McLennan v Commissioner of Police

The application for review

1. The Tribunal has administrative review jurisdiction over a decision, or class of decisions, of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review: s 9(1) Administrative Decisions Review Act 1997 (ADR Act).
2. Section 75 of the Firearms Act confers jurisdiction on the Tribunal to review certain decisions including a decision to refuse a firearms licence. Mr McLennan applied to the Tribunal for review on 4 May 2021.
3. Mr McLennan states that there is no risk to the public in him possessing a firearms licence and that the decision under review should be set aside. He notes that the offences are primarily for minor drug possession charges and states that many were committed when he was young. Mr McLennan said that the offences involve the personal use of cannabis and that none involve violence or were committed against a member of the public. He states that he is remorseful in relation to his past offending and that he has worked hard at changing his poor habits of the past. At the hearing Mr McLennan said that he does not see how recreational use of marijuana is against public safety. In relation to the offence of driving unlicensed, Mr McLennan stated that this was due to an oversight on his part.
4. Mr McLennan said that he is a high school teacher and under his current contract works full-time. He is the Year Adviser for year 7 and VET co-ordinator for six courses. He is also involved in soccer coaching, is a cricket player and AFL player and president of a local cricket club. Mr McLennan obtained his teacher qualifications in Queensland and worked there after he graduated. He moved back to Grafton in 2016 to be close to his parents as his father was ill. He said that he and Ms Lawson married in 2018 and they now have two children, one of whom is a newborn.
5. Mr McLennan said that the licence is important for his livelihood and to put down animals that are injured or to shoot vermin. When questioned at the hearing he confirmed that his wife owns the property and conducts the livestock business and that he is employed as a manager. He also said that he and his wife are separated at the present time and he no longer lives on the property, although he continues with his role as manager and goes to the property daily to work. This is in addition to his work as a full-time teacher.
6. When asked if his wife continues to support his application for the licence, he said that he was unaware of her current position and hasn't spoken with her about the licence since he lodged the internal review application in May 2020.
7. At the hearing Mr McLennan stated that he has not used marijuana or any other prohibited drug since 2016. When asked if he had sought professional help with respect to drug use he said that he has sought counselling but not specifically for drugs and that the only program he has participated in was at the direction of a Magistrate.
8. In support of his application for review Mr Lawrence provided an unsigned and undated statement from Taran St Lawrence who states that he or she has known Mr McLennan for 30 years and attests to his good moral standing. The statement does not indicate an awareness of Mr McLennan's past offending.
9. The Commissioner argues that it is not in the public interest for Mr McLennan to hold a firearms licence for the following reasons: 1. he has a criminal history and several convictions in both NSW and Queensland for a range of offences, particularly drug offences; 2. his repeated breach of traffic laws and regulations indicates a disregard for a regulatory scheme aimed at ensuring public safety; and 3. his non-compliance with the criminal and traffic laws indicate that he is likely not to comply with the requirements of the Firearms Act.
10. The Commissioner acknowledged that Mr McLennan has not faced any criminal charges in relation to drugs since 2016 but states that, in the absence of any evidence from Mr McLennan that he has sought rehabilitation, it cannot be assumed that the risk of him continuing to use drugs has abated.
11. The Commissioner also stated that, while Mr McLennan has stated that he requires the licence for primary production purposes, the business was operated by Ms Lawson prior to their marriage without him having a licence. In addition there is no evidence that since his application for licence has been refused that the business has been impacted in any way. The Commissioner stated that, presumably, Ms Lawson has other means of controlling vermin and dealing with injured animals. Mr McLennan, without detailing current arrangements, stated that the Commissioner was making a "massive presumption" in that regard.
12. At the hearing, the respondent also provided some further information relating to Mr McLennan and sought confidentiality orders in relation to that information. The Commissioner claimed that the information would reveal a source of confidential information supplied to the Commissioner. After hearing from the Commissioner, I made the orders sought and part of the hearing proceeded in the absence of Mr McLennan.
13. [NOT FOR PUBLICATION]
14. [NOT FOR PUBLICATION]
15. [NOT FOR PUBLICATION]
16. [NOT FOR PUBLICATION]

The relevant law

1. Two of the underlying principles of the Firearms Act are: 1. to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and 2. to improve public safety: 1. by imposing strict controls on the possession and use of firearms, and 2. by promoting the safe and responsible storage and use of firearms.
2. Additionally, the Firearms Act's objects include:

• to provide strict requirements that must be satisfied in relation to licensing of firearms, and the acquisition and supply of firearms, and
• to ensure that firearms are stored and conveyed in a safe and secure manner.

1. The Firearms Act also provides for the mandatory refusal of a firearms licence if an applicant has been convicted of certain offences as well as discretionary grounds for refusing a firearms licence. The Commissioner is also given a broad power to revoke licences. It has been said that in considering matters under the Act public safety is to be given paramount consideration (Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218).

The public interest

1. Sub-section 11(7) of the Firearms Act provides that, despite any other provision of s 11, the Commissioner may refuse to issue a license if the Commissioner considers that issue of the licence would be contrary to the public interest.
2. What is meant by the term "the public interest" has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court 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."
3. 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."
4. In Cusumano v Commissioner of Police [2001] NSWADT 50 at [23] Deputy President Hennessy stated: "There is no guidance in the legislation in relation to how these discretions [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."
5. Importantly, s 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community's interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at [27-28] Deputy President Hennessy said that in terms of public safety: "27…The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward 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."
6. That case dealt with whether the applicant was a "fit and proper person" to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at [130] - [134].
7. The question of risk is not, however, to be approached in an absolute or mechanistic way, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [64] - [66]; Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315 at [62]-[64]. The question is whether there is in all the circumstances a real and appreciable risk to the public: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 at [74]; Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124 at [58].
8. It has also been stated that the public interest requires that all licensees be aware of, and comply with, the legislative requirements: Cook v Commissioner of Police [2003] NSWADT 30 at [34]. Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police [2005] NSWADT 75 at [25].

Consideration

1. There is no question that Mr McLennan has a criminal history and a rather lengthy traffic offence history. Much of his criminal offending relates to use of cannabis. I note he has not been convicted of any criminal offences since 2016. At the hearing Mr McLennan sought to downplay his offending noting that it concerned his personal use of drugs and stating that he does not see recreational use of marijuana as involving issues of public safety. In his submissions he also notes that none of the offences involve any of the mandatory refusal provisions of the Firearms Act and indicates that his offending has been at the lower end of the offence provisions, as can be seen from the fines imposed and that on occasion no conviction was recorded.
2. In Tannous v Commissioner of Police [2011] NSWADT 116 the Tribunal held that even if drug-related charges are dealt with relatively leniently by the court, and therefore do not attract mandatory provisions of the Firearms Act, it is clear that the Tribunal must still consider the offences seriously and carefully in the context of a firearms licence. The Tribunal noted that the question is whether viewing the applicant's conduct as a whole, the Tribunal is concerned that the applicant's breaches of the law indicate a lack of regard for the law and public safety. The Tribunal went on to state at [33] that if it was so satisfied of such a lack of regard for the law and public safety, then it would conclude that it was not in the public interest for the applicant to hold a firearms licence.
3. [NOT FOR PUBLICATION]
4. Mr McLennan's traffic offence history is also a matter of concern and involves offences going back to 2002. Of significance is that he has been disqualified from driving in Queensland and has been suspended from driving on three occasions. His traffic infringements have included multiple instances of speeding and two incidents of driving while unlicensed. Mr McLennan indicated that the fact that he drove while unlicensed was due to an administrative error or oversight on his part. It is, however, a matter for every driver to ensure that they are appropriately licensed at all times.
5. The Tribunal has recognised that traffic laws and regulations are designed to ensure public safety and that repeated breaches of the rules indicate a disregard for public safety as well as the safety of the person concerned (Tannous at [32] and [37]; Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145 at [81]).
6. As noted above, Mr McLennan has provided an unsigned and undated character reference attesting to his good character. There is no indication that the writer is aware of the reasons for the refusal of the licence or indeed of Mr McLennan's criminal history. In those circumstances, I give the reference very little weight.
7. Mr McLennan states that he is remorseful and has worked hard to change his habits of the past. He has not provided any independent evidence which could reinforce his statements that he no longer takes drugs. Indeed, it does not appear that, other than a court ordered counselling session, he has taken any positive action with respect to his addiction. He also expressed an attitude at the hearing which sought to minimise his past offending which does not indicate that he is truly remorseful or understands the seriousness of his offending.
8. The evidence before me, including that provided confidentially, indicates that, when looking at Mr McLennan's conduct as a whole, he has demonstrated a disregard for the law and for a regulatory scheme which is designed to protect public safety. I am not satisfied that Mr McLennan appreciates that his past history is a serious matter. That fact combined with the lack of evidence of any positive steps he has taken to distance himself from his past offending and to ensure that he does not offend in the future, does not inspire confidence that he would comply with the strict regulatory requirements placed on a holder of a firearms licence. I therefore cannot be satisfied Mr McLennan would not pose a risk to public safety if he had accessed firearms. It is therefore not in the public interest for Mr McLennan to hold a firearms licence at the present time.
9. It follows that the correct and preferable decision is to affirm the decision of the Commissioner to refuse Mr McLennan' firearms licence. It may well be that in future, absent any further incidents and if he is able to demonstrate that he has distanced himself from his past, Mr McLennan will be able to establish that the licence should be granted.

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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: 11 August 2021