr Brady's cattle, however, which was highly probative. It concerns the earmarks on Mr Brady's cattle and is clear, unambiguous and crucial. Indeed, in his written submissions on sentence, the applicant declared that "The issue in the case was the presence of the earmark…." (part exhibit A2, para 9).
The fact sheet noted that all cattle on Mr Brady's property were marked with an earmark that was readily identifiable. It consisted of a cutout of the tip of one ear and a V cut out of the back of the other ear. It was standard across all Mr Brady's cows, calves and bulls and was widely recognized in the surrounding local area. When Mr Brady was searching for his missing stock on Ferndale Road on 8 February 2018 and located 8 cows and eight calves in a paddock whose owner he did not know, he was able to identify his cattle, even though their tags had been changed, because he observed that they bore his readily identifiable earmark.
At one point in his ERISP interview the applicant appeared to be affecting not to know what an earmark was: "But, um, that on it's [sic] own's not right the fact that they were ear, what do you call them, earmarks?" (exhibit R2, p 34, q. 90). Then he said he understood what an earmark was: "I know what they are they're, you like a, a steel cutout with shape it could be V or it could be a whatever…. It's like a brand, everyone has their own. And I've seen them, I have seen tons of cattle with earmarks. These cattle didn't have earmarks" (id. p 34 - 35), q. 92 - 94).
The applicant has categorically maintained at all times that the cattle did not have earmarks (e.g. id. q. 88). When shown photographs of the earmarks attached to Det./SC Newman's statement at the hearing, the applicant said they were not earmarks. He said the V-shaped cuts in the ears could have been caused by cattle trying to graze feed under a fence and cutting themselves on the wire. The missing tips on the ears could have been caused by flies eating away at the ear.
But the photographs show close-ups of three cattle, bearing NLIS numbers ending in 034, 529 and 035 respectively. No. 034 has a V-shaped cut on the left ear and the top of the right ear clipped. No.529 shows the same markings, as does No.035. The applicant's hypothesis that those clear, sharp identical markings on the same ears in each case could have been produced by grazing under fences or being attacked by flies strains credulity beyond breaking-point.
In addition, the expert certificate of Mr Brett Littler notes that comparison of the cattle on Mr Brady's property and the subject cattle showed that they both had the same consistent earmark. "This was an earmark that was done manually with a knife or other sharp object and had not been done with earmarking pliers" (at para 31).
In cross-examination the applicant countered that the V-shaped cuts were visible in the photographs only because they were being pulled open. The missing tips of the ears were noticeable without any manual intervention, however. Further, it was not disputed that Mr Brady was able to identify the cattle instantly from their earmarks while searching along Ferndale Road for his missing stock. For all the above reasons the applicant's evidence on this crucial point cannot be accepted. I find that at the time of taking possession of the cattle, or at the very latest when he affixed the new tags, he was aware, or should have been aware, that they were earmarked, and as he did not use earmarks himself, the cattle could not have been his.
I take into account all the matters advanced in the applicant's favour and referred to below, such as his unblemished firearms record, the fact that no firearms were used in the commission of the offences, his expression of contrition, the character references he tendered at the sentencing hearing and other considerations. I accept Mr Stanton's observation that there is no evidence of any premeditation or planning and that the applicant sought the assistance of other parties to help him to find his own missing cattle. Nevertheless, given the gravity of the offence and the unsatisfactory nature of the applicant's evidence attempting to mitigate its seriousness, I find insufficient grounds for exercising in his favour the discretion concerning licence revocation on the ground of conviction for a prescribed offence. The revocation on that ground must therefore be affirmed.
That conclusion suffices to dispose of the present application. Nevertheless, as the issues of fitness and propriety and public interest have been canvassed at some length, it is appropriate to make findings about them.
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].
Mr Oldfield was aware of the charges against the applicant and categorically said that he believed with all his heart that the applicant feels devastated regarding the charges made against him and that they are completely out of character, such that Mr Lahood feels embarrassed and has a high level of remorse over having found himself in such circumstances. In summary, he is a kind, considerate and giving person of the highest integrity who has rightfully earned the respect and admiration of his peers.
Mr Peter P McIlvenny wrote that he had gone to work for the applicant's company after he had sold his own business. He found him to be "a dead-set honest businessman" who scrupulously met his financial obligations. He had never known anyone in his life to be so honest in remuneration. He came to know Anthony on a personal basis through their shared faith, which they both sincerely practise. He had gone to the applicant's house on many occasions and had come to know his wonderful family and parents. It would be hard to find a better loving family anywhere.
He had found the applicant to be a most honest person in his dealings with the many people he had dealings with and could not recall anyone ever accusing him of unfair dealing. He is by nature a most humble, placid person and rarely gets upset with other people. He notes the applicant's charity to the Catholic Church Giving Trust and supplying vegetables for many years unstintingly. He could not count the times Mr Lahood has made charitable donations to the church and the priests. The charges against him were based on the hearsay of one person, which he found totally unacceptable. The applicant would never steal from anybody, he is far too honest a gentleman.
The respondent submitted that as those references were prepared for the purposes of the criminal prosecutions and not for Firearms Act proceedings, they should be given no weight. It is true that none of the references mentions firearms or licensing in any way, but subject to that, I think they can be taken into account. While the evidence in this case suggests that the applicant may not be quite the paragon that his referees portray, he seems generally a stable and responsible citizen whose long record of firearms ownership shows that he would not endanger public safety if he were in due course to recover a licence. I therefore find that the applicant is a fit and proper person to be issued with a firearms licence.
Other cases have pointed out that the question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] - [66] 66].
Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].
The respondent contended that it would not be in the public interest for the applicant to hold a firearms licence for several reasons. First, the fact that the applicant was convicted of an offence under s 126 of the Crimes Act which is prescribed as giving rise to the period of disqualification showed that the Legislature considered that persons who commit such offences are not suitable to hold firearms licences. That offence, I have already held, suffices to justify licence revocation, which carries with it the 10-year disqualification period. At the same time, however, given the applicant's unblemished firearms history, his mature age and generally good repute and character, it does not appear that he would present any significant risk to public safety, as understood in cases such as Webb.
Next, the respondent correctly points out that the applicant appeared to be under the misapprehension that he held a licence as a primary producer, rather than an RHVC licence. As a part-time farmer or grazier, he used his firearms for vermin control and there may have been little practical difference from a public safety point of view if he had instead sought to have his licence altered to that for a primary producer. Nevertheless, he should have been aware of the regulatory difference and of the effect of s 7A(2)(a) but has no doubt been appropriately disabused of that misconception as a result of these proceedings.
The respondent also contended that the applicant's submission that he had been deprived of his "right to bear arms" was most concerning, as it indicated a failure to understand the principles underlying the legislation. In cross-examination the applicant said he had meant that in his own case he was no longer entitled to possess firearms. He was plainly not advocating or excusing any breach of the law and his assertion seems to have been more in the nature of a rhetorical flourish. It seems unlikely that he was seeking to paraphrase article 7 of the Bill of Rights 1689 and in any event such expressions of opinion may be protected by the constitutional immunity for political communications: cf. Lee v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 254, [160] - [161].
On balance, I do not think the evidence warrants a finding that it would be contrary to the public interest for the applicant to hold a firearms licence, and I so find. Nevertheless, as I have already found that there is insufficient evidence to permit exercising the discretion in favour of non-revocation because of the applicant's conviction for the s 126 offence, the decision under review must therefore be affirmed.