McCulla v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2023-06-29

The Applicant's evidence

The Applicant's statement provided his responses to the COPS reports relied on by the Respondent: 7. 2/9/2014 -SUTHERLAND LOCAL COURT 1. DESTROY OR DAMAGE PROPERTY. I had arranged by phone with the employee at the business for them to stay open for when I arrive to the business. They did not stay open as arranged and because I did not have paper on me, I wrote a message on the panel that was on the wall. This was wrong of me, and I offered to pay compensation to clean the panel. It was the wrong thing for me to do at the time and I regret writing the words I did on the panel. The Court dismissed the charge against me. 8. 20/8/2014 - SUTHERLAND LOCAL COURT 1. CONTRAVENE PROHIBITION/RESTRICTION IN AVO (DOMESTIC). My ex-girlfriend claimed that I visited her at her business contravening an Apprehended Violence Order. I pleaded not guilty to this as this never occurred and the Court dismissed the charge against me. 9. E 331093992 - 5/6/2014 - My ex-girlfriend and I arranged to meet that evening, and she became very upset and agitated and began yelling and slammed the door hard in my face and damaged the door and the woodwork on the outside of the door frame. The Magistrate agreed with my version and could see the damage in the photos that was shown in court. This case was dismissed. … E 69276930 - 2010112019 - ASSAULT COMMON. I was jogging my usual route along North West Road from Grays Point towards Gymea minding my own business, when along opposite the tennis courts an individual in his utility vehicle performed an illegal U-turn across double yellow lines from heading north and stopped in front of me. He was yelling, incoherently, and very aggressively. As I was running north, he proceeded to assault me. I was in the process of defending myself, and he walked back to his vehicle, yelling that he's going to get his knife and stab me. I took photos of himself and his vehicle. I reported this to the Miranda police station during my running. On the way home, I received a call from Miranda police and who told me that that individual had also made a complaint. The police officer told me that there was nothing that he could do. This was very concerning to me as the individual has a serious mental problem, and he has caused me physical damage as shown to the police officer. This individual has a serious mental issue and his stories should not be believed by the police to make problems for me in this situation. I never did anything to this individual for him to react towards me. All I was doing was going for my usual run. 12.E74271568 - 23/12/2019 - I never approached my ex-girlfriend at her house after the AVO. I never followed this person around Aldi. My ex-girlfriend is very paranoid and jealous. I have no intention to visit or talk to my ex-girlfriend. I am very uncomfortable around the Miranda shopping area because my ex-girlfriend will now say that I am following her or something. 13. E75561506 - SAFE STORAGE INSPECTION - 2/10/2020. I was informed the storage requirements were not suitable and I remedied the situation. 14. E76903174 - 4/10/2020 - MOVE ALONG DIRECTION. Upon running along Farnell Avenue, it was heavy traffic build up, stopped to the entrance to the national park. The two officers in their van were stopped in heavy traffic. They were tired of waiting in traffic and performed an illegal U-turn across the double yellow lines. This was in heavy traffic with no emergency lights and very carelessly without thought for other road users. They performed an illegal three point turn across double yellow lines. They almost caused a collision with a white utility vehicle and other vehicles. I continued my run north towards Sutherland and eventually after approximately 2 km I saw the vehicle stopped at the traffic lights at the corner of Princes Highway. I was across the traffic lane away from the vehicle, and I questioned them why they would make an illegal U-turn and then I proceeded to keep jogging towards Sutherland, and the officer ordered me back. He ordered me to cross the two lines of the road to come to his vehicle. I told him that he is not allowed to make a U-turn back there and I told him that they did not even have emergency lights on and that they were driving into the oncoming traffic. They told me that they are allowed to do that, and I told them they are not. He told me I could go and so I proceeded to keep jogging towards Sutherland. By the time I saw them at the traffic lights when I was stopped there was no traffic on Farnell Avenue. The driver later in the statement claimed that she had her warning lights on which is incorrect. As a result of me making a GIPA application it was shown that this vehicle had not received any call outs to emergency jobs during this shift and in particular at the time I saw the vehicle make the illegal turn in the traffic. 15.E77402344 - 6/1/2021- COVID-19 DIRECTION. I was stopped coming out of the ticket barrier at the train station with no mask as I had just taken it off because I was on the train. The police told me that I should have the mask on. I told them I'm not on the train and they told me that I must where it on City Rail property. I told them I had it on on the train, but I did not realise you have to have it on at the barrier. He said that I could walk away now. As I was walking away I asked them why it is not advertised that masks must be worn on City Rail property. That's when he called me back and asked for my identification and gave me a warning. 16. On 6 May 2022, I was charged by Sutherland Police with resisting a police officer in the execution of their duty, not obeying a direction, riding a bicycle furiously and using lights in a bike to dazzle. I pleaded not guilty to all of these offences and the matter was listed far hearing at the Sutherland Local Court on 30 March 2023. On that date, the Police withdrew all the charges. I made an application for my legal costs to be paid by the Police and on 12 May 2023 the court awarded costs against the Police in the amount of $11,984.25. 17. I have been an active member of the Army Reserve for a period of 21 years as an Armourer and Infantryman and as a junior Non-Commissioned Officer. I have attached and marked with the letter "A" a copy of my service record which is also contained in the section 58 bundle and was attached to my Internal Review submissions. During my Army service I had unfettered access to firearms, other military weapons and ammunition of various calibres. 18. My genuine reason for wanting a firearms licence is for recreational hunting.

Consideration

In relation to both incidents it appears to this Tribunal that the Applicant was justifying his argumentative conduct and obstructive conduct, and verbal aggression, which was clearly apparent from the video footage of the incident taken from the BWC recording, by deflecting to his self-righteous perspective that they had engaged in illegal conduct. On the evidence before me it appears that if the Applicant believes he is in the right - especially where law authority is concerned - he will act aggressively and escalate the situation with police. In his mind, his actions are justified by these views.
The Respondent submitted that the Tribunal should find that: 1. The Applicant 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, pursuant to s 11(3)(a) of the Act; 2. It would be contrary to the public interest for the Applicant to be issued a licence, pursuant to s 11(7) of the Act; and 3. There is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of his intemperate habits or being of unsound mind, pursuant to s 11(4)(c) of the Act.
If the Tribunal is satisfied that the Applicant is not a fit and proper person, or that there was reasonable cause to believe that he may not personally exercise continuous and responsible control over firearms because of 'intemperate habits or being of unsound mind', the Tribunal must affirm the Respondent's decision. Otherwise, whether or not it would be contrary to the public interest for the Applicant to have a firearms licence is a matter for the Tribunal's discretion.

Fit and proper person

The Respondent submitted that the Applicant's history of engaging in aggressive and erratic behaviour, both unprovoked and when frustrated or faced with conflict, his unwillingness to comply with and his resistance to police directions, and his criminal activities, are relevant factors which demonstrate that the Applicant lacks fitness and propriety to hold a firearms licence. Specifically: 80 The 2020 Safe Storage Inspection involved the Applicant rebuking and arguing with police about him obtaining a new firearms safe and re-locating his power tools. He asserted and referred to a fundamental right to hold firearms. 81 The 2020 confrontation with police incident and the 2022 bicycle incident both involve the Applicant failing to comply with police directions aimed at ensuring public safety and behaving in a confrontational and aggressive manner towards police officers. In the first, he refused to comply with an oral move on direction. In the second, he refused to speak to police, refused to comply with instructions when directed and physically resisted police requests and directions. 82 The Applicant's behaviour in these incidents is indicative of the fact that the Applicant has a disregard for directions given by police which are directly aimed at ensuring public safety. They also suggest that the Applicant has an unwavering view of what his rights are and what is within the scope of the law and responds aggressively and with hostility when attempts are made by police to discuss the law and his rights or when they take steps to enforce the law.
The Applicant characterised his conduct towards Police as "calling them out", "expressing his views", "if he disagrees, he will want to discuss it with them", "just because a police officer says something, doesn't make it right". He emphasised that he ultimately complied with police directions after expressing his views in relation to the safe storage requirements, and when given the official 'move-on' direction. Whilst that is true, the Applicant's compliance came only after arguing with police on each occasion, including raising his voice, talking over the police officers, and refusing to answer questions initially. The Applicant is entitled to his opinion, but the manner in which he has expressed it towards police has escalated any 'discussion', to him receiving warnings and arrests. In relation to the 2022 bicycle incident, for example, I agree with the Respondent's submission that the issue would most likely have been resolved without escalation, arrest, charges, court proceedings and costs, if the Applicant had just gotten off his bike and spoken with the police officer in a non-aggressive manner.
The Applicant expressed strongly held views that if he "wasn't doing anything wrong", he did not need to answer police questions or comply with their directions. The role of NSW Police in investigating, charging and prosecuting criminal activity - ie, when people "do something wrong" - is only part of their function. Police officers issue requests and directions to members of the public in other circumstances, particularly when exercising their public safety function. The Applicant's responses and attitude towards Police when they attempt to ask him questions or issue with him directions demonstrate a disregard for the role NSW Police play in managing and ensuring public safety.
The Respondent submitted: The 2020 Safe Storage Inspection involved the Applicant rebuking and arguing with police about him obtaining a new firearms safe and re-locating his power tools, where he erroneously asserted and referred to a fundamental right to hold firearms. The 2020 confrontation with police incident and the 2022 bicycle incident both involved the Applicant failing to comply with police directions aimed at ensuring public safety, and behaving in a confrontational and aggressive manner towards police officers. In the first, he refused to comply with an oral move on direction. In the second, he refused to speak to police, refused to comply with instructions when directed and physically resisted police requests and directions. The Applicant's behaviour in these incidents is indicative of the fact that the Applicant has a disregard for directions given by police which are directly aimed at ensuring public safety. They also suggest that the Applicant has an unwavering view of what his rights are and what is within the scope of the law and responds aggressively and with hostility when attempts are made by police to discuss the law and his rights or when they take steps to enforce the law.
I agree with the Respondent's submissions, based on my review of the evidence and the Applicant's responses to cross examination at the hearing. The Applicant seems unwilling to accept, without argument, that he should comply with a request or direction by the police. This is concerning where those directions or requests are being issued for the purposes of public safety.
Determining an individual's fitness and propriety to hold a firearms licence requires the Tribunal to consider both circumstances against and in favour of the Applicant's knowledge, honesty and ability in the context of firearms possession and use. The Applicant has held various firearms licences for decades. He was an Army reservist for 21 years, working in the armoury, and was therefore familiar with various types of firearms and ammunition. In his words, he had unfettered access to firearms, military weapons and ammunition. Until 2014 he had not been charged with any firearms or violence-related offences, and the domestic violence related charge and ADVO in 2014 were dismissed. I give each of those considerations reasonable weight. The Applicant ultimately complied with police requests and directions in relation to the safe storage inspection and the 2020 confrontation with police incident. I give that some limited weight as well.
On the other hand, his knowledge of firearms legislation was clearly lacking, considering his arguments with police about a NSW bill of rights supporting a fundamental right to bear arms, and his initial failure of the safe storage inspection. Whilst since rectified, it does indicate that the Applicant held firearms licences for a significant period of time with a lack of understanding (or ignorance) of fundamental knowledge about his obligations under the Act and firearms regulations. This diminishes any positive consideration of the Applicant's fitness and propriety in relation to firearms possession and use.
The Applicant denies all conduct attributed to him by police in relation to his ex partner, including the 2014 charge and ADVO, and going to her house again in 2019. He blames his ex-partner for being "paranoid and jealous", and refused to cooperate with Police who were investigating the complaint made by her. Subject to a 28 day suspension / cooling off period in relation to his firearms as a result, he then got into a physical fight on 20 January 2020 with another individual. Although no charges were laid in relation to that incident, and he denies being aggressive towards his ex-partner, the evidence for each of the incidents relied upon by the Respondent supports the Tribunal finding that the Applicant does, in fact, display aggressive behaviour towards people if he believes he has been slighted in some way. This manifests as physical aggression on occasion, in addition to verbal aggression.
[NOT FOR PUBLICATION]
I note that the Applicant's psychologist has provided a risk assessment which assessed the Applicant as having no psychiatric or psychological conditions and denied the Applicant posing a risk to public safety if he were to have possession and use of a firearm - see [74] and [75] above. I give the psychologist's report no weight, on the basis that a) the psychologist was not made available to the Respondent for cross examination, despite their request, and b) more significantly, the report is limited to the psychologist's assessment of the Applicant on one occasion, prior to the 2022 bicycle incidence, and the personal history which is relied on by the psychologist to describe the applicant's character is entirely contrary to the Tribunal's assessment of the Applicant on the basis of the evidence before it, including the Applicant's cross examination.
In the context of firearms licensing, pursuant to s 11(3)(a) of the Act, the Tribunal is required to form a positive state of satisfaction that an 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: Commissioner of Police, New South Wales Police Force v EMB [2021] NSWCATAP 63 at [45]. The material before the Tribunal does not positively satisfy me that this is the case. In those circumstances, the Respondent's decision to refuse the Applicant's firearms licence is the correct and preferable decision.

Continuous and responsible control

The respondent submitted that the Tribunal could not be satisfied that the Applicant would personally exercise continuous and responsible control over his firearms because of his intemperate habits or being of unsound mind. In determining whether the Commissioner has established that the Applicant may not personally exercise continuous and responsible control over firearms, the Tribunal must objectively have "reasonable cause" to come to that conclusion based on established facts: see Meggit at [27].
In Rodgers v Commissioner of Police, New South Wales Police Service [2001] NSWADT 167 the ADT considered s11(4)(c) of the Act and identified that two elements needed to be satisfied, at [20]: First, it must be established that the applicant be of intemperate habits (or unsound mind) and second, the Commissioner, (or the Tribunal in the case of a review decision), must have reasonable cause to believe that because of the applicant's intemperate habits (or unsound mind) she/he may not personally exercise continuous and responsible control over firearms.
The ADT found that "intemperate habits" referred to the consumption of alcohol: It is clear that to fall within s.11(4)(c) it must be demonstrated that there is a disposition or tendency to consume immoderate amounts of alcohol. A single incident of drunkenness does not of itself establish disposition or tendency towards intemperate habits. This provision is clearly concerned within patterns of conduct, not isolated incidents.
Historically, "intemperate habits" referred to drunkenness or the impact of alcoholism on an individual's ability to control themselves. The Cambridge Dictionary defines intemperate as "showing anger or violence that is too extreme and not well controlled", which is perhaps what the Respondent was relying on with respect to the Applicant's conduct and "history of aggressive and erratic behaviour", although this was not expressly stated. In my view, the Applicant's aggression and conduct does not amount to a "habit", even if it were "intemperate".
There is no evidence before the Tribunal of any loss or potential loss of control over firearms by the Applicant. Even if the Applicant's conduct was classified as "intemperate habits" (which I do not agree with), I am not satisfied that the Respondent has objectively demonstrated a reasonable cause to come to the conclusion that the Applicant may not exercise continuous and responsible control over firearms, because of such "intemperate habits".
There is also no evidence before the Tribunal of the Applicant having an "unsound mind", and I am similarly not satisfied that the Respondent has objectively demonstrated a reasonable cause to come to the conclusion that the Applicant may not exercise continuous and responsible control over firearms, because of an "unsound mind".
Accordingly, I do not agree that s 11(4)(c) is relevant to the Applicant and is a basis for refusing his firearms licence application.

Public interest

Even if the Applicant was found to be a fit and proper person within the meaning of the Act, his conduct and history brings into question whether it is in the public interest to allow his application for a firearms licence, in circumstances where he has come into conflict with police over issues of public safety.
As submitted by the Respondent, there is a degree of overlap between the considerations relevant to an assessment of the public interest and those relevant to an assessment of an applicant's fitness and propriety to hold a firearms licence, both of which are to be assessed in the heavily precautionary context of the Act, bearing in mind the overwhelming concern of the Act is to protect public safety. My findings in relation to the issue of the Applicant's fitness and propriety are relevant also to the issue of whether it would be in the public interest for him to hold a firearms licence.
The firearms licensing scheme is strictly regulated to ensure public safety in relation to firearms possession, usage and storage. I agree with the Respondent that I can have no confidence that the Applicant would show any deference to the firearms licensing scheme or efforts made by police to ensure his compliance with that scheme, especially where the Applicant has a preconceived "researched" view about a legal right he may have in relation to firearms. Even putting aside his criminal history, his conduct towards police and aggressive behaviour towards members of the public demonstrate that not only is he not a fit and proper person to hold a firearms licence, but it is not in the public interest for him to do so. In addition to placing public safety at risk, his possession and access to firearms would also diminish public confidence in the licensing system, given his history, aggressive character, and disregard for public safety.
Pursuant to s 11(7) of the Act, I therefore find that it would not be in the public interest for the Applicant to be issued a firearms licence.

Conclusion

Having concluded that the Applicant is not a fit and proper person to hold a firearms licence within the meaning of s 11(3)(a) of the Act, and that it is not in the public interest for him to do so within the meaning of s 11(7) of the Act, the correct and preferable decision is for the Tribunal to affirm the Respondent's decision to refuse the Applicant's firearms licence application, in accordance with these reasons for decision.

Orders 1. The Respondent's decision to refuse the Applicant's firearms licence 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: 16 February 2024

022] NSWCATAD 353 O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 Petas v Commissioner of Police, NSW Police [2013] NSWADT 137 Police v Toleafoa [1999] NSWADTAP 9 Rodgers v Commissioner of Police, New South Wales Police Service [2001] NSWADT 167 Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Vella v Commissioner of Police [2003] NSWADT 91 Ward v Commissioner of Police [2000] NSWADT 28 Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 Wiltshire v Commissioner of Police [2005] NSWADT 75 Texts Cited: None Cited Category: Principal judgment Parties: Anthony Wayne McCulla (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Counsel: S Roden (Respondent)

Legal Principles

The Act establishes a legislative framework to regulate the possession, use, acquisition and supply of firearms. Section 75(1)(a) of the Act confers jurisdiction on the Tribunal to hear and determine the Application, where the Respondent has refused to issue a licence to the Applicant. Section 63 of the ADR Act requires the Tribunal to make the correct and preferable decision on the basis of the evidence available at the time, together with any additional or later material: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77.
Section 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety: (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 … (2) The objects of this Act are as follows: … (b) to establish an integrated licensing and registration scheme for all firearms, (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, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, …
The power to grant an application for a firearms licence under s 11 of the Act is "tightly constrained" and in particular, significant emphasis is placed upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant: Kocic v Commissioner of Police, NSW Police Force (2014) 88 NSWLR 159 at [1]. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences: Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7 at [117].
Section 11 provides general restrictions on the issuing of a firearms licence. It provides, as follows: (1) The Commissioner may issue a licence in respect of an application, or refuse any such application. … (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 (b) … (c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant … (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 - … (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.
In these proceedings the Respondent relied on ss 11(3), 11(4)(c) and 11(7) of the Act to refuse the Applicant's firearms licence application.

Fit and proper person

The High Court dealt with the expression "fit and proper person" in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11; 64 ALJR 462; 21 ALD 1 (Bond). In that matter the Applicant was required to refuse a licence if it was not satisfied that the Applicant or the holder of a licence was a "fit and proper person". Toohey and Gaudron JJ stated (at 380) that: "The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper "cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. "
In the same case, Mason CJ stated at [63] that: "The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration."
In Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at paragraph [9] the High Court defined the concept of fitness and propriety as having three components - "honesty, knowledge and ability."
In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said of the term "fit and proper ": "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 evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as 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."
In FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88, Judicial Member Molony said at [45]: Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake.

Continuous and responsible control

In determining whether the Commissioner has established that the Applicant may not personally exercise continuous and responsible control over firearms, the Tribunal must objectively have "reasonable cause" to come to that conclusion based on established facts: Meggit v Commissioner of Police [2022] NSWCATAD 353 (Meggit) at [27].
The term "reasonable cause to believe" in the context of s 11(4) of the Act was considered by the Tribunal in the matter of LY v Commissioner of Police, NSW Police [2004] NSWADT 115 at paragraphs [41]-[43]. There the Tribunal referred to the decision of Austrac Operations Pty Ltd v New South Wales (2003) FCA 1013 in which Emmett J stated that the words 'reasonable cause to believe' are …not satisfied by mere assertion. The belief requires more than mere suspicion or conjecture. On the other hand, it is not necessary for an applicant to establish even a prima facie case. It is necessary, however, for the applicant to show objectively that there is reasonable cause for the relevant belief.

Public interest

Public safety, including the Applicant's safety, is the primary focus of the public interest issue and of the Act generally: Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134.
Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. The expression "public interest" is not defined in the Act, but has been discussed in a number of Tribunal decisions. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] the Appeal Panel said that: "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."
The public interest encompasses broader considerations beyond public safety. It is an inherently broad concept and is designed to give the broader interests of the community priority over private interests. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], the 'public interest' is: '… an inherently broad concept giving the appellant the ability to have regard to a wide variety 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.'
In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, it was stated at 681: The purpose of the reference to 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 Commissioner's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.
In Director of Public Prosecutions v Smith (1991) 1 VR 63 the Court observed: The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.
In Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43, the ADT Appeal Panel said that the relevant factors to be considered by the Respondent in determining whether to exercise his discretion include matters of general public policy, which were in turn said to be informed by the principles and objectives of the Act. A discretion to make a decision 'in the public interest' is not confined except by the scope and purposes of the legislation itself: DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15], referring to O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson, Gaudron JJ. The discretion must be exercised to promote the objects of the firearms legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23].

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