Lee v Commissioner of Police

NCAT Administrative and Equal Opportunity|2022-07-26

The Applicant's Submissions on Fit and Proper Person

The Applicant maintains that he is a fit and proper person to hold a gun licence. His submissions in this respect related to (1) the positive findings on his fitness and propriety in Lee 2020 and further efforts to improve since Lee 2020; (2) the characterisation and context of his conduct during the 9 October 2021 Incident; (3) evidence of his good character; (4) evidence of his understanding of the responsibilities of holding a firearm licence.
First, he recalls that SM Montgomery actually made positive findings with respect to him being a fit and proper person to hold a firearms licence (Lee 2020 at [81] to [88]). He fully understands why, on the public interest element in Section 11(7) of the Act (discussed below), the SM Montgomery nevertheless found he had not exhibited appropriate respect for the importance of road safety regulations (the Tribunal deals with this element further below). He notes his "appalling past driving record" and states that he is now "a different driver and person" than he was some years ago. Some of this, he says, has to do with maturity and responsibility as a father, husband and grandfather of nearly 12 grandchildren. He points to his recent improvement as a driver and that he had managed to go three years since the last NCAT application without losing any demerit points. He says, with respect to SM Montgomery's comments in Lee 2020 that he has taken these "on board and I have changed many of my habits as to not break the law again". He points to using Bluetooth in all his vehicles, using cruise control where possible, checking his seatbelt even on the farm, leaving more time to drive so as to no get impatient and accidently speed, and take regular stops. He checks trailers more regularly and inspects all his vehicles on a regular basis and fixes faults at the earliest possible time. He waited until he received all the points back on his driver's licence before he reapplied for a firearms licence.
Second, with respect to the 9 October 2021 Incident, Mr Lee comments that the offence itself (having a trailer plug connection partially interrupt the view of the number plate) was "unintentional and did not pose a risk to public safety". He said it is not an example of intentional or malicious disregard of the law and that he has since had the plug adjusted by an auto electrician so the issue is resolved and will never happen again. He does acknowledge that he was the operator of the vehicle and ultimately responsible and should have noticed it himself and dealt with it sooner. He expresses hope that his "recent perfect driving record carries some weight as I hope the same reflects positively … as it relates to my respect and willingness to abide by regulatory provisions". He also points out that none of his offences have been at the "high end" of public safety issues like driving under the influence of alcohol.

The Tribunal's Consideration on Fit and Proper Person

The Tribunal finds that Mr Lee is a fit and proper person within the meaning of section 3(a) of the Firearms Act.
The Respondent has noted that this Tribunal previously found Mr Lee to be a fit and proper person (in Lee 2020). The Respondent accepts that, "a later Tribunal should exercise caution in reopening prior, considered rulings of an earlier Tribunal" and that "[o]rdinarily a later Tribunal should adopt the ruling of the earlier Tribunal." (BY at [22]). The Respondent has thus focused on the 9 October 2021 Incident as evidence that Mr Lee is not a fit and proper person.
Before making findings on the 9 October 2021 Incident, the Tribunal notes that Mr Lee's good character is not in question. The Respondent accepts that there are over a dozen references from members of the community, including community leaders, former police officers, and religious leaders, who attest to Mr Lee being an honest, well-regarded and upstanding citizen who has contributed to the Parkes community as a businessman, family man and active member of the Baptist Church community. Most referees were aware of his prior infringements. The Tribunal also notes that the District Court took account of Mr Lee's good character in 2015 and the magistrate in Forbes similarly accepted his good character in 2014.
The Tribunal also accepts that despite his prior driving history and firearms offences dating to the 1980s, Mr Lee has demonstrated a commitment to improving his compliance with both firearms regulations and the traffic safety regime. The Tribunal accepts that in the period since his firearms were cancelled almost a decade ago, he has made efforts to familiarise himself with the legislation and regulations and takes compliance very seriously, a point accepted also by the Tribunal in previous decisions.
As for respect of road safety laws, the Tribunal accepts that Mr Lee has also, even since Lee 2020, made a substantial improvement. He has described the steps he actively takes to comply with vehicle safety (see paragraph 66 above). These efforts paid off. Up until the 9 October 2021 Incident, had successfully managed to avoid incurring further demerit points. His previously "lax attitude" has also improved. He has taken on board the remarks in Lee 2020 about respecting traffic regulations and acknowledging the link between showing respect for one public safety regime (driving) with respect for other public safety regimes (firearms). He has not only expressed that shift in attitude through his words in his written submissions to the Tribunal and answers to questions during the hearing, but has also demonstrated it in his actions, as described above and as evident in his three years without clear of demerit points.
The primary point of contention for the fit and proper person test remains the 9 October 2021 Incident. That has two aspects - the nature of the infringement itself, and the insinuations about Mr Lee's comments to the police officer.
With respect to the infringement itself, the Tribunal does not find the trailer plug placement to be of such a serious concern as to justify a finding that he is not a fit and proper person to hold a firearms licence. The Tribunal has seen the photographs and watched the video of Mr Lee immediately removing the trailer plug. Mr Lee also states that he subsequently had it checked and adjusted by a mechanic. Likewise, the evidence showed that the trailer load was immediately covered, no fine was issued for the trailer load, and Mr Lee has provided the load restraint guide from the transport commission. The Tribunal accepts that the trailer plug and load issues on 9 October 2021 were unintentional, caused no harm to others, and were addressed immediately by the Applicant. Furthermore, the Applicant takes responsibility for his action and appreciates that both could potentially have impact public safety or cause harm, and assures that he carefully checks his vehicles now for compliance.
As for the suggestion that Mr Lee improperly tried to influence the police officer, the Tribunal rejects the Respondent's characterisation of the 9 October 2021 Incident as fanciful. The Tribunal has read the Tolley Statement and the transcript from the encounter, and has watched the body worn video, and considered Mr Lee's explanations in response to questioning from the Tribunal. The Tribunal accepts that Mr Lee was anxious and nervous during the encounter. This was because he had recently filed his reapplication for a firearms licence after a 9 year wait and after finally reaching no demerit points on his driver's licence. He was worried that those efforts could be jeopardised by any possible new infringement recorded. He expressed that anxiety to the police officer who dismissed his concerns. The reason he asked if he knew who he was or if he was friends with others who might know him was to provide context for that anxiety. It was known to some in the community that Mr Lee had been trying to get his firearms licence back, and the Tribunal finds that Mr Lee was simply trying to ascertain if the police officer was already aware of that background so that he could understand why he was so anxious about losing any points. When Mr Lee asked if there was anything else that could be done, the Tribunal finds he did not mean to offer a bribe, but rather to see if other action, such as a caution or going straight to the mechanic, could be done instead of incurring demerit points. Mr Lee denied straight away to the officer that he was trying to do anything inappropriate, when he said "no, no, no …I'm not even remotely suggesting that". In the Tribunal's view, a finding that Mr Lee was seeking to influence the officer improperly would be inconsistent with the evidence, including as to Mr Lee's character and the video of the encounter itself. The video actually shows that despite his anxiety, Mr Lee was reasonable, polite, followed instructions and immediately took steps to rectify the issues.
The Tribunal accordingly does not consider the 9 October 2021 Incident to impact negatively on its assessment of Mr Lee's fitness and propriety under section 11(3)(a) of the Firearms Act.
The Tribunal further notes that the Applicant has no history of violence, drug or alcohol abuse or mental health issues. He has expressed contrition for his past behaviour and a genuine commitment to improve his habits and comply with regulatory regimes aimed at public safety.
Accordingly, the Tribunal confirms that it is satisfied under Section 11(3)(a) of the Firearms Act that Mr Lee is a fit and proper person.

Second Issue to be Determined: Would Issuing a Licence to Mr Lee be contrary to the public interest under Section 11(7) of the Firearms Act?

The Test for Public Interest

Having established that Mr Lee is a fit and proper person, this case now turns on the "public interest" test in Section 11(7) of the Firearms Act. Section 11(7) of the Firearms Act provides that, despite any other provision of the Act, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of a licence would be contrary to the public interest.
The expression "public interest" is not defined in the Firearms Act. The Tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act (Lee 2020 at [13]). The underlying principles of the Act as stated in section 3(1) stress the overriding need to ensure public safety.
The "public interest" factor allows a consideration of issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety, and public confidence in the administration of the licensing system (Constantin v Commissioner of Police [2013] NSWADTAP 16, Lee 2020 at [23]).
Public safety is to be given paramount consideration, and the public needs to be confident that those who are afforded the privilege of a firearms licence will comply with the legislative requirements. Where there is the possibility of a threat to public safety, the public's right to safety must outweigh an individual's personal interest and privilege to possess and use a firearm (Hill v Commissioner of Police, NSW Police Service [2002] NSWADT 218 at [24]).
In an oft-cited passage referenced by the Respondent, Hennessy DP in Ward v Commissioner of Police [2000] NSWADT 28 ("Ward") at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test under section 11(7) as well (Masterson v Commissioner of Police [2017] NSWCATAP 206 at [130]). Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police [2013] NSWADT 5 at [7], that Ward itself had set aside a decision to revoke a firearms licence, because the Tribunal was satisfied that despite the fact that the applicant had assaulted his partner, he was a fit and proper person to have a firearms licence. Hennessy DP recalled that "[t]he 'virtually no risk' comment was made in the context of the 'fit and proper person' test" and was not a substitute for the relevant tests set out in the Firearms Act.
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 [2017] NSWCATAD 97 at [64]-[66]).
In determining whether the issue of a licence is contrary to the public interest, the Tribunal is entitled to take into account criminal conduct, whether or not that conduct has resulted in an individual being charged or convicted of criminal offences, or whether the particular offences charged have not been proven or have been dismissed (Joseph v Commissioner of Police [2017] NSWCA 31 at [62]-[64] ("Joseph")). It is the conduct, rather than the conviction, that is of concern to the Tribunal (Esterman v Commissioner of Police [2014] NSWCATOD 70 at [30] ("Esterman").
In relation to prior violations of the Firearms Act, the Appeal Panel in Lee AP stressed at [70] that the Tribunal should take into account "all the established infringements and come to a view on the totality of the evidence." That is so even if prior contraventions relate to one type of licence when considering whether another type of licence should be revoked (Lee AP at [25], citing Hijazi v Commissioner of Police, NSW Police Force [2015] NSCATAP 82 ("Hijazi")). The Appeal Panel in Lee AP noted with respect to Mr Lee, that: 115. Even if most of the breaches relate to the dealer and theatrical licenses and permits, and those relating to the personal licence and permit are less serious, Mr Lee has demonstrated by his conduct since at least 2000, that he is unable or unwilling to comply with the 'strict controls on the possession and use of firearms.' [as required by section 3(1)(b) of the Act].
The Tribunal has recognised that there is a community expectation that those who are afforded the privilege of a firearms licence have maintained a lawful lifestyle and can demonstrate that they will be able to comply with the legislative requirements. (Madziala v Commissioner of Police, NSW Police Force [2021] NSWCATAD 269 at [36]).
This expectation extends to other areas of public safety regulation, including traffic violations. It is well established that an applicant's history of repeated breaches of traffic laws and regulations is a relevant consideration in regard to firearms licensing issues. For example, in Tannous at [37], Huntsman JM was satisfied that, when he viewed the Applicant's conduct as a whole, it was not in the public interest for him to hold a firearms licence. He stated: I considered that the Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety (in particular, the breaches of the requirement that drivers of motor vehicles be licensed…) indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety and I consider it relevant that the Applicant has failed to comply with requirements of the firearms licensing scheme in relation to firearms storage, and that this follows on his conduct of repeatedly breaching traffic laws and regulations aimed at public safety. In recent years the Applicant has been before the courts for the breaches of regulations and laws aimed at public safety in relation to his driver's license, and has also been before the court for possessing prohibited drugs. I am satisfied that the evidence in this matter indicates a course of recent conduct by the Applicant which has shown disregard for laws which protect public safety and a lack of compliance with the law generally.
In Keegan-Jaques v Commissioner of Police [2017] NSWCATAD 145 ("Keegan-Jaques"), Scahill SM stated: 57. The Applicant was unable to recall the traffic offences. Some of the offences are repeated, e.g. speeding, PCA and not wearing a seatbelt - the last, on three occasions. On one view this demonstrates that the receipt of infringements had made little impact on the Applicant. They did not cause him to change his behaviour. The repeated infringements also suggest a lack of concern for either the public's or his own safety. … 81. The Tribunal is satisfied, viewing the Applicant's conduct as a whole, that it is not in the public interest for the Applicant to hold a firearms licence. The Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety. The Tribunal considers it is relevant that the Applicant was in possession of what on balance appears to be a prohibited weapon. The Applicant professed ignorance of this and said he was not an expert on firearms.
In Lee 2020, Montgomery SM emphasised: 97. The traffic laws and the firearms regulatory scheme are both aimed at ensuring public safety. A disregard for a regulatory scheme aimed at ensuring public safety is a relevant consideration in regard to a determination of whether or not it is contrary to the public interest for the Applicant to hold a firearms licence. Given the extensive history of traffic infringements, I cannot be satisfied that similar conduct will not be repeated or that he may similarly disregard aspects of the firearms regulatory scheme.
In light of these understandings of the "public interest" test and the relevant legislation, the Tribunal now sets out the Parties' position on the application of the public interest test to this case. It will then consider, on the totality of the evidence before it, whether it would be contrary to the public interest for Mr Lee now to be issued with a firearms licence.

The Respondent's Submissions on Public Interest

Applying the above-cited legal authorities to the facts of the present case, the Respondent submits that it would be contrary to the public interest for Mr Lee to be granted a firearms licence.
The Respondent maintains that it is necessary to consider all conduct, viewed individually or collectively, to assess whether it is not in the public interest for the Applicant to have a personal firearms licence. In this connection, the Respondent refers to all of the Applicant's prior contraventions of the Firearms Act (including for categories other than a personal firearms licence) as well as his traffic history.
The Respondent points out that the Applicant's infringements relate to "the full array of firearms licences" he has held and that his misconduct with respect to firearms and explosives stretches close to two decades, and should therefore be a significant factor in the Tribunal determining whether it is in the public interest for the Applicant to be issued with a firearms licence. The Respondent referred to the following remarks of SM Montgomery in Lee 2020 at [95]-[96]: Prior conduct can provide some guidance but it is impossible to say with certainty how any individual will behave in the future. The Commissioner is properly concerned that the Applicant's serious failures in regard to his use of firearms may be repeated…. I share that concern but my concern is based on the Applicant's traffic record.
Although SM Montgomery focused on the traffic record, the Respondent maintains that the Applicant's numerous contraventions of firearms regulations also remain relevant to whether it is contrary to the public interest for the Applicant to be granted a firearms licence. At the hearing, the Respondent stated that its focus was on the more recent traffic infringements and the 9 October 2021 Incident, but that the prior conduct of an applicant remains relevant always to decisions on firearms licences.
The Respondent submits that the offences for which the Applicant was issued with an infringement notice and warning at the 9 October 2021 Incident were serious and risky. The Respondent recalled that SM Montgomery had said in Lee 2020 at [100] that "The Applicant can apply for a new licence at any time and it may well be that with the passage of more time, absent any further incidents, the Applicant will be able to demonstrate that the licence should be granted." The Respondent pointed out that the Applicant has failed to prove an absence of further incidents. Indeed, in addition to the 9 October 2021 incident, in February 2022 he received a vehicle defect notice in relation to a lift exceeding 50mm, non-compliant bull bar and muffler.
The Respondent concludes that looking at the Applicant's conduct as a whole, including the firearms offences and his "extensive history of traffic infringements", Mr Lee has demonstrated a disregard for public safety and his own safety. The Respondent argues that the Tribunal could not conclude that there is virtually no risk in granting him a licence.

The Applicant's Submissions on Public Interest

The Applicant disagrees that it would be contrary to the public interest to issue him with a licence.
With respect to firearms, he points out that the last contravention took place over nine years ago in 2013 and the earliest contravention was 18 years ago in 2004. While the chronology of prior contraventions was undisputed, he provided a detailed commentary and explanations of the context for each. For example, he described the house move that he was undergoing when the paintball licence expired in 2008; and his reasons for believing that his son held a licence to have a high calibre pistol back in April 2012.
In the nine years since his firearms licences were revoked, he states that he has learned a great deal to understand the legislation better. He appreciates that those trusted with the authority of a firearms licence must understand the legislation and he makes efforts to keep up with ongoing changes. He further notes that he still has safe storage facilities. He also is well aware of the importance of absolute compliance with the explosives licences used for his fireworks business, and provided evidence of his recent licences. He noted that like the firearm licensing system, the licensing system for the fireworks business is regulated with the objective of ensuring public safety.
On traffic violations, as stated above with respect to the fit and proper person test, Mr Lee recognises his poor driving record stretching back to when he was a young driver. Some of the offences happened in the 1980s when he was a provisional driver. He says "there is no question that my position on compliance with the law and public safety has significantly altered from when I was a provisional driver and before me becoming a father and grandfather."
He says that some time ago he made a "conscious decision to be a better driver" and that this is "reflected in the fact that I did achieve the reinstatement of all of my demerit points as a result of the commitment to this decision." He also pointed out that this requires a continual commitment due to the extraordinary number of kilometres he travels annually as part of his business.
With respect to the defect notice in February 2022, Mr Lee explained that he has owned the vehicle in question for over 3 years and had it registered and checked 3 times. Each time the vehicle passed the test, and he was unaware of anything wrong with it. The muffler had become loose the night before, so he fixed it the best he could, with a tie down, as they were on the road 600 km from home, as an interim solution until he could get back and have it repaired. He has taken steps to rectify the issue with the bull bar.
At the hearing, Mr Lee acknowledged expressly to the Tribunal that driving regulations are aimed at public safety and he appreciates how showing respect for that regulatory regime is relevant to the firearms licensing regime which is also based on public safety concerns. This connection was less clear to him at the time of his administrative review application before SM Montgomery.

The Tribunal's Consideration of Public Interest

The Tribunal now considers whether on the totality of the material, it would be contrary to the public interest to issue Mr Lee as a rural property owner with a category A, B, and C licence for hunting, vermin control and primary production.
Both Parties have referred the Tribunal to earlier decisions in which findings have been made about Mr Lee, and both have indicated that this Tribunal should ordinarily adopt the ruling of an earlier Tribunal (citing BY at [22]).
On the one hand, the Respondent urges the Tribunal to adopt the same ruling as the Appeal Panel in Lee AP, which found: 114. The Tribunal concluded … that Mr Lee's "record of repeated failures to renew licences and permits, the clear and substantial contravention involved in the operation of an unapproved firing range and his other varied infringements lead to the conclusion that general deterrence requires the application of a sanction in this case". The Tribunal reasoned that public confidence in the licencing scheme will be maintained if "those whose conduct does not meet the required standards" are not permitted to hold a firearms licence or permit. 115. Even if most of the breaches relate to the dealer and theatrical licences and permits, and those relating to the personal licence and permit are less serious, Mr Lee has demonstrated by his conduct since at least 2000, that he is unable or unwilling to comply with the "strict controls on the possession and use of firearms": Firearms Act, s 3(1)(b). 116. Mr Lee operated an unapproved shooting range between April 2012 and July 2013. The Tribunal described that item as a "clear and substantial contravention". In April 2012… he used a .45 rifle and a number of .45 hand guns to fire at targets and a birthday cake containing explosives. He then handed a revolver to his son Jarod who fired five rounds at targets. The Tribunal did not accept Mr Lee's explanation that he thought he was lawfully able to test firearms on his testing facility under his dealer's licence. The Tribunal did accept Mr Lee's evidence that he believed at the time that his son's pistol permit was current. Ultimately, Mr Lee admitted the contraventions. 117. Another incident which the Tribunal found counted against Mr Lee was the sale as a firearms dealer of a prohibited firearm to himself when he had no permit or licence for it. The Tribunal found that Mr Lee completed that transfer after being told that it was impermissible and then posted a YouTube video of himself firing it, under the title, "M14 - Now a Prohibited Weapon". Despite submitting to the Tribunal that he was purporting to conduct "testing" for the purposes of selling M14, he described his actions in the video as a "review"... 118. Mr Lee was in possession of firearms for paintball without a paintball games permit on two occasions - from March to June 2008 and again from March to April 2013. The Tribunal held that these incidents demonstrated a "casualness of attitude towards compliance with obligations as a permit holder" … and a "cavalier attitude to the regulatory scheme"…. 119. … His infringements relate to every licence and permit he has held. They have taken place over a period of at least 13 years, despite at least one warning. They were not isolated or insignificant events. Even if there were no actual instances of dangerous conduct, Mr Lee has breached the legislation and exhibited a lax attitude over many years. In order for public confidence in the regulatory scheme to be maintained, the Commissioner's decisions should be affirmed.
On the other hand, the Applicant refers to the more recent findings of SM Montgomery who was convinced that Mr Lee is a fit and proper person to hold a firearms licence, and whose concerns as to the public interest were less focused on historic failures in regard to his use of firearms, but rather centred on recent traffic violations and Mr Lee's apparent disregard for a regulatory scheme aimed at ensuring public safety on the roads (Lee 2020 at [96]-[97]). SM Montgomery expressed the view that: 98. More time would need to pass before I could be confident that the Applicant has demonstrated sufficient regard for public safety and his own safety, as well as sufficient regard for regulatory schemes aimed at ensuring public safety. Notwithstanding the Applicant's good character, given the seriousness of the Applicant's record and taking into account all relevant considerations, in my view it is not in the public interest for him to hold a firearms licence at this time… 100. The Applicant can apply for a new licence at any time and it may well be that with the passage of more time, absent any further incidents, the Applicant will be able to demonstrate that the licence should be granted.
The two decisions (Lee AP) and (Lee 2020) are not inconsistent. Indeed, SM Montgomery acknowledged the seriousness of Mr Lee's prior convictions. He also noted that it was relevant the Applicant "has not been charged with any recent firearms offences" (at [86]). SM Montgomery recognised in 2020 that with "the passage of time", the absence of incidents, and a showing by the Applicant of an increased regard for public safety and for his own safety, that a new licence might be granted.
It falls on the Tribunal now to consider whether in consideration of all the Applicant's prior conduct, including the most recent, whether sufficient time has passed, whether his attitude has improved, and whether concerns about the public safety and public confidence in the administration of the licensing system have been sufficiently addressed.
First, the Tribunal considers the Applicant's previous undisputed conduct in relation to firearms. While some of these infringements occurred up to 18 years ago and some related to activities which are not subject of the present application (such as paintball games, operating a shooting range, dealing in firearms) and for some of the offences, no convictions were recorded, the Tribunal nevertheless takes them seriously. All prior offences relating to the Firearms Act are relevant to the assessment of whether refusal of a licence is contrary to the public interest (Hijazi, Lee AP). Conduct that did not result in conviction of criminal offences can still be taken into account in assessing public interest (Joseph at [62]-[64]; Esterman at [30]).
The Tribunal considers that the prior conduct is relevant insofar as it may indicate the risk of future disregard for the regime, and also insofar as it may dilute public confidence in the strict licensing system if applicants with a record of infringements are allowed to be licensed.
The seriousness and extent of the prior firearms infringements have been acknowledged by Mr Lee. He has not only expressed but demonstrated a commitment to familiarising himself with the firearms legislation and taking steps to ensure he is not in breach of it again. This included declining to participate in shooting activities on Commonwealth-operated ranges, traveling overseas to use firearms where it would be legal, and refusing even to touch firearms since his licences were revoked (see Lee 2020 at [87], and letters from Borsak, Bowler, Fredericks, Lee (the son.) The Tribunal finds his contrition and commitment to be genuine. The Tribunal is satisfied that with the passage of the last 9 years, the absence of any firearms offences in that period, and Mr Lee's commitment to familiarising himself and complying with the statutory regime weigh against the concerns stemming from the earlier infringements and serve to diminish the possibility of a threat to the public's safety.
Second, in parallel with the Applicant's firearms-related development, he has made realisations and improvements in respect of traffic safety. Traffic laws and regulations and the firearms regulatory scheme are both aimed at ensuring public safety and disregard for one scheme is a relevant consideration in regard to determination of whether or not it is contrary to the public interest or the Applicant to hold a firearms licence (Lee 2020, Keegan Jaques, Tannous).
The last time Mr Lee was before the Tribunal he did not seem to understand how respect for traffic rules had any relevance to the firearms regime (see Lee 2020 [65]). By contrast, Mr Lee now does appreciate the relevance of respect for traffic safety. He expressed as much to the Tribunal at the hearing and the Tribunal found his statements to be sincere. The Tribunal also accepts Mr Lee's written submission that he has made a "conscious decision to be a better driver" and that this is "reflected in the fact that I did achieve the reinstatement of all of my demerit points as a result of the commitment to this decision."
In paragraph 75 above, the Tribunal noted steps Mr Lee has been taking to comply with road safety and the fruits of those efforts. Until the 9 October 2021 Incident, he had successfully managed to avoid incurring further demerit points.
For the reasons already set out above with respect to the fit and proper person test, the Tribunal does not accept that the 9 October 2021 Incident demonstrates that Mr Lee disregards public safety. He immediately addressed the trailer plug and load issues and has had other defects fixed. He has never been found to have driven while affected by drugs or alcohol or caused any harm to others or to property while driving. (cf. the repeat drink driving offences and failure to change behaviour in Keegan-Jaques at [57]). The Tribunal does not place weight on the minor defect notice issued to Mr Lee for one of his vehicles in February 2022. The vehicle had passed registration tests three times, and Mr Lee immediately and responsibly had a mechanic address the concerns that were subject of the notice.
The Tribunal does consider the prior offences of driving while suspended to be concerning, especially as they tended to show a disregard for a licensing scheme, however the Tribunal also takes into account that over a decade has passed since those incidents and the improvements demonstrated by Mr Lee in the past three years with respect to driving.
The Firearms Act does not set a timeline for how long an applicant must wait to reapply for a licence after having a licence revoked or refused. In order for the public to have confidence in the administration of the licensing system, the period must not be too brief, yet it need not endure indefinitely. Having weighed the totality of the evidence in the present case, and in particular considering the serious efforts the Applicant has demonstrated in complying with regulations aimed at public safety, as well as the passage of time since his last firearms offences and the evidence as to his good character, the Tribunal decides that it would not be contrary to the public interest to grant Mr Lee the licence for which he has applied.
For all the reasons set out above, either on their own, or in cumulation, the Tribunal does not consider the 9 October 2021 Incident, or Mr Lee's prior history of other traffic offences or firearms infringements establish a likelihood of risk to public safety that would justify a refusal pursuant to Section 11(7) of the Firearms Act. I find that the correct and preferable decision is that it is not contrary to the public interest to grant him a firearms licence now. The Decision below should be set aside.

Remaining Issues to be Determined under Firearms Act

The Tribunal is satisfied that other elements set out in the Firearms Act are met.
As required by Section 11(3), Mr Lee is a resident of New South Wales who has held a firearms licence before. He has stated that he has the facilities for safe storage and the Respondent has not questioned this.
As noted above, Section 3(2)(c) of the Firearms Act requires "each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm". The Tribunal is further satisfied that Mr Lee has genuine reasons for the licence that he seeks, as set out in Section 12.
He is the owner of rural land near Parkes and has provided rates notices and other documents concerning his properties. The Respondent has not questioned that he is the owner of rural land nor that he is engaged in primary production. At the hearing, Mr Lee described the land that he owns. After initially buying 300 acres for paintball (which land also has animals, and borders on national park land) he bought another property next door approximately 600 acres in size for primary production and applied for a C class licence. The family has since added another larger parcel of land where his son lives and they have a total of 2200 acres of farmland. His farm animals include around 800 head of Australian white sheep, 100 head of cattle, and some merino sheep. There has been a problem with foxes and the sheep. Especially after the heavy rains, the grass has grown and the fox problem has increased. It is easier to shoot foxes with a Category C firearm than with a pump or lever action firearm. Mr Lee also provided an explanation in response to concerns (now not pressed by the Respondent) that had been expressed in the internal review decision about his wife's shooting needs (in addition to her other duties).
The Applicant explained the difficulties faced after his licences were revoked in terms of maintaining the farm with pest eradication and putting down stock. He explained that the C class licence is needed for effective control of pigs, foxes, ducks and galahs which cannot be achieved with a category AB licence. The pests are eating seed crops or hay crops and stopping them from growing. The numbers of pests are large due to the wet conditions and the Category C firearms are most effective at controlling them. Mr Lee has tried other methods to deal with the pests, including fencing, trapping and bow and arrow but they are inadequate. He has tried other methods for putting down stock (such as a hammer to the head) but this is unpleasant and less humane than a shot.
The Respondent stated at the hearing that it no longer presses its points in opposition to Mr Lee having genuine reasons for a Category C licence.
Based on the above considerations, the documents filed (including the original application, council rates notices, certified primary producer declarations, and valuations), Mr Lee's own evidence at the hearing and the Respondent's decision not to oppose the genuine reasons, the Tribunal is satisfied that Mr Lee has genuine reasons for the licence for which he has applied.

Conclusion

Based on all the considerations set out above, and having regard to the material before me, I am satisfied that the correct and preferable decision is to grant the licence that Mr Lee has sought. Accordingly, the Respondent's decision should be set aside.

Orders

The Tribunal makes the following orders: 1. The Decision under review is set aside. 2. A Category A, B, and C firearms licence is to be issued to the Applicant as an owner of rural land, for recreational hunting/vermin control and primary production.

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 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: 14 September 2022

Introduction

This case concerns review of a decision to refuse a firearms licence application.
On 21 August 2021, Mr Stephen Gary Lee (the "Applicant") applied for a Category A, B, and C Firearms Licence from the Commissioner of Police ("Commissioner" or "Respondent"). In his application he noted that he is the owner of rural land and employed in the business of primary production, farming, and grazing. His additional reasons for the Category B licence included "humane destruction of larger vermin/appropriate actuation, calibre and for target animal (vermin)", as well as the humane destruction of "animals and/or stock". For the Category C licence, he specified the additional reasons of "quantity of vermin and/or animals to be humanely destroyed and controlled" and the "large numbers of terrestrial pest … and avian pest… for protection of crops and domestic stock in the activity of primary production".
On 10 October 2021, the Applicant was notified that his licence application had been refused under section 11 of the Firearms Act 1996 (NSW) ("Firearms Act") by a Senior Adjudicator at the NSW Firearms Registry acting as a delegate of the Respondent ("Decision"). The Decision referred to the refusal, in 2013, of all the Applicant's firearms and permit applications on account of contraventions of the Firearms Act. The Decision placed significant weight on comments made in 2016 by the Appeal Panel of the NSW Civil and Administrative Tribunal ("Tribunal") about Mr Lee's breaches of firearms legislation over a 13-year period and his "lax attitude". (Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 ("Lee AP")). It also pointed to this Tribunal's in June 2020 by SM Montgomery, who considered that, despite Mr Lee's good character, "more time would need to pass" before he "could be confident that the Applicant has demonstrated sufficient regard for public safety and his own safety [and] for regulatory schemes aimed at ensuring public safety." (Lee v Commissioner of Police [2020] NSWCATAD 144 ("Lee 2020")). The Decision concluded that issuing the licence would be contrary to the public interest within the meaning of section 11(7) of the Firearms Act.
Mr Lee emailed the firearms registry on 27 October 2021 to find out what it would consider to be a "reasonable passage of time" before reconsidering granting him a firearms licence. As the firearm licence contraventions happened over eight years ago and the Tribunal had recently accepted his good character, Mr Lee sought this guidance to help decide whether to request internal review. Mr Lee received no response. On 3 November 2021, Mr Lee applied to the Respondent for internal review of the Decision under section 53 of the Administrative Decisions Review Act 1997 (NSW) ("ADR Act").
On 21 February 2022, the Firearms Registry notified Mr Lee that, after conducting an internal review, a different Senior Adjudicator had affirmed the Decision to refuse his category A, B, and C firearms licence. The internal review adjudicator referred to Mr Lee's firearms licensing history between 1991 and 2013, his criminal history showing what he considered "deceitful and unsafe misconduct" involving firearms, prior adverse decisions of this Tribunal, and an incident on 9 October 2021 in which Mr Lee was stopped by police for a random breath test, issued with a traffic infringement notice for obscuring his rear number plate and a warning for driving with an unsecured load ("9 October 2021 Incident"). The internal review adjudicator expressed concern about the behaviour of Mr Lee towards the police officer during the 9 October 2021 Incident and found that "based on this recent adverse police attention" he could not be satisfied that similar conduct would not be repeated and that Mr Lee may "similarly disregard aspects of the firearms regulatory scheme." The internal review adjudicator was also not satisfied that there was a special need for a Category C firearms licence. Based on the totality of the information before him, the internal review adjudicator concluded that Mr Lee's conduct "raises very real and relevant concerns" as to his "ability to adhere to regulatory schemes aimed at ensuring public safety" and "an ongoing lack of regard for the traffic laws and regulations." He therefore affirmed the Decision.
On 15 March 2022, Mr Lee filed his application with this Tribunal for administrative review of the Decision, under section 75(1)(a) of the Firearms Act and section 9 of the ADR Act. In short, he submits that the correct and preferable decision should be to grant the firearms licence. He points to the passage of time and the efforts he has made to improve his compliance with public safety regimes. The firearms offences occurred over 8 (and in some cases over 30) years ago and that he has since matured, become a grandfather, and abided by all firearms regulation for the past 9 years. Any questions about his fireworks business have been resolved. As for traffic violations, he acknowledges his poor history but emphasises that he has worked hard to improve his driving habits. He says he has taken this on board especially after the decision in Lee 2020 linked the refusal of his licence to disregard for traffic safety. He waited to receive all his points back before he re‑applied for his firearms licence. The 9 October 2021 Incident related to unintentional non-serious infringements which he immediately rectified. Mr Lee rejects the characterisation of his conduct as improper and says he was anxious about any traffic fines impacting his prospects of regaining his firearms licence. Not having his firearms licence has had an "unimaginable negative impact". He reiterated his need for the licence on his farm. He referred to earlier findings by two members of this Tribunal that he is of good character.
In the Respondent's view, insufficient time has passed without incident for Mr Lee to be granted a licence. It says the 9 October 2021 Incident casts doubt on whether Mr Lee is a fit and proper person, but the Respondent's main focus was on the public interest ground for refusal under section 11(7) of the Firearms Act. The Respondent submits the Tribunal should particularly take into account the most recent violations and conduct exhibited during the 9 October 2021 Incident, as assessed against the background of Mr Lee's extensive history of firearms offences and traffic violations. The Respondent's position is that the correct and preferable decision for this Tribunal is to affirm the Decision. The Respondent does not press the argument about genuine reasons for a Category C licence.
For the reasons that follow, and having considered all the circumstances, I find that issuance of a licence to the Applicant would not be contrary to the public interest. The Decision should be set aside and the Applicant should be granted a Category A, B, and C firearms licence.

Jurisdiction to Review the Decision

According to section 9 of the ADR Act and sections 28 and 30 of the Civil and Administrative Tribunal Act 2013 (NSW) ("CAT Act"), the Tribunal has jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review.
Section 75(1) of the Firearms Act gives this Tribunal jurisdiction, as it allows a person to apply to the Tribunal under the ADR Act for an administrative review of "(a) the refusal of or failure by the Commissioner to issue a licence".
In determining an application for administrative review, section 63 of the ADR Act provides that this Tribunal is to decide what "the correct and preferable decision" is having regard to "any relevant factual material, and any applicable written or unwritten law". It is well established that the Tribunal is not restricted to consideration of the material that was before the Commissioner but may have regard to any relevant material before it at the time of the review (see, e.g., Tannous v Commissioner of Police [2011] NSWADT 116 ("Tannous") at [25]). In determining an application for administrative review of a decision, the Tribunal may decide to affirm the decision, to vary the decision, to set aside the decision and make a decision in substitution, or remit the matter for reconsideration by the administrator (ADR Act, section 63(3)).
Under section 38(2) of the 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.
The standard of proof that applies is the civil standard, that is, on the balance of probabilities. These are not adversarial proceedings and accordingly no burden of proof falls on either party. (Lee 2020) at [12]).
As is apparent from the introduction above, this is not the first time that Mr Lee has applied to this Tribunal for administrative review of decisions by the Respondent to review or revoke licenses. In 2014 he sought administrative review of seven decisions, leading to SM Walker setting aside three of the decisions and confirming four of them, in Lee v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 254 ("Lee 2015"). Then, in 2016, the Appeal Panel in Lee AP allowed an appeal, setting aside the decision in Lee 2015. In 2018, the Supreme Court of NSW refused leave to appeal from Lee AP (Lee v Commissioner of Police, NSW Police Force [2017] NSWSC 1849 ("Lee SC"). In August 2018, Mr Lee re-applied, unsuccessfully, for a firearms licence. Mr Lee sought administrative review by this Tribunal, and SM Montgomery, in Lee 2020, considered that despite Mr Lee's good character, "more time would need to pass" before he could be confident of Mr Lee's regard for public safety.

The Test for Fit and Proper Person

Under section 11(3)(a) of the Firearms Act a licence must not be issued unless 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".
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence (Lee 2020 at [15]-[21]).
The issue is to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Toohey and Gaudron JJ held, at 380, 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, 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.
Chief Justice Mason stated in the same case that The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
In the context of the Firearms Act, the Tribunal has held that fitness and propriety must be considered in the context of at all times ensuring public safety (Lee 2020 at [17]). The Administrative Decisions Tribunal in Nguyen v Commissioner of Police [2007] NSWADT 16 stated: The fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety. In my opinion Parliament has made this clear with the additional words in s. 11(3)(a) of "…and can be trusted to have possession of firearms without danger to public safety and the peace." That is, s. 11(3)(a) of the Act requires the Commissioner to determine the fitness and propriety of an applicant for a licence by having regard to the applicant's conduct and whether that conduct is such that he can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace.

At a glance

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Judgment (12 paragraphs)

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Legislation Cited (3)

Cases Cited (14)