McAdam v Commissioner of Police, New South Wales Police Force

NCAT Administrative and Equal Opportunity|2022-09-02

What these proceedings are about

These proceedings concern the Commissioner of Police's decision to revoke the applicant's Category AB Firearms licence on 29 October 2020 and the decision on Internal Review on 17 February 2022 to affirm that decision.

Introduction

The applicant in these proceedings is Mr Kirby James McAdam (Mr McAdam). The respondent is the Commissioner of Police NSW Police Force (the Commissioner). The Commissioner's delegate on internal review formed the view that it was not in the public interest for Mr McAdam to continue to hold a Firearms Licence.
Likewise, the revocation was on the basis that the Commissioner believed that it was not in the public interest for the applicant to hold a firearms licence. That decision was based on information that Mr McAdam had a close association with persons who have extensive criminal history.
On Internal Review the Commissioner's delegate upheld the original decision to revoke the licence. The reviewer made a number of material findings of fact against Mr McAdam concerning his association with criminal elements and concluded that this association presented an unacceptable risk to public safety in the context of unfettered access to firearms and ammunition. The reviewer also determined that the risk was elevated due to the approved (lawful reason for firearms use) being use at a location where a person with significant criminal background was known to reside.

Background

On 31 May 2016 Police issued a category AB firearms licence to Mr McAdam. The licence had been sought for the genuine reason of 'Recreational Hunting / Vermin Control' and 'Sport / Target Shooting'. This was not the first time that Mr McAdam had applied for a firearms licence. He was refused a licence in June 2014 due to having been convicted of a 'prescribed offence' under the then Firearms Regulation 2006 as he had a conviction entered for assault occasioning actual bodily harm (AOABH) in December 2005. As this was within 10 years of Mr McAdam's application the application was refused in accordance with the Commissioner's discretion to refuse such an application under the legislation.
The Commissioner identified a number of concerns relating to Mr McAdam in the period since the licence was issued in May 2016. The following matters were relied upon as findings of fact in the Internal Review:

Mr McAdam requested a Police check in February 2015 concerning a vehicle that entered his property. In that context Mr McAdam mentioned a murdered relative in the United Kingdom and believed that a male was now out to kill his wife.
When the licence as revoked in October 2020 Mr McAdam initially refused to hand over his firearms to Police.
Police relied on information that Mr McAdam had a close association with persons with extensive criminal histories. These matters are denied, and Mr McAdam states that he has no association with gangs, persons involved in gun violence, criminal activity and drug related matters.
On 10 December 2021 Mr McAdam made a report to Penrith Police station concerning a matter on 14 November 2021 about a person he had concerns about. Police queried why the report took so long.

The decision maker concluded that there was an overall risk to public safety regarding Mr McAdam having access to firearms for the reasons outlined earlier and as a result affirmed the earlier revocation decision.

Jurisdiction

The Notice of Revocation was issued under the provisions of the Firearms Act section 24. Relevantly section 24 provides: 24 Revocation of licence(cf APMC 6, 1989 Act s 36, 1990 Reg cl 27) (1) A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order. (1A) The Commissioner must revoke a licence that is held for the purpose of employment as an armed security guard (within the meaning of the Security Industry Act 1997) if - (a) the licensee has failed to undertake any firearm safety training required under this Act or the regulations, or (b) in the case of a licensee who holds a class 1F licence or a visitor permit authorising the licensee to carry out security activities of a kind authorised by a 1F licence under the Security Industry Act 1997 - the 1F licence or visitor permit is revoked under that Act or the licensee contravenes any condition of the firearms licence under this Act. (2) A licence may be revoked - (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or (b) if the licensee - (i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or (d) for any other reason prescribed by the regulations.. ….
Clause 20 of the Firearms Regulation 2017 provides: 20 Revocation of licence - licence not in the public interest The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
Section 75 of the Firearms Act provides that a person aggrieved by any of the seven listed actions of the Commissioner can apply to the Tribunal for administrative review of that decision. The third matter listed at s 75 concerns the revocation of a licence. Relevantly the section provides: Part 8 Applications to Civil and Administrative Tribunal 75 Administrative reviews by Civil and Administrative Tribunal of certain decisions (1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions - (a) the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person, (b) a condition imposed by the Commissioner on a licence or permit issued to the person, (c) the revocation of a licence or permit issued to the person (other than a revocation on the basis that the holder of the licence or permit is subject to a firearms prohibition order or an apprehended violence order), (d).. (e)… (f)… (g)… (Emphasis added)
The Tribunal's powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides: (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The Tribunal has jurisdiction under the Firearms Act as noted at [13] above.
As noted from the section above, an application under s 75 of the Firearms Act is an administrative review. The Tribunal's function on review under section 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

Administrative Review by the Tribunal

The parties agree that Mr McAdam filed his application for Administrative Review on 16 March 2022. As the Internal Review was only received on 19 February 2022 (being dated 17 February 2022) the parties agree that the application to the Tribunal was filed just within the period provided to lodge an administrative review application with the Tribunal.

What issues do these proceedings raise for determination?

On my assessment the issues are as set out by the Commissioners delegate:

Is it in the public interest for the applicant to hold a licence?

This issue will be determined on the basis of factual findings in this review arising from a consideration of the evidence and law.

Applicant's written evidence

Exhibit 'A-1'. Statement of Kirby McAdam dated 17 June 2022.
Exhibit 'A-2': Statement of Michael Vella dated 27 July 2022.

Respondent's written evidence

Exhibit 'R-1' Documents filed under s 58 ADR Act.
Exhibit 'R-2' Supplementary Bundle of part redacted COPS events filed 1 September 2022.

Both parties were legally represented and provided detailed written submissions and made oral submissions at hearing. Mr McAdam was subject to cross-examination at hearing.
The Commissioner initially sought to rely on confidential evidence but this was refused by the Tribunal (differently constituted) at an earlier hearing as to the tender of that evidence. The decision McAdam v Commissioner of Police [2022] NSWCATAD 191 determined that the application to rely on confidential evidence in a closed hearing be dismissed.
The existence of confidential evidence and the application to have matters heard in camera were not of themselves confidential, only the contents of the confidential evidence. As that matter has been resolved the Tribunal proceeded to determine the matter on open evidence only.

Mr McAdam's evidence at hearing

In evidence in chief Mr McAdam adopted his statement (Exhibit A-1). He said that he believes his licence was revoked because of his association with Brad Vella. Mr McAdam told the Tribunal that he went to school with Mr Vella at St Dominic's College in Western Sydney. He said that they had been friends ever since.
Mr McAdam told the Tribunal that he moved his authority to shoot from one location to another property, being Mr Vella's vacant rural property . However since that occurred his licence had been revoked and he had been unable to shoot on that property.
Mr McAdam said that he sees Mr Vella and his partner 'Louise' once or twice a year.
In respect of the material served which indicates that he had not kept his shooting activities up, Mr McAdam said that two matters had impacted on his ability to engage in recreational shooting. He sustained a back injury and had been going through divorce proceedings. He said that during this time he had 100% custody of his two young sons, who were described as being of primary school age.
Mr McAdam said that if he regains his licence as a result of these proceedings then he would continue to engage in target shooting and his sons would soon be eligible for a minor's licence / permit and when that eventuates he would go camping with them and shoot on property where permission was granted.
In respect of the single significant criminal matter from his past (AOABH at [8] above), Mr McAdam said that the circumstances of that matter involved a guy on a scooter doing something very stupid in a crowded pedestrian area where there were lots of witnesses. Mr McAdam said that he 'dragged him off the scooter'. He said that he pleaded guilty on the advice of a friend's Solicitor.
In respect of his traffic history Mr McAdam said that the most serious matter involved a dirt bike crossing a road.
In respect of his overall background Mr McAdam advised that he owned a company called West River Concrete which currently has a large number of employees. Mr McAdam said that he never had any legal problems and had never before been before a Tribunal.
In respect of a number of allegations made about him by his ex-partner Mr McAdam gave evidence that now that he has full custody of the sons, then any matters to do with those false allegations made by his ex-partner and her new partner fall away.
In cross-examination Mr McAdam was taken to the s 58 material concerning the AOABH Court matter. Mr McAdam was asked whether he agreed that he punched the victim with a closed fist, to which Mr McAdam agreed. He said that the circumstances of the matter were set out in part in the Police Facts.
Mr McAdam was taken to his 2014 Declaration when he first applied for a Firearms Licence and the entry records (pg 72 of the s 58's) that he answered 'No' to the question on 13 April 2014 concerning whether he had in the last 10 years been convicted of an offence involving violence. Mr McAdam said that at the time he completed the application he thought that the 10 year period was up but now concedes from the material that it was actually slightly less than nine years.
Mr McAdam accepted when the proposition was put to him that he had an extensive traffic history.
In respect of his letter to the Tribunal dated 17 June 2022 (Exhibit 'A-1'), and the reference to the fact that he had 'never done or been involved in any criminal activity' Mr McAdam accepted that the statement was not entirely accurate and that the very least his AOABH conviction constitutes having engaged in criminal activity.
Mr McAdam was also questioned about a cousin of Mr Bradley Vella, a Mr Michael Vella. Mr McAdam said that Michael Vella did not go to the same school at he and Brad Vella. He had known Brad Vella since school.
When asked about a red Holden Rodeo Utility and a Harley Davidson motorcycle Mr McAdam said that he let Mr Brad Vella ride the Harley Davidson. He gave evidence that the bike was not his but his father in laws and that he had access to it with permission. He agreed that it was registered in his name but denied that he owned the motorcycle.
Mr McAdam was questioned about Brad Vella's imprisonment in 2016 for drug related offences. Mr McAdam said that he knew Mr Vella's partner Louise Donkinss (as noted in his evidence in chief) and so he kept in touch with her while Mr Vella was in prison.
In respect of his membership of the Sporting Shooters Association Australia (SSAA) for which he was establishing a genuine purpose to possess a firearm, Mr McAdam said that he renewed his membership in 2016. At that time, he called Ms Donkins to obtain permission to shoot on their land as necessary 'shooting permission'.
Mr McAdam was taken to the Commissioner's supplementary bundle (Exhibit 'R-2') which noted that his SSAA membership had expired on 28 February 2018. Mr McAdam said that in March 2018 he had notified the Firearms Registry that clay targets shooting was no longer the genuine reason for or the basis for his firearms use. He said that from that time on he would be shooting on rural land. When questioned as to why this arrangement with permission to shoot should be accepted, Mr McAdam's evidence was that he now knows Ms Donkins well enough to have her 'do him a favour and let him shoot on her land'.
Mr McAdam was taken to the 2016 licence application at pg. 81 of the s 58's whereby he had nominated sport target shooting and recreational hunting / vermin control as his then genuine reasons for firearms use. Mr McAdam was questioned as to why he did not mention his back injury.
In re-examination Mr McAdam was asked about Bradley Vella riding the Harley Davidson motorcycle. He was asked specifically when that occurred. Mr McAdam said that those matters took place approximately 15 to 20 years ago.
Mr McAdam said that the Police connection between him and Brad Vella was only made about five years ago. He said that his SSAA membership was for hunting and vermin use. He said that his understanding was that once he has a letter authorising permission to shoot on private rural land there is no stipulated minimum requirement for days or instances of shooting on that land.
In his written evidence Mr McAdam stated that he understood the reason for the revocation was due to Brad Vella being in prison and his association with him. The statement (Exhibit 'A-1') referred to an understanding that neither Brad Vella or Louise Donkinss resided at the rural property where he had been granted permission to shoot. Mr McAdam's statement refers to one of the circumstances for not taking up shooting at the property was that it was four and a half hours drive away, and with responsibility for two young children this was difficult.
The statement referred to the business (West River Concrete) with seven to 10 employees, and living in a home paying off a mortgage. The statement refers to a belief that the action to bring matters about Mr Vella to Police attention (and ultimately the revocation of the licence) were possibly 'related to a vendetta against me', associated with the breakdown of his former relationship and the Family Court matters resulting in his sole custody of the children.
Exhibit 'A-2' is a statement by Michael Vella who provides character evidence for Mr McAdam and refers to a near identical basis for the revocation of his own firearms licence and opines that it is all due to the ownership of a property by a person incarcerated who has never been at the property when firearms have been present. The author refers to his own licence being reinstated easily with the Firearms Registry and suggests that his situation should be no different to Mr McAdam's but that is not how it has worked out.
A further reference was provided by R Mccully dated 20 June 2022 where the author is aware of Mr McAdam's version of events in respect of the firearms revocation and the incarcerated owner of the rural property where permission to shoot was given. Reference is made to Mr McAdam giving up the genuine reason to shoot vermin and re-joining the SSAA. Reference is also made to alleged malicious reports from Mr McAdam's ex-partner.

Commissioner's evidence

The Commissioner relied upon the material outlined at [19]. Other than in the interlocutory application to tender confidential evidence, the Commissioner did not rely on any witness evidence.
The Commissioner relied on the s 58 material and the supplementary bundle which related predominantly to two matters. One issue concerned reports from Mr McAdam's ex partner, or reports made on her behalf in the context of Family Court matters, and the other matter related to COPS events concerning the serious drug related matters involving Brad Vella for which he was sentenced to imprisonment, including a copy of his criminal history.

Applicant's submissions

Mr McAdam relied on written submissions and his lawyer made oral submissions at the conclusion of the hearing. In oral submissions it was submitted that in relation to failure to note the conviction in the preceding decade in his initial 2014 licence application, Mr McAdam had committed a genuine mistake. Reference was made to the case of Hook v Commissioner of Police [2020] NSWCATAD 250 at [31] where the Tribunal dealt with the issue of the 10 year exclusion issue.
At [31] of Hook the Tribunal observed: 31. He had replied in the negative to the question about an AVO in the past 10 years, but that had been correct. The 10-year period had expired in 2019 and the registry had told him that he would be eligible to apply after that. He had thought that the 10 years ran from when he had turned himself in to the police over the incident with his brother-in-law. He had been told the 10 years expired in September 2019, even though the AVO report gave the date of 13 December 2019 date for the incident. Later at [96] the Tribunal when looking at the circumstances of completing the application form observed: 96. The applicant's explanations are less than impressive and at best suggest a degree of carelessness in completing an official document. The meaning of the questions was clear enough if one took the trouble to read them properly. At the same time, it must be borne in mind that he has at all times worked in rural industry on the land in a variety of capacities that probably have not involved much legal form-filling. In my view his incorrect answers resulted from a combination of carelessness and inexperience and were not knowingly false or misleading within the meaning of s 70, and I so find. 97. The case may be contrasted with Constantin v Commissioner of Police, New South Wales Police Force, [2012] NSWADT 172, [48] - [53], which dealt with the "fit and proper person" requirement, in which a pistol licence refusal was upheld in a case where the applicant had knowingly concealed a Queensland conviction for armed robbery. The offence was a serious one, involving violence, and the intent to deceive was clear. Even so on appeal the Appeal Panel, though dismissing the appeal, expressed misgivings about the result (Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16, [26]):
Mr McAdam submitted that there was no evidence that he had become tainted due to his association with Mr Vella. Mr McAdam's criminal history ended in 2005 and his traffic record / history ended in 2015. Mr McAdam submitted that in those circumstances he had been entrusted with a firearm since 2016 without incident.
Reference was also made in oral submissions to the case of Hardes v Commissioner of Police [2022] NSWCATAD 264 which considered an applicant's domestic situation as relevant to whether the licence should issue and a prior AOABH offence from 2005 which has similarities to the current application. At [74] - [77] of Hardes the Tribunal observed: 74. Even in his evidence in these proceedings, Mr Hardes language was peppered with profanities and, given that he is a physically imposing figure, it is easy to understand how the use of such language in conjunction with a raised voice could make Mr Hardes seem intimidating. I accept that Mr Hardes has sworn and raised his voice at police officers but, on the evidence before me, has not behaved in a threatening manner. This does not excuse Mr Hardes' behaviour towards the police. His verbal interactions with the police have been unsatisfactory and unless he changes his tone when dealing with the authorities, he risks continuing to come to their attention. 75. Nevertheless, following his conviction in 2005 for assault occasioning actual bodily harm, I accept that Mr Hardes has led a generally stable life as the owner of a rural property and a successful mechanical services business. He is in a long-term relationship with Mr Greig who has given evidence about her husband's attributes as a father, husband, worker and member of the local community. The many character references before me support Ms Greig's description of Mr Hardes and describe him as a generous and hard-working man with a good reputation. 76. For the reasons set out above: (1) I cannot be satisfied that Mr Hardes punched the hotel patron in December 2020 and give no weight to this allegation; (2) whilst I accept that a call was made to the police by Mr Hardes' daughter in September 2021, I am satisfied that this was simply because she was upset that her parents were arguing and not because she or anyone else was at risk of harm. I am not satisfied that this incident is an indication that Mr Hardes would pose a risk were he again to be the holder of a firearms licence; (3) I am satisfied that Mr Hardes' behaviour on 2 February 2020 took place in stressful and unusual circumstances. Whilst his behaviour towards the scene of crime officer was inappropriate, I accept that Mr Hardes has insight into this, demonstrated by his apology to her. As stated above, Mr Hardes would benefit from managing his tone of voice when he becomes angry. 77. In summary, on the evidence before me and for the reasons provided, whilst I could not be totally satisfied that Mr Hardes would not pose any risk to public safety if he were given access to a firearm, I am satisfied that there is virtually no risk of it. (see Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28)
In written submissions Mr McAdam addressed the key issue of the association with Mr Vella. Reference was made to the case of Newman v Commissioner of Police NSW Police Force [2018] NSWCATAD 17 where the applicant in those proceedings had renounced his Outlaw Motorcycle Gang (OMCG) membership the day prior to the Tribunal hearing and the decision to revoke was set aside. In the current matter it was submitted that the association with Mr Vella was of a far lesser level than the associations addressed in Newman.
Reference was also made to the case of Hijazi v Commissioner of Police NSW Police [2014] NSWCATAD 148 where the Tribunal considered the applicant's links to a OMCG by association in that his brother was a high-ranking member of the Comancheros OMCG. The Tribunal found that notwithstanding that association the applicant's character was not tainted by the association. The Tribunal observed that in addition: 39. Accepting, as I do, that public safety is a paramount consideration, and acknowledging that holding a firearms licence is a privilege, not a right, I am nevertheless satisfied that Mr Hijazi should have his category A, B and H licences restored. The best indicator of future behaviour is past behaviour and in that regard I am satisfied that Mr Hijazi's continued holding of a firearms licence in those categories does not place public safety at risk.
Further written submissions were made post hearing on the issue of whether Mr McAdam had a genuine reason for a firearms licence. This matter was separate to the public interest concerns about Mr McAdam's association with Mr Vella.
The issue concerned Mr McAdam's cessation of membership with the SSAA and the change of reason to hunting / vermin control. Whilst Mr McAdam had obtained permission to shoot on private land the Commissioner took issue with the fact that no shooting had occurred on that land prior to revocation. Therefore in the absence of the SSAA membership and any private shooting with permission, the genuine reason had not been present for some time and was not present at the time of revocation.
Mr McAdam in further written submission noted that the focus of the regime (from the objects) was public safety, not that there was a genuine reason for shooting. The s 3 reference to genuine reason was submitted as being interpreted practically. It was submitted that a failure to maintain a minimum number of 'attendances for a hunting club does not amount to crossing the threshold to exclude him altogether'.
Reference was made to the case of Aloschi v Commissioner of Police [2021] NSWCATAD 64 where the Tribunal placed this issue in the context of the overall regime. At [92] of Aloschi the Tribunal observed: 92. In any event, cl 32(1)(b) provides that if a member of an approved shooting club (such as the SSAA) has recreational hunting/vermin control as their genuine reason for their licence they are authorised to participate in shooting activities other than those conducted by the hunting club, but only on rural land with the permission, relevantly, of the owner. A licensee must produce evidence of that permission if requested by Police to do: cl 32(3). Curiously, there is no requirement that the number of hunting sessions on rural land must equate with the obligations imposed as to frequency of shooting at a hunting club. Clauses 32 and 108 appear to be inconsistent in that regard.
Mr McAdam submitted consistent with Aloschi that he was deemed compliant and further referred to the finding at [94] of that case: 94. I am not satisfied that the Applicant has contravened a condition of his firearms licence, nor contravened a provision of the Act. Even if I am wrong, I do not consider that the alleged breaches warrant the exercise of the Tribunal's discretion in s 24(2)(b)(ii) and s 24(2)(b)(iii) of the Act against the Applicant.
Mr McAdam submitted that this position supported his submission that the public safety grounds in s 3 should be given greater weight than the genuine reason ground. His submission being that the interpretation of the objects in s 3 of the Firearms Act should weigh towards possession and use and not necessarily factors relating to genuine reasons and attendances, with the intention to 'improve public safety'. (Apps subs 21/9/2022 [3])
Mr McAdam also submitted that the Tribunal standing in the shoes of the Commissioner could impose a special condition consistent with [5] of the Commissioner's supplementary submissions. That refers to the Tribunal if it were minded to grant the licence, imposing a special condition under s 19 of the Firearms Act. Such a condition (it was suggested) would involve not allowing Mr McAdam to possess, store or use a firearm in the presence of, or at any property owned, frequented or resided at by Mr Brad Vella or Ms Louise Donkins.
At [12] of Mr McAdam's submissions the following is sated after raising the issue of the Tribunal having the power to impose conditions: 12. In relation to the Tribunal considering a special condition, we would not impose a condition referred to in the respondent's supplementary submissions at paragraph 5.
When that submission is read in the context of paragraphs [11] and [12] of those submissions, the word 'impose' appears to be a typographical error. In the context of the paragraph and the subject matter being canvassed at that point the submission must mean to say that the applicant would not oppose a condition rather than the applicant would not impose a condition. Mr McAdam in evidence at hearing agreed to accept any conditions imposed on reinstating his licence.

Commissioner's Submissions

The Commissioner made oral submissions at the conclusion of the evidence and three sets of written submissions dated 31 August 2022 (Outline of Submissions), 16 September 2022 (Further Submissions) and 29 September 2022 (Further Submissions in Reply). The Outline of Submissions canvassed the relevant cases dealing with Public Interest.
The Commissioner on the often cited cases of Commissioner of Police v Toleafoa [1999] NSWADTAP 9, Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16 and Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28. Reference was also made to Livadaru v Commissioner of Police [2008] NSWADT 160 where Deputy President Hennessy referred to the public interest at [54]: In considering the public interest, regard must be had to the underlying principle of the Act. ….
The Commissioner also referred to the Appeal Panel case of Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 (Lee), concerning giving proper consideration of all relevant matters when determining matters as to the public interest. At [24] - [25] of Lee the Appeal Panel observed: 24. The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the "overriding need to ensure public safety": Firearms Act s 3(1)(a). Public safety is improved by "imposing strict controls on the possession and use of firearms" and by "promoting the safe and responsible storage and use of firearms": Firearms Act s 3(1)(b). The objects of the Act include "to establish an integrated licensing and registration scheme for all firearms;" "to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;" and "to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms": Firearms Act, s 3(2)(b), (c) and (d). 25. In that statutory context it is uncontentious that a relevant consideration is the applicant's previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant. (Emphasis added)
Post hearing the submissions focused on the apparent breach of the genuine reason compliance requirements concerning Mr McAdam. The Commissioner submitted that whilst it was appropriate that when he ceased to be a member of the SSAA and deleted his target shooting reason, it was then incumbent on Mr McAdam to take up the shooting on private land with permission option. The Commissioner submitted that the grounds given by Mr McAdam for not taking up that option (the four and a half hours travel time) were in existence at the time that the SSAA membership was cancelled by him.
In the Further Submissions in Reply the Commissioner focused on any licence that the Tribunal might grant needing to be subject to special conditions. The Commissioner noted the reference to 'opposing' any special condition set out by the Commissioner in their further submissions. Rather than seeing this langue as an error on Mr McAdam's part, the Commissioner noted that his own evidence was contrary to his submission, noting Mr McAdam's acceptance at hearing of any condition being placed on his licence.
The Commissioner noted that Mr McAdam's revoked firearms licence expired on 14 July 2021 during the internal review assessment period, and he would therefore need to reapply for a licence and have a valid and current genuine purpose for the firearms licence at that time.

Consideration

The decision under review is based upon the notion that Mr McAdam having access to firearms would be contrary to the public interest. In respect of the public interest I note that such matters include public protection, public safety and public confidence in the administration of a licensing system. The Firearms Act 1996 identifies a purpose to deal with public safety at s-3 (1) (a) of the Act.
Section 3 of the Firearms Act 1996 provides: 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 (ii) by promoting the safe and responsible storage and use of firearms, and
It is well understood when reviewing these decisions in the Tribunal that these principles and objects provide clear guidance as to how the provisions under the Act are to be administered as per the reference to Livadaru at [66] above.
The Appeal Panel of the ADT in the case of Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16 discussed how the Tribunal should approach matters of public interest in licensing regime reviews. 28. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 [at 33] the 'public interest' is: . . . 33. The 'public interest' allows, we consider, for 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. In this case the public interest case was a very strong one. The public would, we believe, be quite concerned that a man with a serious history of violence, including violence using weapons, for which he served several years' imprisonment might now be entrusted with a pistol.
Mr McAdam's significant issue concerns his association with Mr Vella. Whilst his traffic record is poor his criminal record is not significant. I note that he is not being adjudged as not being fit and proper to hold the licence, but that having licence would be contrary to the public interest.
Whilst not the main basis for the decision for review before the Tribunal, the notion of 'fit and proper' is referred to in the lead case of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and the various ADT and Tribunal cases that have relied on Bond. The case of Bond provides the general principle that fitness and propriety are not to be narrowly construed or confined and can extend to any aspect of fitness and propriety that is relevant to the public interest.
This position is consistent with the approach that the cases outlined above have set out concerning applying the concepts in a broad manner to the available evidence and having regard to the objects and purpose of the regime. In this instance the regime is designed to protect the public as a primary consideration and for this reason under the Firearm Act access to and use of firearms is not a right but a privilege.
As previously observed the legislation and precedents indicate that the discretion is to be applied consistent with the purpose of the Firearms Act, one of which is to ensure public safety in accordance with s 3 (1) (a) of that Act.
Having reviewed Mr McAdam's evidence I accept the background and circumstances of the association with Mr Vella. I place minimal weight on the adverse matters arising from the Family Court matters as referred to in the s 58 material and supplementary bundle of the Commissioner.
From Mr McAdam's perspective however I also place minimal weight on the personal references referred to in the material filed by him.
I found nothing adverse about his evidence concerning his character and his desire to use firearms in a lawful manner and be fully compliant going forward. In many ways as the concern relates almost solely to the association issue, Mr McAdam's character itself is not significantly under question or examination. The issue in associations is that ones character might be tested by undue influence and ultimately coercion.
Concerning the evidence about the registration with the Sporting Shooters Association Australia (SSAA), I note the letter dated 20 September 2022 received after hearing but prior to the close of submissions. As the matter has been provided to the Commissioner and no objection has been raised, I receive that letter. That Membership has clearly been obtained to provide a genuine reason or purpose for a licence should one be granted. In taking this action and noting the post hearing submission it is clear that the arrangement concerning Ms Donkins remote property was or is unworkable both from a practical perspective and regulatory one bearing in mind the circumstances of the firearms licence revocation by the Commissioner.
I note that the case of Rose v Commissioner of Police (No 2) [2022] NSWCATAD 26 the Tribunal recently observed that the 'burden' that an applicant is required to overcome on this issue is not taken to be insurmountable. At [56] when referring to the case of Martin, the Tribunal observed: 56 It is not the case, as indicated in Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] to [66], that an Applicant is required to discharge an almost impossible burden of proving a near-absolute negative. 57 Rather, as stated in Webb at [32] when considering the question of public safety: "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration".
In balancing those risk matters with the objects and the overall protective purpose of public safety from s 3 of the Firearms Act I am satisfied that on the evidence and material before the Tribunal, it would be in the public interest to reinstate the licence with conditions to ameliorate any risk.
However as the licence has expired it would be necessary for Mr McAdam to reapply for a firearms licence. If the current application related to a refusal the Tribunal could order that a licence issue. However this matter is not a refusal even if the end result is the same. Because the decision under review relates to a revocation it would be necessary to set aside the decision of the Commissioner.
That order whilst symbolic will have no practical result because of the passage of time and subsequent events. Ideally the Commissioner would have the resources to complete Internal Reviews in a more timely manner.
Alternately Regulation amendment could take place and deem that when a licence is revoked or suspended, the licence period stops and if the licence is reinstated the period of time remaining (at the time of suspension or revocation) starts again from the date of any reinstatement. That however would be a matter for the Government, the Commissioner, and her advisers.
The best approach would appear to be that the Tribunal sets aside the decision and then the applicant can apply for a licence and in dealing with any such application the Commissioner might consider granting a licence with conditions.
In my view the conditions outlined at [5] in the Commissioner's further submissions and summarised above at [62] would seem appropriate having regard to the public interest consideration for Mr McAdam to hold a Category AB Firearm's Licence and I so find. If the licence had not subsequently expired I would have set the decision aside and reinstated the licence with such a condition.
As the revoked licence has now lapsed even if the decision was set aside, there is no current licence in place.

Conclusion

Because of the findings that I have made, it is appropriate to set aside the decision of the Commissioner.
As this is an administrative review matter, it therefore follows that the correct and preferable decision is to set aside the decision of the respondent.
I therefore make the following orders:

Orders 1. The decision to revoke the Applicant's Category AB Firearms Licence is set aside.

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: 16 November 2022

At a glance

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Decision date

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Judgment (16 paragraphs)

Parties

Cases Cited (13)

Cited By (1)