Lukas v Commissioner of Police

NCAT Administrative and Equal Opportunity|2021-05-14

REASONS FOR DECISION

Mr Paul Lukas was first issued with a Category ABH firearms licence No. 407389804 under the Firearms Act 1996 in March 2000, for the genuine reasons of "sport/target shooting" and "recreational hunting/vermin control". He had held a target pistol licence under the previous legislation between 1986 to 1998. The Category ABH licence was renewed in April 2005, April 2010 and April 2015, due to expire on 5 April 2020.
On 17 March 2020 Mr Lukas applied for renewal of the licence. On 2 June 2020 the licence was suspended, and notice of a special condition served. Mr Lukas applied to the Tribunal for review of the decision to suspend the licence, and that proceeding (2020/222763) was dismissed on 3 September 2020, there being no jurisdiction to review the suspension of a firearms licence.
On 21 August 2020 a delegate of the respondent Commissioner determined to refuse the application for renewal of the licence, on the ground that Mr Lukas had not complied with the requirements of cl 106 of the Firearms Regulation 2017 (the Regulation) which required for a Category H pistol sport/target shooting licence that the holder be a member of at least one approved pistol club and participate in shooting activities of an approved pistol club. Mr Lukas sought internal review of that decision. The outcome of the internal review application was not notified within 21 days, and on 6 November 2020 Mr Lukas applied to the Tribunal for administrative review.
On 10 December 2020 the respondent determined the internal review, and affirmed the original decision on the ground under s 11(7) of the Firearms Act 1996, that issue of the licence would be contrary to the public interest. That decision was based on failure to maintain mandatory club participation requirements, and on Mr Lukas' failure to provide information to the Firearms Registry that he suffers from chronic depression.

Relevant legislation

The general principles and objects of the Firearms Act are set out in s 3, and relevantly include: 3 Principles and objects of Act (1) The underlying principles of this Act are - (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety - (i) by imposing strict controls on the possession and use of firearms, and … (2) The objects of this Act are as follows - … (c) to require 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, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms, …
Section 11 of the Act provides: 11 General restrictions on issue of licences … (3) A licence must not be issued unless - (a) 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, and … (4) Without limiting the generality of subsection (3) (a), 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 - (a) the applicant's way of living or domestic circumstances, or (b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or (c) the applicant's intemperate habits or being of unsound mind. (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. (8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence.
Section 12 provides that the Commissioner must not issue a licence that authorises the possession and use of a firearm unless satisfied that the applicant has a genuine reason for possessing or using the firearm. Genuine reasons include: Reason: sport/target shooting The applicant must be a current member of a shooting club approved by the Commissioner in accordance with the regulations, and which conducts competitions or activities requiring the use of the firearm for which the licence is sought. Reason: recreational hunting/vermin control The applicant must - (a) be the owner or occupier of rural land, or (b) produce proof of permission given by the owner or occupier of rural land, or by an officer or employee of the National Parks and Wildlife Service, the Department of Industry or other authority prescribed by the regulations, to shoot on rural land, or (b1) produce proof of permission given by a land manager within the meaning of the Forestry Act 2012 to shoot on land in respect of which the land manager is authorised to exercise functions as land manager under that Act, or (c) be a current member of a hunting club approved by the Commissioner in accordance with the regulations. The regulations may provide for the manner and form in which any such permission is to be given, the extent to which it operates, and how it is to be produced as evidence by the applicant. A person does not, so long as the person is authorised to give permission to shoot on land referred to in paragraph (b) or (b1), incur any liability merely because the person gives the applicant permission to shoot on the land concerned.
Sections 13 and 16 impose restrictions on the issue of a Category B and a Category H licence respectively: 13 Category B licences - restrictions on issue(cf APMC 3 (c)) Subject to the regulations, the Commissioner must not issue a category B licence to any person unless the person, in addition to establishing a genuine reason for being issued with the licence, produces evidence to the satisfaction of the Commissioner that there is a special need for the person to possess or use a firearm to which licence category B applies. 16 Category H licences - restrictions on issue(cf APMC 3 (c), 1989 Act s 21 re pistols) (1) The Commissioner must not issue a category H licence to any person unless - (a) the genuine reason established by the person for being issued with the licence is any one or more of the following - (i) sport/target shooting, … (b) in addition to establishing any such genuine reason, the person produces evidence to the Commissioner's satisfaction that there is a special need for the person to possess or use a pistol. … (2) The Commissioner must not issue a category H (sport/target shooting) licence (other than a probationary pistol licence) to a person unless - … (c) the application for the category H (sport/target shooting) licence is supported by a written statement by the secretary or other relevant office holder of the pistol shooting club of which the person is a member confirming that the person has complied with the conditions specified in section 16A (2). (3) Subsection (2) does not apply in relation to a person if the person has previously held a category H (sport/target shooting) licence.
Clause 29 of the Regulation provides that a licence for the genuine purpose of sport/target shooting is subject to the condition that the licensee must comply with any applicable requirements of Part 10 (Participation requirements for club members).
Clauses 106 and 107 specify the minimum participation requirements for pistol sport/target shooters, and sport/target shooters other than pistol shooters: 106 Participation requirements for pistol sport/target shooters (1) The holder of a category H (sport/target shooting) licence must be a member of at least one approved pistol club and must during each compliance period for such a club of which the person is a member participate in shooting activities of an approved pistol club (whether or not a club of which the person is a member) as follows - (a) during a compliance period in which the person has only 1 kind of pistol - the person must participate in at least 6 shooting activities of an approved pistol club that are competitive shooting matches, (b) during a compliance period in which the person has 2 kinds of pistol - the person must participate in at least 4 shooting activities of an approved pistol club for each kind of pistol (a minimum of 8 shooting activities in total) of which at least 6 must be competitive shooting matches, (c) during a compliance period in which the person has 3 kinds of pistol - the person must participate in at least 4 shooting activities of an approved pistol club for each kind of pistol (a minimum of 12 shooting activities in total) of which at least 6 must be competitive shooting matches. (2) There are 3 different kinds of pistol for the purposes of this clause - air pistols, rimfire pistols and centre-fire pistols. A black powder pistol is to be regarded as a centre-fire pistol. (3) The number of different kinds of pistol that a person has during a compliance period is the number of different kinds of pistol that the person has registered in their name during the compliance period. (4) If the number of different kinds of pistol that a person has during a compliance period changes during the compliance period, it is the highest number that the person has that determines the number of shooting activities that the person is required to participate in during the compliance period but in such a case the Commissioner may reduce the required number of shooting activities if the Commissioner considers it to be fair and reasonable to do so. 107 Participation requirements for sport/target shooters (other than pistol shooters) The holder of a licence issued for the genuine reason of sport/target shooting (not being a category H licence) must be a member of at least one approved shooting club (other than a pistol club) and must, during each compliance period for such a club of which the person is a member, participate in not less than 4 shooting activities of an approved shooting club (other than a pistol club) whether or not of a club of which the person is a member.
Clause 108 of the Regulation provides the minimum participation requirements for the holder of a licence issued for the genuine reason of recreational hunting/vermin control to a member of an approved hunting club: 108 Participation requirements for member of approved hunting club (1) The holder of a licence issued for the genuine reason of recreational hunting/vermin control to a member of an approved hunting club must be a member of at least one approved hunting club and must, during each compliance period for such a club of which the person is a member, participate in no less than 2 hunting club events. (2) This clause applies only where membership of an approved hunting club is the sole ground on which the licensee has established the genuine reason of recreational hunting/vermin control. (3) In this clause - hunting club event means any event approved by any approved hunting club (whether or not a club of which the licensee is a member) involving hunting, shooting or firearms safety training.
The Firearms Regulation 2006 made similar provision for participation requirements for club members. Clause 96(1) specified for an approved pistol club, participation over each 12 month period in at least 6 club organised competitive shooting matches and at least 4 club organised shoots for each different kind of pistol; for any other approved shooting club, participation in no less than 4 shooting competitions or attendance at a shooting range on no less than 4 occasions for shooting practice. Similar provision was made in cl 81 of the Firearms (General) Regulation 1997.
Clause 30 of the Regulation provides that a person (not being a member of an approved hunting club) who proposes to establish recreational hunting/vermin control as a genuine reason for being issued with the licence and, in order to do so, is required to produce proof of permission to shoot on rural land, must produce with the application as evidence of the permission, written permission to shoot on the land, or a statutory declaration verifying that permission to shoot on the land has been given.
Under s 7A(2) of the Firearms Act it is an offence to use a firearm other than in connection with the "genuine reason" for possessing the firearm. Clause 15(1) of the Regulation provides that a licensee must, within 14 days, notify the Commissioner if that person's genuine reason for possessing or using a firearm can no longer be established.
Under cl 105 of the Regulation, the "compliance period" for an approved club means each consecutive 12-month period that starts on the day of the year that the club has determined to be the start of its compliance period for the purposes of participation by club members. Part 3 of the Firearms Amendment (COVID-19) Regulation 2020, in effect from 15 April 2020, extended the compliance periods specified in Part 10 of the Regulation by 12 months if the terms of any public health order operated to restrict or prevent a person's ability to comply with those requirements.
A person must not, in or in connection with an application under the Act or the regulations, make a statement or provide information that the person knows is false or misleading in a material particular: Firearms Act, s 70.

Tribunal review

The task of the Tribunal on administrative review under s 63 of the Administrative Decisions Review Act 1997 is to determine what is the correct and preferable decision, having regard to the material then before it including any relevant factual material and any applicable written or unwritten law.
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: Civil and Administrative Tribunal Act 2013, s 38(2).

Evidence

Mr Lukas relied upon: 1. Statement by Paul Lukas, dated 8 February 2021 (ex A1); 2. Psychological assessment by Mr Michael Kruger-Davis dated 8 February 2021 (ex A2); 3. Statement by Mrs Margaret Lukas dated 4 February 2021 (ex A3); 4. Statement by Mr Travis Lukas dated 6 February 2021 (ex A4); 5. Statement by Mr Danny Gascoyne dated 8 February 2021 (ex A5); 6. Report by Dr Ashley Mills, dated 2 February 2021 (ex A6); 7. Statement by Mr Cameron McFadzean dated 1 February 2021 (ex A7).
Mr Lukas, Mrs Margaret Lukas, Dr Ashley Mills, Mr Kruger-Davis, and Mr Peter Ross, gave oral evidence.
The Commissioner relied on: 1. Documents provided under s 58 of the ADR Act (ex R1); 2. Additional material including material produced under summons by Transport NSW (ex R2); 3. Outline of submissions and supporting documents (ex R3); 4. Supplementary Submissions (ex R4); 5. Materials relating to Mr Kruger-Davis (ex R5).

Consideration

The Commissioner contends that Mr Lukas is not a fit and proper person who can be trusted to have possession of firearms without danger to public safety or to the peace, and that it is not in the public interest for him to hold a firearms licence. The Commissioner contends that: 1. Mr Lukas has not complied with the participation requirements for the genuine reasons specified by him, does not have a genuine reason for possession and use of firearms, and has failed to provide notice of not having a genuine reason; 2. Mr Lukas has provided false and misleading information in his applications for firearms licences: 1. In 2010 and 2015, about his club membership and genuine reason; 2. In 2010, 2015 and 2020, about not receiving treatment for a nervous or mental condition, namely depression; 1. Mr Lukas has an ongoing mental condition, namely depression; and 2. Mr Lukas has a longstanding high level of alcohol consumption.
Mr Lukas contends the decision should be set aside, on the grounds that he has always been safe around firearms, there has never been any suggestion that they would be used inappropriately, his treating medical professionals have approved his use of firearms, and he holds virtually no risk to the public. Mr Lukas submits that: 1. While he has been diagnosed with depression, there is effective treatment and a lengthy period of stability; 2. He would comply with the requirements for his Category A and B firearms, particularly when read together with the Firearms Amendment (COVID-19) Regulation 2020; 3. If he had issues with alcohol it should have impacted on his driving record yet there has been no incidences of drink driving, and he has shown respect for the drink driving legislation, and he is not dependent on alcohol; 4. In relation to the incorrectly answered questions on his application forms, he did not set out to deceive. He believed that depression was not a mental health issue, and he has regularly and over a long period of time been involved in shotting activities; and 5. Safety has never been an issue.

Participation requirements

The Commissioner submits that Mr Lukas has breached the requirements of the legislation for a Category H pistol licence: 1. by not having participated in any competitive shooting match over the 23 years in which he has held a Category H licence; 2. by failing to notify the Commissioner of his not having a genuine reason for holding a pistol licence due to breaks in his membership of pistol clubs; and 3. by making a false and misleading statement in his applications for renewal of his pistol licence in 2010 and 2015 that he was a member of a pistol club.
The Commissioner further submits that Mr Lukas has failed to comply with the minimum annual participation requirements for target shooting for his Category AB firearms licence, or to notify the respondent that his genuine reason for that licence ceased in 2008, there being no record of his participation in shooting activities while a member of the Sporting Shooters Association of Australia (SSAA).
In relation to the genuine reason of recreational hunting, the Commissioner submits that while Mr Lukas has provided approval by a rural land owner to shoot vermin on their land, there is scant evidence that he has exercised or continues to exercise the opportunity afforded by that consent.
Mr Lukas acknowledges that at times he has not met the minimum participation requirements for shooting activities. He submits that he would comply with the requirements for his Category A and B firearms, particularly when read together with the extension for shooting activities pursuant to the Firearms Amendment (COVID- 19) Regulation 2020.
In his statement (ex A1) Mr Lukas states: 1. From 1988 to 1990 he was President of Brewarrina Pistol Club, and was a general member of that club until 2009. He actively participated in target shooting at their range and complied with licensing requirements. The club is no longer operational and he is unable to obtain confirmation of attendance records; 2. He joined Williamtown RAAF Pistol Club in 2015 and was a member for three years. He did not renew his membership in October 2018 because he believed they were transferring all memberships to Capertree Pistol Club which was not convenient to him; 3. In November 2018 he joined Cessnock Pistol Club. He attended the range for training in air pistols with his daughter and son. He attended on three dates in October and November 2018, but was not listed as participating and his attendance was not recorded as he was not enrolled in the training program to obtain a licence and was not competing; 4. He became ill in March 2019, requiring surgery, and his prolonged recovery into 2020 prevented further attendance at any shooting ranges. He did go recreational hunting in early March 2019 with his rifles at a property in Brewarrina where he regularly shoots with permission of the owner; 5. Because of his illness and inability to attend Cessnock Pistol Club he did not realise his 2019/20 membership fees were outstanding. As soon as he was well enough he went and paid them. He did not receive a renewal notice because it was sent to an incorrect address.
Mr Lukas acknowledged that he had not met the full attendance requirements recently for pistol shooting, however this was not a deliberate avoidance or unwillingness but due to his long illness. He acknowledged he may not have met the twice yearly requirement for recreational hunting only in 2020, which was also due to illness and the COVID 19 restrictions on non essential travel and activities. He believed he had additional time to meet his compliance activities in accordance with the Firearms Amendment (COVID-19) Regulation.
In oral evidence Mr Lukas stated that he had previously been shooting every couple of weeks in Brewarrina on weekends on numerous properties before moving to the Newcastle area in 1995, and still travelled back. He agreed there had been a period of time when he had not been pistol shooting, and said that if he got his licence back he would have to stay on top of that. He agreed that between 2009 to 2015 he was not a member of any pistol club. Asked why he had certified in his renewal application in 2010 that he met the requirements for his stated genuine reason, including club membership to support sport/target shooting, Mr Lukas said that he was attempting to join another club, he was doing longarm shooting, and his pistols were in the safe and not used. He agreed that in January 2015 when he applied for renewal of his licence he was not a member of any pistol club, and he conceded that he did not join Williamtown RAAF club until July 2015. He agreed he should not have certified that he met the genuine reason requirements in that renewal application.
In relation to his Category AB licence, Mr Lukas stated that he had not used his longarm firearms with the SSAA. He would usually shoot on properties for vermin and thought that was enough. He joined the SSAA because he supports them. Taken to the 2015 renewal application, Mr Lukas conceded he had renewed his membership of the SSAA only after he lodged that application with the Firearms Registry. He did not notify the Firearms Registry of the break in membership because he did not realise it had lapsed. He was not aware he had to engage in target shooting with his longarm firearms. He was last at the property he specified in the 2020 renewal application in March 2019.

Discussion and findings

The Regulation specifies the requirements of licence holders for each of the genuine reasons relied upon to justify their obtaining a firearms licence. For the genuine reasons of sport/target shooting and recreational hunting/vermin control, those requirements are specified in Part 10 of the Regulation.
In his application for renewal of his licence in 2005 Mr Lukas specified as genuine reasons Sport/Target Shooting, and Recreational Hunting/Vermin Control. On the Genuine Reason Form - Sport/Target Shooting he specified he was applying for a Category H licence (Target shooting only), and certified that he was a current member of an approved shooting club and approved to shoot in Pistol Target Shooting.
He stated as his special need for a Category B firearm: To compete in SSAA target shooting competitions both close and long distance using centre fire rifles. The humane control of small and large vertebrae feral animals.
On the Genuine Reason Form - Recreational Hunting/Vermin Control, the licence types applied for were Category A (air rifles, rimfire rifles (not self-loading), shotguns (not pump action or self-loading) and shotgun/rimfire combinations), and Category B (muzzle loading firearms (not pistols), centre-fie rifles (not self-loading), and shotguns/centre-fire combinations). Mr Lukas provided a signed permission from the owner of rural land near Brewarrina for him to shoot on his property, and stated as his special need for a Category B firearm that the game vermin to be hunted on that property included small game such as rabbits, hares and birds (Category A) and larger game such as foxes, goats and pigs (Category B) (ex R2, pp 48-53).
The renewal applications in 2010 (ex R2 pp 56-7) and 2015 (ex R2, pp 59-60) continue the specified genuine reasons of Sport/target shooting (Categories A, B, H) and Recreational hunting/vermin control (Categories A and B).
In relation to the requirements for his Category H pistol licence, it is not in dispute that Mr Lukas was not a member of a pistol club between 2009, when the Brewarrina Pistol Club ceased operation, and when he joined Williamtown RAAF Pistol Club in 2015. Mr Lukas became a member of the Cessnock Pistol Club in November 2018. Cessnock Pistol Club has confirmed on 1 December 2020 that Mr Lukas did not pay fees for 2019/20, and it was assumed that he had resigned from the Club, and that he attended the Club in early 2020 and paid fees for 2019/20 and 2020/21 period; and that he recorded no scored attendances in that time (ex R1, p 86).
The SSAA confirmed on 27 November 2020 that Mr Lukas was a member from March 2005 to March 2008, July 2008 to March 2009, and April 2015 to April 2021. The SSAA confirmed that there were no target or hunting longarm activities recorded for Mr Lukas for the years 2008/2009 (no earlier data available) to 2020/2021 (ex R1, p 84).
There is evidence that Mr Lukas has the permission for recreational hunting/vermin control required by cl 30 of the Regulation. In support of the internal review application, Mr Lukas provided a letter of authority dated 11 September 2020 from the owner of a rural property in Brewarrina Shire, stating that Mr Lukas had had his permission for shooting for the purposes of vermin control on his property since 1988; and that Mr Lukas had been a regular visitor to his property during the past 32 years and assisted with control of vermin including wild pigs, rabbits and feral dogs. Mr Ross, a retired Police officer who gave evidence on Mr Lukas' behalf, confirmed that he had accompanied Mr Lukas on various trips to the Brewarrina area where they had carried out vermin control/shooting pigs and foxes at properties. Mr Lukas' evidence was that the last time he went recreational hunting was in March 2019.
The Tribunal concludes that while he would satisfy the requirement in cl 30(1)(a) of the Regulation by having permission to shoot on rural land, Mr Lukas has failed to comply with the minimum annual participation requirements specified in the Regulation, or the former legislation, based on approved club membership for the firearms licences he has held. There is no evidence that he has participated in any shooting activity conducted by an approved club of which he was a member, since at least 2009 when the Brewarrina Pistol Club ceased operation. While there was an extension of the compliance period by the Firearms Amendment (COVID-19) Regulation 2020 for 2020/2021, that does not overcome the fact that Mr Lukas has not recorded any attendances at an approved pistol club, or for target or longarm hunting activities through the SSAA, for over 10 years.
Mr Lukas has failed to maintain membership of an approved club throughout that period. There was a break of 6 years after the Brewarrina Pistol Club ceased operation in 2009 before he joined the Williamtown RAAF Pistol Club, prompted by the renewal of his licence in that year and the request on 19 March 2015 for him to provide a copy of a current club membership card. In relation to the Category A and B firearms, while Mr Lukas has been a member of the SSAA since March 2005, there was a gap of 6 years between March 2009 and April 2015.
Mr Lukas certified in his renewal applications on 25 March 2010 and 20 January 2015 that he could satisfy the legislative requirements and provide evidence of his genuine reasons, "for example club membership to support sport/target shooting" (ex R2, pp 57, 60). That was not correct. He was not a member of an approved club on either of those dates. While he made that certification again on his renewal application on 17 March 2020, he had renewed his membership of the Cessnock Pistol Club only in early 2020, after a break of over a year.
The Tribunal finds that while it can be satisfied that Mr Lukas has the permission required by cl 30 of the Regulation for recreational hunting/vermin control, he does not otherwise meet the requirements of the legislation in terms of either club membership or shooting activities, and has not done so for a significant period.

Mr Lukas' mental health

The respondent submits that Mr Lukas has an ongoing mental condition, namely depression, which he failed to disclose in his 2010, 2015 and 2020 licence renewal applications.
The respondent further submits that Mr Lukas has a longstanding and increasing level of alcohol consumption, relying on Dr Mills' consultation notes of 18 July 2014, Dr Mills' referrals to Dr Sankoorikal and Dr Ambrogetti in 2020, Dr Sankoorikal's report of 1 November 2016, and the cover sheet to the medical history summaries produced under summons; and a NSW Police COPS Event report dated 21 March 2020.
The firearms licence renewal application forms require an applicant to answer Yes or No to the question "Have you ever attempted suicide or self harm, or in the past 12 months been referred or treated for alcoholism, drug dependence, or a mental or nervous disorder or illness?". On the renewal forms in evidence for 2010, 2015 and 2020, Mr Lukas answered "No".
In his statement Mr Lukas conceded that he had answered "No" to that question. He stated that he realises now that is incorrect, as his regular GP appointments and medication reviews include depression monitoring. Because he does not feel depressed or show symptoms and has never been referred to any counsellors, psychologists or psychiatrists, he accidentally overlooked this.
Mr Lukas stated that in October 2020 he submitted his latest medical report for his commercial drivers licence to the RMS, and the notation "chronic depression effective from 03/11/2020" has been made on his licence record months after submitting his firearms renewal online. He has now undergone a full psychological assessment by accredited and registered psychologist Michael Kruger-Davis in relation to the concerns expressed by police about this notation of depression.
In oral evidence Mr Lukas agreed that his GP Dr Ashley Mills first diagnosed depression in 2008, and that he has been on medication continuously since then. He accepted that he had submitted the Fitness to Drive Medical Assessment review forms to the RMS for his drivers' licence, on which for the 2009 and 2011 forms Dr Mills had written "depression" as the diagnosis under "Mental Health", and that in 2016, 2018 and 2020 Dr Mills had ticked the box marked "Chronic depression". Mr Lukas accepts that he has depression, that it is ongoing, and that he is under medication. For the firearms licence renewals he did not answer the mental health question "yes" in 2010 because he did not realise depression came under mental health; in 2015 because he was being treated for mild depression; and in 2020 because he did not realise that slight depression came under "mental health".
Mr Lukas was questioned about a medical certificate provided by Dr Tullio Savio on 26 September 2018 stating that Mr Lukas was unfit to attend a conciliation hearing in the Tribunal scheduled for 2 October 2018, that he was "suffering from major depression currently managed with medication and counselling", and that his mental health would "be adversely affected by his attendance and related stressors" and he supported his application to be excused and to nominate his wife to appear on his behalf. Mr Lukas said that the 2018 Tribunal proceedings were for recovery of money in a commercial dispute, and he had been verbally abused by the other party and he did not want another confrontation so he had asked for his wife to go instead.
In oral evidence Mr Lukas said that if he has had a long hard day he winds down with 2 or 3 or sometimes 4 drinks. On rare occasions he has had more than 4 drinks. If he is shooting at Brewarrina he does not use alcohol. He had had possibly 6 drinks when he was admitted to hospital in March 2020 after an argument with his sons. He does not drink full strength beer at all.
In her statement (ex A3) Ms Margaret Lukas stated that Mr Lukas is a licensed builder and proprietor of Stone Obsessions which specialises in stone benchtops in the home building industry; she works full time with him. She confirmed that Mr Lukas was diagnosed with depression in 2008, having sought medical advice when he experienced irritability and a low mood when they faced financial difficulty when a former business partner stole operating capital and equipment. Mr Lukas is able to recognise the stressors that could cause him worry or anxiety and he takes steps to alleviate those problems. He is very serious about maintaining and monitoring his health, and he shows no signs of depression or mental disorder.
In oral evidence Ms Lukas stated that her husband's depression is well managed to the point that it is not evident, he is not withdrawn, is socially active, and does not have low mood. He may have 3 or 4 beers after work, sometimes up to 6 at a party, but rarely. Asked about the previous Tribunal proceedings and Dr Savio's medical certificate, she said that the only way the other party would allow her to come to the conciliation was with a medical certificate. Her husband was worried that the other party was being abusive and hostile.
In support of his application for internal review Mr Lukas had provided a statement by Mr Peter Ross, retired NSW Police officer, dated 21 September 2020 (ex R1, p28). Mr Ross stated that he has known Mr Lukas for 16 years, was a fellow pistol club member and attended Williamtown RAAF pistol club with Mr Lukas, and has accompanied Mr Lukas on various trips to the Brewarrina area where they have carried out vermin control/shooting pigs and foxes at properties. Mr Ross stated that he believes that Mr Lukas has always complied with firearms safety practices, and is a very safe, cautious and reliable shooter.
In oral evidence before the Tribunal Mr Ross stated that he was a weapons and self-defence instructor when working with NSW Police and he is intolerant of people who do not do the right thing. He has no problem with Mr Lukas at all. They may have a beer in the evening, but no alcohol while shooting. He has not seen Mr Lukas shoot pistols, his observation of him as a safe and trustworthy firearms owner and shooter is more in relation to their hunting activities.
Dr Ashley Mills provided a statement dated 2 February 2021 in which he confirmed that he has been Mr Lukas' GP for over 20 years. Mr Lukas has been treated for depression since 2008, and this has been well controlled with therapeutic doses of different antidepressant medications. He is not aware of any particular intent of Mr Lukas to harm himself or others. He is not sure that the revocation of Mr Lukas' licence is justified on medical grounds given his long history of trouble free gun ownership and his willingness to ensure his depression is well controlled with appropriate therapy.
In oral evidence Dr Mills stated that the RMS medical history form changed in 2016 and he ticked the box "chronic depression". That is a reference to the length of time that depression has been present, and not severity. Mr Lukas is diagnosed and treated and there is no difference between recording "depression" and "chronic depression". Asked about Mr Lukas' alcohol consumption Dr Mills stated that his record of 120mg per day in a referral dated 4 September 2020 would presumably have come from Mr Lukas. Asked about a referral dated 21 January 2021 in which he recorded that Mr Lukas drinks 3-4 beers a day, Dr Mills noted that his consumption had changed over time. He thinks that Mr Lukas' alcohol consumption has fluctuated a bit. Alcohol is a depressant and the issue with depression is not the combination with medication but the added depressant effect.
In his report dated 8 February 2021 Mr Michael Kruger-Davis, psychologist, recorded that he had conducted a clinical interview, mental status examination and suicidal risk assessment on 4 February 2021 by telehealth, having provided Mr Lukas with depression, anxiety and psychological distress questionnaires by email on 3 February 2021 which were returned on 4 February, and conducted a "Facetime" videoconference on 6 February 2021. Mr Kruger-Davis stated that he had a telephone conversation with Dr Mills on 8 February 2021. Mr Kruger-Davis stated that the assessments conducted on 4 February 2021 were a Mental Status Examination, Beck Depression Inventory-Second Edition (BDI-II), Beck Anxiety Inventory, Depression Anxiety Stress Scale (DASS), Kessler Psychological distress Scale K10, and AISRAP Australian Institute for Suicide Research and Prevention Protocol (Suicide Risk Assessment).
Mr Kruger-Davis's conclusion was that based on his assessments and interviews, it was his opinion that Mr Lukas is fit and proper to possess and use firearms. Mr Kruger-Davis stated that in his opinion Mr Lukas is of sound mind and would be able to exercise rational judgment and responsible control over the possession and use of firearms. His chronic depression is well managed and he does not suffer anxiety, psychological distress or any substance abuse disorder or personality disorder. He is currently not presenting with any symptoms of depression. Mr Kruger-Davis concluded that Mr Lukas is very unlikely to pose a threat to the public or himself if he were to possess or use firearms, and he recommended that the suspension of his firearms licence be overturned and his licence and firearms returned.
In oral evidence Mr Kruger-Davis agreed that he had not observed Mr Lukas completing the DASS or K10 assessments which he had sent by email. He agreed he was not treating Mr Lukas but providing an assessment of his mental health for the purposes of his firearms licence. He sometimes sees people in person, sometimes remotely, with telehealth protocols. Mr Kruger-Davis agreed he had undertaken assessments of applicants for review represented by the firm representing Mr Lukas, that he is a shooter himself and has written articles about shooting, and that he is consulting psychologist for the Southern Sports Academy in NSW. Mr Kruger-Davis said that he has written more than 350 articles for various journals including business magazines.

Discussion and findings

It is not in dispute that Mr Lukas was diagnosed with depression in 2008 by his GP, Dr Mills, and that he has been on medication since then. Based on the evidence of Dr Mills, the Tribunal accepts that the description of Mr Lukas' depression as "chronic" in responding to the standard form medical assessment for a commercial drivers licence from 2016 indicates that it is longstanding, and does not indicate a degree of severity. There is no evidence to counter that of Mr Lukas and Dr Mills, which is supported by Ms Lukas, that Mr Lukas' depression is managed by medication, that he does not see a psychologist or psychiatrist for the condition, and that he does not feel depressed.
The Commissioner submitted that the evidence of Mr Kruger-Davis should be given limited weight, submitting that he has provided a disproportionate number of reports in support of firearms applications in the Tribunal, and the assessments he undertook in this matter and the circumstances in which they were undertaken are easily manipulated.
Mr Kruger-Davis states that he has qualifications in psychology, and is a registered psychologist. The Tribunal does not consider that the fact that he has provided expert opinion evidence in other applications for review of decisions under the Firearms Act, or that he is a shooter himself, as necessarily constituting a reason to diminish the weight to be given to his evidence. What is more significant is that his assessments were undertaken in circumstances where he was not able to observe Mr Lukas, and that his opinions were expressed on matters that are for the Tribunal to determine, including that Mr Lukas is a fit and proper person to possess and use firearms and the decision should be overturned.
The Tribunal places greater weight on the evidence of Dr Mills, who unlike Mr Kruger-Davis has been treating Mr Lukas for some years, seeing him regularly, and whose records confirm that Mr Lukas' depression is well managed. Those records do not indicate any issues of concern for safety of Mr Lukas or others.
It is not in dispute that Mr Lukas did not disclose that he has been treated for depression in the renewal application forms he completed and signed in 2010, 2015 and 2020.
The evidence before the Tribunal, which includes medical records from 2007 obtained under summons from Dr Mills, records varying levels of alcohol consumption by Mr Lukas, from 4 (July 2014) to 6 (November 2016) standard drinks a day to 120g alcohol per day, or 10 standard drinks (September 2020). Included in the s 58 documents is a COPS Event Ref No E74615054 which records an incident on 20 March 2020 involving Mr Lukas and his sons, in which Mr Lukas was taken to hospital. That document states that all persons "were moderately affected by alcohol".
The Tribunal concludes that while the recorded levels of regular alcohol consumption are high, there is no evidence that Mr Lukas' use of firearms or other activities such as driving have been affected. The Tribunal accepts the evidence of Mr Ross that in his hunting activities with Mr Lukas he has not used alcohol. Dr Mills' oral evidence was that there was no indication of alcohol dependency, consistent with the note on the cover sheet of the records from Dr Mills' practice, that alcohol consumption was "previously heavy" and that there was no indication that he had an alcohol dependency problem.

Consideration

Section 11(3)(a) of the Firearms Act provides that a licence must not be issued unless the Commissioner (and on review the Tribunal), 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) provides that without limiting the generality of that requirement, a licence must not be issued if there is reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms, because of "(c) the applicant's intemperate habits or being of unsound mind".
Section 11(7) provides that the Commission may refuse to issue a licence if the Commissioner considers that the issue of the licence would be contrary to the public interest.

Whether issue of the licence would be contrary to the public interest

The term "public interest" is not defined in the Firearms Act. A decision in relation to the public interest in this context is informed by the underlying principles and objectives of the Firearms Act, and the strict controls provided in the legislation. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence: The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.
The "public interest" allows 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, NSW Police Force [2013] NSWADTAP 16. The purpose of a reference in legislation to "the public interest" is "to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the decision-maker's consideration": Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657, 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.
The Tribunal accepts that there is no evidence that Mr Lukas has presented a risk to public safety in his possession and use of firearms, which has, on the evidence before the Tribunal in any event been confined for many years to occasional recreational shooting on a rural property. What is of concern is his complete failure over many years to comply with the legislative requirements for club membership and regular participation, and his provision of incorrect information to the licensing authority.
The underlying principles as stated in s 3(1) of the Firearms Act emphasise that firearms possession and use is a privilege conditional on the overriding need to ensure public safety. The controls imposed on the possession and use of firearms in the interests of public safety include a requirement that the holder of a licence comply with their obligations in relation to participation, and comply with any conditions on the licence. The public interest requires that licensees are aware of and comply with the legislative requirements for holding a licence: Vella v Commissioner of Police, NSW Police Service [2003] NSWADT 91 at [4]. The responsibilities of a licence holder are serious, and a licence holder must not only understand and comprehend the legislative requirements, but act in accordance with them.
In Todorovski v Commissioner of Police [2019] NSWCATAD 192 at [130], the Tribunal found that disregarding the requirement to support a genuine reason, particularly for a number of years, was not in the public interest. The Tribunal noted that: ...the admitted total disregard of the requirement over a period of five years in that case was a substantial dereliction that could not be overlooked. In those circumstances it cannot be in the public interest for the licensee to continue to hold the licence.
In Kassem v Commissioner of Police [2021] NSWCATAD 213 (Kassem) the applicant had been issued a Category AB firearms licence in 2013 for the genuine reasons of sport/target shooting and recreational hunting/vermin control. He failed to comply with the minimum attendance requirements for the compliance periods after 2017. At [30] the Tribunal held that the contravention was not merely a "technical" breach; the legislation set out clear obligations and the applicant had failed to comply with those obligations over a period of several years, and the failure to comply could not be disregarded as an oversight. In this matter, as was the case in Kassem, and in contrast to the situation in Garder v Commissioner of Police, NSW Police Force [2018] NSWCATAD 199 in which the applicant had held a firearms licence for only 8 months before it was suspended and had failed to comply for a short period, Mr Lukas' non compliance has extended over many years.
Mr Lukas' representative relied on the decision in Kingston v Commissioner of Police, NSW Police Force [2018] NSWCATAD 51, where the Tribunal found that the applicant had breached the condition relating to his genuine reason of sport/target shooting for holding a licence and participation requirements, but found that he could also have relied on owning or occupying land to support the genuine reason of recreational hunting/vermin control; and on that basis would not have exercised the discretion to revoke his licence on that ground subject to him notifying the change in reason.
In this matter however, Mr Lukas has contravened a number of provisions of the Firearms Act and the Regulation by failing to comply with the participation requirements specified for each of his Category A, B and H licences. That non-compliance, and contravention of the legislation, has extended over many years. As a former President of Brewarrina Pistol club and as a member of the SSAA, he would have been well aware of the responsibilities attached to his licence. The Tribunal accepts that Mr Lukas' health issues from 2019 may have impacted on his capacity to attend at shooting ranges, however that explains only part of the period, and does not explain his failure to maintain club membership.
Even if Mr Lukas' activities on the rural property in Brewarrina could be regarded as satisfying participation requirements for the genuine reason of recreational hunting/vermin control, the extended period, and nature, of the non-compliances by Mr Lukas are significant.
A further factor is the provision of false information in the renewal applications in 2010 and 2015 about his genuine reasons, and in the 2010, 2015 and 2020 renewal forms about treatment for depression. The certification required in the 2010 and 2015 forms was in the following terms: I certify that I can satisfy the legislative requirements and produce evidence of my genuine reasons as specified within this application (for example, club membership to support Sport/Target shooting) I certify that all information contained in this application is true and correct in every detail and I authorise the release of my personal information to any third party the Commissioner deems appropriate
In Kogias v Commissioner of Police [2020] NSWCATAD 297 the Tribunal held: 101. Legislation such as the Firearms Act serves the public interest in ways that go beyond guarding against misconduct by an individual licensee. Licence refusals and similar orders serve the public interest by establishing a regulatory structure for an activity that not only protects the public from harm, but also helps to maintain public confidence in the licensing scheme by signalling that those whose activities do not meet the required standards will not be granted a licence or permit: Moujalli v Roads and Maritime Services [2017] NSWCATAD 141, [52] - [53]. One of the expressed objects of the Firearms Act is "to establish an integrated licensing and registration scheme for all firearms": s 3(2)(b). 102. Specifically in the context of firearms licensing, the tribunal stated in Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240, [26], that "the system of firearms licensing and the requirement to provide personal information has been developed to ensure that the public is protected as required by the principles and objects set out in section 3 of the Firearms Act". That such information must be true and correct is made explicit by s 70, which states that "A person must not, in or in connexion with an application under this Act or the regulations, make a statement or provide information that the person knows is false or misleading in a material particular…."
No issue was taken with that statement of principle on appeal: Kogias v Commissioner of Police [2021] NSWCATAP 165.
Mr Lukas submits that he did not set out to deceive. Even if withholding of the information in 2010, 2015 and 2020 that he had been receiving treatment for depression was not deliberate, Mr Lukas' explanations as to why he did not disclose that he had been receiving treatment for depression were not convincing. That was a disclosure required and made in the medical reports for the issue of his drivers licence in 2009, 2011, 2016, 2017 and 2020 (ex R3, pp 21-30), also a context where public safety is paramount. The Tribunal does not accept that Mr Lukas could have overlooked it, or not understood that depression was a mental health condition. Even if the depression was well managed, it was still treatment for "a mental or nervous disorder or illness" sufficiently significant to require medication, which had to be disclosed.
As discussed above, Mr Lukas was not a member of an approved club on either of the dates on which he applied for renewal of his firearms licences in 2010 and 2015, despite certifying on those forms that he "can satisfy the legislative requirements and produce evidence" of his genuine reasons. While he made that certification again on his renewal application on 17 March 2020, he had renewed his membership of the Cessnock Pistol Club only in early 2020.
The Tribunal does not accept the submission made by his representative that Mr Lukas could rely on his recreational shooting on rural land, and on the extension of the compliance periods in 2020. The 2010 and 2015 declarations as to his compliance with all the legislative requirements for the licences he held were incorrect. As an experienced shooter, and having been a member and President of Brewarrina Pistol Club, Mr Lukas could be expected to be aware both of what the legislative requirements were, of the importance of compliance with them, and of his obligation to provide true and correct information.
The proper functioning of the system of licensing under the Firearms Act, as reflected in the objects stated in s 3(2), depends on applicants providing true and correct information to the licensing authorities. That is reflected in the offence provision in s 70. Mr Lukas' failure to provide true and correct information both as to his compliance with legislative requirements for his genuine reasons, and relating to his treatment for depression, was not a single isolated incident, but extended over many years, and on several occasions.
Mr Lukas' position at the hearing was that he seeks to have a Category AB and H licence, as he wants to go back to target shooting. Whether or not he might meet the requirements for his genuine reason of recreational hunting/vermin control, the Tribunal concludes that his failure over many years to comply with the requirements for the specified genuine reasons, including club membership and participation, and the provision of incorrect information both as to that compliance and concerning his treatment for depression, mean that it is not in the public interest for a firearms licence to be issued to Mr Lukas.

Whether Mr Lukas is a fit and proper person

Section 11 (3) of the Firearms Act requires that the Tribunal be satisfied that Mr Lukas is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. The Commissioner contends that the Tribunal should not be so satisfied, having regard to his ongoing depression and level of alcohol consumption.
Determination of whether a person is "fit and proper" requires an evaluative judgment, as explained in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321. At 380 Mason CJ explained: 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.
Toohey and Gaudron JJ said at 380: 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.
A person's fitness is to be considered in the light of the activities that the person will undertake: see Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127 at 156-7, Re Percival and Australian Securities Commission [1993] AATA 196; (1993) 30 ALD 280, at 290, Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794, at [41].
In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said: In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.
As discussed above, on the evidence before the Tribunal while Mr Lukas has depression, it is well managed. The extensive medical records, and oral evidence provided by Dr Mills do not indicate any issues of concern for safety of Mr Lukas. His referee Mr Gascoyne (ex 5) states that Mr Lukas is a very stable and level headed person. As discussed above, while the evidence is that at times Mr Lukas' consumption of alcohol has been heavy, there is no evidence that Mr Lukas' use of firearms or other activities such as driving have been affected. Mr Ross' evidence, based on his experience in hunting activities with Mr Lukas, is that he has complied with firearms safety practices, and is a very safe, cautious and reliable shooter.
The Tribunal would not conclude that Mr Lukas is not a fit and proper person for those reasons. However, Mr Lukas has shown sustained disregard over many years for the obligations imposed on him as a licence holder, including failing on several occasions to provide true and correct information relevant to the assessment of compliance and risk to the regulator. In the context where firearm possession and use is a privilege conditional on the overriding need to ensure public safety, the Tribunal is not satisfied that Mr Lukas is, in the terms used in Sobey, a person possessed of sufficient integrity and character to be safely accredited to the public as a person who should be entrusted with the privilege of firearm possession.

Conclusion

The Tribunal is not satisfied that Mr Lukas is a fit and proper person for the issue of a firearms licence, as required by s 11(3) of the Firearms Act. The Tribunal is satisfied that the issue of a firearms licence would be contrary to the public interest, and that it should be refused in accordance with s 11(7) of the Firearms Act. The decision under review should be affirmed.
The Tribunal orders: 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: 15 September 2021

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