Layland v Commissioner of Police

Tribunal's approach

1. Section 63 of the Administrative Decisions Review Act 1997 (ADR Act) provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28].
2. Pursuant to s 75(4) of the Act, Pt 2 of Ch 3 and s 58 of the ADR Act do not apply to an application to the Tribunal for an administrative review of a revocation decision that was made on the grounds referred to s 11(5A): s 75(1)(c).
3. Pursuant to s 75(5) of the Act, in determining an application for an administrative review of any such decision, the Tribunal is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other information referred to in s 11(5A), and, in order to prevent the disclosure of any such report or other information, is to receive evidence and hear argument in the absence of the public, the applicant for the administrative review and the applicant's representative.

Evidence

1. The Applicant provided a summary in relation to his firearms history and his genuine reason for having a firearms licence and two statements described as a "case statement" and an "impact statement" and information about his club memberships and licences. He also filed a copy of a letter of complaint to the Law Enforcement Conduct Commission alleging serious misconduct by a Police officer, and a statement of claim in relation to that alleged misconduct. He also relied on body worn video (BWV) of 2 police officers, Constable Kaur and Constable Maljevac. I viewed that BWV several times.
2. The Applicant supplied references from: 1. Hon Robert Borsak MLC dated 10 January 2022 2. Douglas Shupe dated 6 January 2022 3. Darren Cowell dated 4 January 2022
3. Notwithstanding s 75(4) of the Act, the Respondent filed and served material under s 58 of the ADR Act.

What precipitated the revocation of the Applicant's licence?

1. From time to time during the COVID-19 pandemic in this State, Public Health Orders were issued in an endeavour to reduce community transmission by placing temporary restrictions and other requirements on movement and gathering. On 24 July 2021, the Applicant was present at a rally known as the "Rally 4 Freedom" (the rally) in Victoria Park on Broadway which protested against COVID-19 lockdown and stay at home orders. Participation in the rally was in contravention of the Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021 (Public Health Order), which at the time, prevented persons living or working in the Greater Sydney area from being away from their place of residence without reasonable excuse, and prevented outdoor public gatherings of more than 2 persons: cl 20 and cl 23 of the Public Health Order.
2. As a result of his attendance at the rally, the Applicant was charged with "resist officer in execution of duty" and "not comply with noticed direction re s. 7/8/9 - COVID 19". The charges were ultimately withdrawn, but he was issued with breach of the Public Health Order notice.

CONSIDERATION

1. Before me the Respondent submitted that the Applicant was not a fit and proper person to hold a firearms licence nor that it is in the public interest that he do so.

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

1. Section 11(3) of the Act requires that the Tribunal be 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.
2. The question whether a person is fit and proper is one of value judgment: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, per Mason CJ. The expression "fit and proper person", on its own, carries no precise meaning and 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: per Toohey and Gaudron JJ at 380. See also Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28 (1955), Re Percival and Australian Securities Commission [1993] AATA 196, Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALP 794 at [41].
3. In Sobey v Commercial Agents Board (1979) 22 SASR 70 at 76, Walters J said in relation to the licensing of commercial and private agents, that the expression means that an applicant must show that he or she "is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails." In the context of firearms licensing, in Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 at [22], JM Higgins stated that in determining the fitness and propriety of an applicant for a firearms licence the decision-maker is to have regard to an applicant's conduct and whether that conduct is such that the decision-maker can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace. The test is directed towards maintaining and encouraging appropriate standards in the use of firearms.
4. The Respondent submitted, that the Applicant is not a fit and proper person to hold a firearms licence, and relied on his attendance at the rally which was held in clear contravention of Public Health Order, thereby displaying a disregard for both the law and public safety.
5. The Applicant claimed in his statement that at no stage when he attended Victoria Park on 24 July 2021 did he believe he was breaching the Public Health Order. He believed the park was within 10 kms of his home so he could be there for outdoor recreation and/or exercise. He now understands the Public Health Order also prohibited gatherings in public places. At the time he also understood there was no Public Health Order to wear a mask in a park although the Health Department recommended wearing a mask in a park if social distancing could not be achieved. He said he had been wearing a mask until it was ripped off by Police. He claimed that, as he was arrested for not wearing a mask, Police also did not have complete understanding of the Public Health Order at the time.
6. Before me the Applicant said that he was "curious" about the rally and had been invited by his neighbours to attend. He thought it was safe for him to go and that he had an entitlement to be there because it was within 10 kms of his home. He also said, somewhat inconsistently, that he did not really know it was a rally until he found they were surrounded by Police and his return exit route was cut off. He said although he found a way to leave, he was approached by Police and he was thrown to the ground and beaten; there were people being assaulted by Police "all over the place". The Applicant said he pleaded guilty to an offence of breaching the Public Health Order by attending the rally, and noted there the other charges were withdrawn.
7. In cross examination he was referred to his statement in which he described going to the park, sitting in the sun and having a coffee and walking around, and then "noticing" a large crowd. He followed the crowd, he said, and met and talked to friends. He conceded that he knew there was a rally, but did not agree with its description as a "protest", which I considered to be an attempt at obfuscation.
8. The Applicant's account of what he was doing at the park was inconsistent - on the one had he claimed to have been there sunning himself, drinking coffee and chatting with friends when he "noticed" a crowd. On the other hand, he said he had been invited to attend the rally by neighbours. His evidence before me sought to shift blame onto Police for what transpired at the rally, not only in relation to himself, but in relation to others present. His evidence focussed on what he perceived as Police misconduct and harassment of those who, in his view, had peacefully and lawfully gathered. It was clear to me that he did not move on when requested by Police, as the rally turned somewhat violent. In the BWV he can be heard to swear at Police and use derogatory comments. At no stage has the Applicant taken responsibility for his participation, although he did plead guilty, somewhat reluctantly it seemed to me, to breaching the Public Health Order. I agree with the Respondent's submission that by his attendance at the rally, in clear contravention of Public Health Order, he demonstrated a disregard for both the law and public safety.
9. The Applicant had previously come to the attention of Police and issued with a move on order by Police for public intoxication: 1. On 25 February 2011, when the Applicant was aged 16 years he was issued with a move on order whilst walking in the middle of the road. Because this is now over 10 years ago when the Applicant was a young person, I have placed little weight on this event. 2. On 14 August 2019, the Applicant and two other males were asked to leave a pizzeria following complaints of the three males approaching women inside the venue and making them feel uncomfortable. When issued a move on direction by police, the three males were reported to have sworn at Police, stared intimidatingly at them and showed Police their tattoos. I attach some weight to this evident anti-social conduct and poor interaction with Police.

Confidential material

1. The Respondent also relied on a confidential affidavit of Senior Sergeant Justin Burrow sworn on 18 February 2022 and evidence given in a confidential hearing. I do not propose to discuss in open Reasons any material that was presented on a confidential basis. Those parts of the Reasons that are not to be disclosed are identified as "[Not for publication]", and Orders are made accordingly: s 64 of CAT Act.
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References

1. Hon Robert Borsak MLC of the Shooters, Fishers and Farmers Party wrote of having known the Applicant since he was 12. The Applicant had volunteered in Party activities and was also a member of the Australian Hunters International (shooting) Club. He found the Applicant helpful, quiet, considerate and thoughtful and that he is conservative in his opinions. He considered him to be a good citizen, trustworthy and very conscious of the responsibility associated with holding a firearms licence. He understood the Applicant to have some involvement with YMCA troubled youth program. He wrote that the Applicant's parents and brother all participate in shooting events.
2. Douglas Shupe wrote that he had known the Applicant for 6 years due to a long association with his father and hunting trips they have taken together. He considered the Applicant had a keen interest in current events and was able to engage in informed and interesting conversation about a variety of subjects. Mr Shupe referred to hunting as a "sacred art". He considered the Applicant to be mature and responsible. He wrote of the Applicant's inability to hunt with his family if he does not have a licence and this loss would be felt for years to come. He said the Applicant told him he regrets the mistake of being near the rally.
3. Darren Cowell wrote that has known the Applicant for 27 years; he is a friend of the Applicant's father. He considers him to be polite and respectful and knows him in volunteering activities through a Lodge. He described the Applicant as "incredibly regretful" of the actions that led to the charge against him. He considered the Applicant to be remorseful of the impact of the event on his ability to hold a firearms licence.
4. It was clear that the referees appeared to have been given a version of what had transpired at the rally by the Applicant. Mr Shupe, for example wrote of the Applicant's regret of being "near" the rally, which does not accord with the likely participation of the Applicant in the rally. Mr Cowell wrote of the Applicant's remorse but, it seemed to me, that this was because of the impact on the Applicant's licence. All believed the Applicant to be of good fame and character. The references, however, must be considered in light of the matters raised in the confidential material. Consequently, I consider little weight can be attached to those references: David v Commissioner of Police, NSW Police Force [2008] NSWADT 223.

Conclusion in relation to "fit and proper person"

1. For these reasons discussed above, in particular, because of the view I formed in relation to the confidential material, I am not satisfied that the Applicant is a fit and proper person who can be trusted to have possession of firearms without danger to public safety or to the peace.

Public interest

1. The Respondent also contended that it is not in "the public interest" for the Applicant to hold a firearms licence: s 24(2)(d) of the Act and Clause 20 of the Regulation.
2. Having found that the Applicant is not a fit and proper person to hold a firearms licence, it is difficult to envisage circumstances when, nonetheless, it can be in the public interest for an applicant to hold such a licence. Nonetheless I turned to consider "the public interest".
3. The term is not expressly defined in the Act or Regulation. It is well-settled though that "the public interest" is to be considered relative to the objects of the Act and the firearms licensing system, with public safety being give paramount consideration: see, for example, Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24]. The Tribunal exercises the discretion in s 24(2) of the Act in accordance with the Act's objects and underlying principles as set out in s 3 of the Act. The Tribunal has repeatedly said that an applicant is not required to discharge an almost impossible burden of proving a near absolute negative, but, rather, the Tribunal must take into account 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]. Further, when assessing the public interest, only real and appreciable risk needs to be taken into account; minimal, fanciful or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32]. The overriding concern of the public interest in this context is the maintenance of public safety and any real and appreciable risk to public safety cannot be outweighed by the Applicant's interest in holding a firearms licence.
4. The Applicant has no criminal convictions, other than the charge arising out of his attendance at the rally. The "public interest" factor, however, allows a consideration of issues going beyond the character of an 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].
5. 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] and AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].
6. The Applicant's interest in holding a firearms licence is for hunting with members of his family and with friends. 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. As I have observed many times, these matters 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].
7. It is well established that the likelihood of public safety risks is to be assessed by reference to an applicant's prior conduct: Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182 at [41]. From the available evidence, especially the confidential material, although the Applicant has not come to adverse attention with respect to his use of firearms, in my view, a real and appreciable risk to public safety has been established.
8. I therefore find that it would be contrary to the public interest for the Applicant to continue to hold a firearms licence.

Conclusion

1. The combined effect of the open and confidential material is to establish that the Applicant is not a fit and proper person to hold a firearms licence, nor is it in the public interest that he holds a firearms licence.

DECISION 1. The decision under review is affirmed.

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: 21 March 2022