McKenzie v Commissioner of Police, NSW Police Force [2021] NSWCATAD 230 | Case summary

NCAT Administrative and Equal Opportunity|2021-06-02

Background

Christopher McKenzie (the Applicant) was authorised to possess and use firearms under the Firearms Act 1996 (the Act) for a number of years. Since 2011 he relied on his membership with the Sporting Shooters Association of Australia (SSAA) as evidence for his genuine reason to hold the licence, being recreational hunting. He was most recently issued with a firearms licence on 20 April 2017, which was due to expire on 8 June 2022. On his most recent application for his firearms licence, the Applicant identified his membership of the SSAA as the only ground to support his genuine reason of recreational hunting/vermin control.
On 9 September 2019, the delegate of the Commissioner of Police, NSW Police Force (the Respondent) made a decision to suspend the Applicant's firearms licence on the basis that he was subject to a prescribed offence relating to prohibited drugs, and that it was not in the public interest for him to possess firearms. On 1 October 2019, Police attended the Applicant's address and explained that his firearms licence had been suspended and that his licence and firearms would be seized. Two firearms were seized, and Police noted that the Applicant did not have any ammunition.
On 21 October 2019, the Applicant pleaded guilty to the offence of 'possess prohibited drug' at Katoomba Local Court and was made subject to a 12 month conditional release order concluding on 20 October 2020.
On 30 August 2020, the Respondent revoked the Applicant's firearms licence. The Applicant sought internal review of the revocation decision and on 27 October 2020 the Respondent affirmed the decision to revoke the Applicant's firearms licence (the Reviewable Decision). The Reviewable Decision relied on s 24(2)(d) of the Act, and clauses 20, 31, 108(1) and 108(2) of the Firearms Regulations 2017 (the Regulations).
By application dated 11 December 2020, the Applicant sought review of the Reviewable Decision in this Tribunal.

Legal Principles

The Tribunal has jurisdiction to exercise any functions conferred or imposed on it pursuant to s 30 of the Civil and Administrative Tribunal Act 2013. Section 75(1)(c) of the Act confers jurisdiction on the Tribunal to hear and determine this application. Section 63 of the Administrative Decisions Review Act 1997 (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. The Tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
The standard of proof that applies in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. There is, however, no burden or onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34].
The Act establishes a legislative framework to regulate the possession, use, acquisition and supply of firearms. Section 3 of the Act states: (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, [117].
Section 19 of the Act provides that a licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose and to such other conditions as may be prescribed by the regulations.
Section 24(2) of the Act states: 24 REVOCATION OF LICENCE … (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 Regulations provides: Clause 20: 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.
A discussion of relevant case law with respect to public interest was set out by the Tribunal in the case of Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 at paragraph [69]- [74]. The concept of "public interest" was discussed by the Administrative Decisions Tribunal (NSW) ('the ADT') in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 ('Toleafoa') as follows: The "public interest" is an inherently broad concept giving an appellant [the Respondent] 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 in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operated 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 circumstances in Toleafoa related to the revocation of a security licence. In Ward v Commissioner of Police [2000] NSWADT 28 ('Ward'), the ADT confirmed that these comments applied equally to consideration of the fitness and propriety of an individual to hold a firearms licence under the Act, and stated at paragraphs [27 - 28]: 27 ...The question for the Tribunal is whether, based on all the evidence, it would have confidence that [the Applicant] would not pose a risk to public safety if he had access to firearms. 28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.
In Cusumano v Commissioner of Police [2001] NSWADT 50 ('Cusumano'), the ADT stated: There is no guidance in the legislation in relation to how these directions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.
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, namely, to confirm firearm possession and use as a privilege conditional upon the overriding need to ensure public safety.
Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24]. In the context of the Act, where there is, or has been, the possibility of a threat to public safety arising out of an individual's use of firearms or possession of a firearms licence, then the public's right to safety must outweigh the individual's privilege to use and possess firearms: Aubrey v The Commissioner of Police [2005] NSWADT 266 [at 21].
The Appeal Panel in Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 at [33] found that the term 'public interest' included matters beyond the character of the Applicant and included public protection, public safety, and public confidence in the administration of the licensing system.
The public interest requires that all licensees be aware of and comply with the legislative requirements: Vella v Commissioner of Police [2003] NSWADT 91 at [41].
In Todorovski v Commissioner of Police [2019] NSWADT 192 at [130], the Tribunal found that disregarding the requirement to support a genuine reason was not in the public interest, particularly for a number of years. It was 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 to continue to hold the licence.
The Tribunal is entitled to take into account criminal conduct, whether or not that conduct has resulted in an individual being charged or convicted of criminal offences, or whether the particular offences charged have not been proven or have been dismissed: Joseph v Commissioner of Police, NSW Police Force [2017] NSWCAT 31 at [62] to [64]. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70 at [30]. The Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. When considering future risk, the Tribunal must consider the past conduct of the Applicant as a significant guide: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141].
Clause 31 of the Regulations requires that in circumstances such as these where an individual's sole ground for establishing a genuine reason is membership of a club: A licence that is issued for the genuine reason of recreational hunting/vermin control is subject to the condition that the licensee must comply with any applicable requirements of Part 10 (Participation requirements for club members).
Part 10 of the Regulations at cl 108 requires the Applicant in these proceedings to participate in "no less than 2 hunting club events" in each compliance period: (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.

Consideration

The offence of 'Possess prohibited drug' is a prescribed offence under cl 5(1)(b) of the Regulations which would automatically disqualify the Applicant from holding a firearms licence pursuant to s11(5)(b) of the Act if he had been convicted, and the conviction would subject him to a 10 year mandatory refusal period. This is a relevant consideration in circumstances where the Tribunal is required to consider the Applicant's conduct, rather than just the conviction, as discussed above at [21].
The Applicant gave extensive evidence at the hearing. He stated that he had worked for 19.5 years in the fire brigade and would still be doing so if his blood pressure was ok. He claimed several times that he "wouldn't hurt anybody". He stated that he didn't keep any bullets because there was "no point", and that "I don't need a gun for any reason". He said that the "guns don't live with me, they never have. I'd go to Mum and Dad's place". He explained that it cost $130 for him to purchase one packet of bullets to shoot at the range, so that the last time he had gone shooting was the "last time I had a proper job with proper money." He stated that he wanted to get a job with Corrective Services and had applied twice to them, which is why the "Judge gave me a second chance" and had not placed a conviction on his records, so that he "could apply for those jobs". He referred to the conduct subject of the offence as a "stupid act".
When questioned by the Tribunal, as to why he wanted a firearms licence, the Applicant explained in words to the effect of: I want to be able to do those things. I've been shooting rifles since I was four or five years old with Dad, before the laws changed with the Port Arthur [Massacre]. If I had twenty dollars I would go buy two packets for the air rifle and shoot cans, shoot pegs on the clothes line. It's something I enjoy doing. The last five or six years I haven't been able to do it because it costs too much. I'd love to take the kids camping, hunting, go to Cape York, go hunting, driving. I've never really been a hunter. They [the kids] would have to get a licence as well. My son is fifteen and he can get a minor licence… I'd like to be able to get my kid a licence.
In cross examination the Applicant admitted to using prohibited drugs in 2018 which was the subject of a police report about him driving under the influence to/from a McDonald's carpark, but claimed he had "smoked it in the McDonald's carpark. I thought my driving was OK. I wasn't going to drive for a couple hours… yes I was planning on driving but not for a while". He also admitted to being a monthly user of cannabis in 2015, which was the subject of another police report, and agreed that he had told the Police then that he "wouldn't use it anymore". He agreed he had been using cannabis until at least 2019.
The Applicant was questioned about whether he had used the drug 'ice' and vehemently denied ever doing so, stating that "there is no way on earth I would use that drug", and that he had "left friends behind" because of their drug use.
NOT FOR PUBLICATION
The Applicant gave further evidence in closing submissions words to the effect of: I almost lost my kids. My kids are my life. They're the only things that I've got to keep going. I've left friends behind because of drugs and alcohol, I'm not going back to that life. I really want to get that job. Otherwise if I keep going the way I'm going, I'll go to gaol, or I'll die. I haven't done the requirements for three shoots a year because of money reasons. Now I can, or I could find a cheaper way of doing it because $130 for half an hour of fun is ridiculous. I never threatened anyone with my rifle. I never did anything stupid like that. Never want to go to gaol. Never going to do drugs anymore. I want to live life, buy a house, buy property, get a Corrective Services job at Bathurst or Wellington. I'm in a better spot now. I've come to terms with my divorce. I have never done meth. I want you to give me another chance.
The Applicant pleaded guilty to the offence of "possess prohibited drug" and the history provided by the Respondent of his previous interactions with police indicate to me that the conduct subject to this offence was not an isolated or uncharacteristic incident. I do not accept the Applicant's evidence that he had not driven while under the influence of drugs in relation to the incident of 2018, on the basis that his evidence at hearing was vague, self-serving, and contradictory, including in relation to the facts underlying the criminal charges.
Whilst I accept that the Applicant has not handled or used a firearm while under the influence of drugs or alcohol, there being no evidence of this ever occurring, it is concerning that he has driven a car while under the influence. Handling or using a firearm while under the influence and driving while under the influence both pose an obvious and significant risk to public safety and the Applicant's conduct subject to the 2018 charge is a relevant consideration in that respect.
I accept the Applicant's evidence that he is motivated and trying to improve his life. He gave contradictory evidence in relation to whether he had used prohibited drugs after 2019, but I am willing to accept that he has not done so, in circumstances where there is no further evidence from the Respondent to suggest otherwise. I find it unlikely on the basis of the evidence before me that he would handle or use firearms under the influence in the future, and it is therefore unlikely that the Applicant does or would pose a risk to public safety by retaining a firearms licence.
However, the undisputed evidence demonstrates that the Applicant has completely failed to comply with the participation requirements under Part 10 of the Regulations, specifically cl 108(1), which requires that he must attend at least two hunting events in each compliance period. In fact, the Applicant has failed to comply with such requirements since the 2014/2015 compliance period. I accept the Respondent's submission that the Applicant would have been aware at the time he re-applied for a firearms licence in 2017 that he may not have been able to comply with the participation requirements. As discussed above at [20], disregarding the requirement to support a genuine reason, particularly for a number of years, is not in the public interest. Allowing an individual who did not comply with the requirements or conditions of their licence to continue being granted a licence would diminish public confidence in the licensing regime and could additionally create a risk to public safety in circumstances where those requirements include, for example, safety training.
Accordingly I find that it is not in the public interest for the Applicant to continue to hold a firearms licence. The correct and preferable decision is to affirm the Respondent's decision to revoke the Applicant's licence.

Order 1. The respondent's decision 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: 09 August 2021

McKenzie v Commissioner of Police, NSW Police Force

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