O'Brien v Commissioner of Police

The issue for determination

1. The issue in the present case is whether the correct and preferable decision is to affirm, vary or set aside the Commissioner's decision and, specifically, whether it is contrary to the public interest for the Applicant to hold a licence under the Act.

The Tribunal's Approach

1. The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all material first considered, together with any further relevant material to either confirm the original decision, vary it, or set it aside and substitute another. The Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law: section 63 of the Administrative Decision Review Act 1997 ("the ADR Act").
2. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the Commissioner's decision is correct.
3. These are not adversarial proceedings in which the Applicant carries an onus of proof. By making the application, the Applicant triggers a process of merits review by the Tribunal. He does not take on the responsibility of having to prove a case, nor does he cause the Commissioner to have to prove a case. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities.
4. Under section 38(2) of the Civil and Administrative Tribunal Act 2013 ("the CAT Act"), the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

Applicable legislation

1. Section 9 of the ADR Act provides that the Tribunal has jurisdiction regarding an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review.
2. The Tribunal has jurisdiction regarding a number of firearms licensing issues under section 75 of the Act, including review of a decision by the Commissioner to refuse an application for a firearms licence. This application is made under section 75 of the Act and the ADR Act.
3. The Act sets up a scheme to license people to possess and use firearms. One of the underlying principles of the Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms. In determining this Application, the objects and intentions of the Act must be readily kept in mind. Section 3(1) of the Act provides: 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 ...
4. The underlying principles of the Act emphasise that that possession and use of firearms is a privilege that is conditional on public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety.
5. As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368 at paragraph [1], the power to grant an application for a firearms licence is tightly constrained. 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. Public safety is to be given paramount consideration.
6. Section 11(7) of the Act provides: 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.

Public interest

1. As noted, the Respondent contends that it is not in the public interest for the Applicant to hold a firearms licence. The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated, in regard to a decision to refuse to issue a security industry licence: "25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal."
2. The "public interest" allows issues going beyond the character of the Applicant to be considered. These may include concerns in relation to public protection, public safety, and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.
3. "Public interest" embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation 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 decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.
4. In considering the public interest, regard must be had to the underlying principle of the Act. The licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. The Tribunal must give proper, genuine, and realistic consideration to each of the relevant matters. A decision maker should not shy away from an exercise of that discretion merely on the grounds that the licensee may suffer hardship and or inconvenience: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at paragraph [22].
5. The public needs to be confident that those who are afforded the privilege of a firearms licence will comply with the legislative requirements.
6. As the Appeal Panel said in Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 at paragraphs [24] to [25]: 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. ...
7. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at paragraph [28] Hennessy DP said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Although Ward was a case on the "fit and proper person" test, the formulation has been held to also apply to the public interest test: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at paragraph [23].
8. 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 considered. Minimal, fanciful, or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110. Risk to the public includes risk to the Applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.

The Respondent's case

1. The Respondent submits that the most significant concern regarding the Applicant holding a firearms licence is his criminal history and lengthy history of traffic offences.
2. It is not in dispute that the Applicant has an extensive history of traffic offences. The Respondent submits that the Applicant persisted with committing offences despite the action taken in relation to his drivers licence. As a result of the infringements, the Applicant's licence has been subject to two demerit point suspensions, four fine default suspensions, two periods where his licence has been subject to good behaviour conditions, a police suspension, and a demerit points refusal.
3. The Respondent notes that the Applicant has not expressed any remorse for his prior conduct, and in his request for an internal review, seeks to minimise the serious of his numerous offences as being an irrelevant matter that should not be taken into consideration in applications for a firearms licence.
4. However, the Respondent notes that the Tribunal has accepted that an applicant's repeated breach of traffic laws and regulations could indicate a disregard for a regulatory scheme which is aimed at ensuring public safety.
5. The Tribunal has accepted that driving a car whilst under the influence of alcohol demonstrates a risk to the public safety: McKenzie v Commissioner of Police, NSW Police Force [2021] NSWCATAD 230 at paragraph [32]. The Respondent contends that the Applicant's prior conduct creates a concern that he may in the future use firearms whilst under the influence of alcohol.
6. The Respondent referred to views expressed in Tannous v Commissioner of Police [2011] NSWADT 116 at paragraphs [32] and [37]. In Tannous v Commissioner of Police the Tribunal held that repeated breaches of traffic laws and regulations can be relevant to a matter concerning a firearms licence. The conduct in relation to traffic offences may indicate an inability to observe legal regulations which are imposed for public safety and indicate a lack of responsibility when it comes to public safety. In Tannous v Commissioner of Police the Tribunal found that it was not in the public interest for that applicant to hold a firearms licence.
7. Similarly, in Himo v Commissioner of Police [2021] NSWCATAD 321 Senior Member Naida Isenberg found at paragraph [102]:, The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety. The Applicant's very poor history of traffic offences shows a disregard for another regulatory scheme which aims, like the firearms legislation, at ensuring public safety ... A disregard for a regulatory scheme aimed at ensuring public safety is a very relevant consideration in determining whether or it is contrary to the public interest for the Applicant to hold a firearms licence. Given the extensive history of traffic infringements and that his last recorded offences were as recent as May and July 2020, I cannot be satisfied that similar conduct will not be repeated, given his long-standing disregard for the traffic regulatory scheme. Similarly, I cannot be satisfied that he may not disregard aspects of the firearms regulatory scheme.
8. In Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145, Senior Member Scahill considered that a history of traffic offences was relevant to the determination whether a firearms licence should be revoked in the interest of public safety. She found at paragraph [76] that "the Applicant's traffic history shows a disregard for public safety and his own safety as he repeated traffic offence." At paragraph [81] the Senior Member concluded: The Tribunal is satisfied, viewing the Applicant's conduct as a whole, that it is not in the public interest for the Applicant to hold a firearms licence. The Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety. ...
9. This approach has been accepted and applied by the Tribunal in a number of other proceedings concerning decisions under the Act: see for example Farrugia v Commissioner of Police, NSW Police Force [2019] NSWCATAD 208 at paragraphs [52] - [56]; Lee v Commissioner of Police, NSW Police Force [2020] NSWCATAD 144 at paragraphs [96] - [98].
10. In Vitaliti v Commissioner of Police, NSW Police Force [2022] NSWCATAD 16 the Tribunal stated at paragraphs [104] - [106]: 104. Mr Vitaliti's driving offending started from when he on L plates and has continued consistently thereafter. The driving offending is serious. Mr Vitaliti showed no insight as to the seriousness of his most recent offending on 14 June 2020. Mr Vitaliti provided no explanation why he was driving more than 30 km/h above speed limit other than he was driving home and was overtaking a car. 105. I find that Mr Vitaliti's disregard for the road rules demonstrate a lack of respect and regard for his own safety and that of the public, which is a relevant consideration in determining whether or not it is in the public interest for Mr Vitaliti to possess and use firearms. 106. A person's traffic history may be a relevant consideration in determining whether a firearm licence should not be issued on the basis of public interest: Masterton v Commissioner of Police [2017] NSWCATAP 206 at [133]: In our view, the possibility that the holder of a licence may not comply with the law is a relevant matter in exercising a discretion to revoke a licence on public interest ground … the test is very wide and in matters of public safety and the possession and use of firearms, it could hardly be suggested to the contrary.
11. The Respondent contends that the overall history of the Applicant's traffic offences, some of which are repeated, shows a disregard for public safety as well as a disregard for the regulatory scheme aimed at ensuring public safety.
12. The Respondent submits that possession of a firearms licence is a privilege, not a right, and the enjoyment of that privilege is conditional upon the overriding need to ensure public safety. Where there is the possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm.

The Applicant's case

1. The Applicant does not agree with the Respondent's contention that it is not in the public interest for him to hold a firearms licence. He seeks the licence for the purpose of eradication of feral animals on a property at Dilkoon in northern New South Wales.
2. The Applicant does not dispute the history of traffic offences and he agrees that the record shows a disrespect for the rules. However, he disagrees with the conclusions that the Respondent has drawn. He disputes that there is a link between a record of behaviour under a drivers licence and behaviour in relation to a firearms licence. He submits that the two licences are separately regulated and that there is no basis to find any connection between the two activities.
3. The Applicant disputes the relevance of the various decisions on which the Respondent relies. He submits that none of those cases is authority for the proposition that a driving record alone, in the absence of all other relevant factors, is a justification for the denial of a firearms licence.
4. He says that the cases relied upon by the Respondent generally concern individuals with a history of violence whose traffic offences are incidental to other breaches of the Act and other criminal behaviour. He submits that these are to be distinguished from his circumstances as there is no evidence of behaviour elsewhere in his life that would suggest that he might misuse firearms.
5. He submits that there is no justification for the view that a breach of one licensing system suggests the likelihood of a breach of another. He does not accept that driving a car whilst under the influence creates a concern that he may use firearms whilst under the influence of alcohol.
6. His evidence is that he has worked under a regime in which there was daily drug and alcohol testing and that he had never had any issues in that regard.
7. Regarding his most recent violations, his evidence is that he was penalised for exceeding the speed limit by more than 10 km/h but not more than 20 km/h. He said that when he had the vehicle's speedometer checked it was found to be inaccurate. He has adjusted his driving behaviour in light of that information, and he has not been penalised since that time.
8. He accepts that he has appeared before a Magistrate on three separate occasions in relation to traffic violations. He stated that when he was disqualified from driving, he had to resign his job, as holding a drivers licence was a necessary qualification for that position. He said that he learned a valuable lesson from the experience and that he did not breach any of the conditions imposed by the Magistrate.
9. The Applicant stated that the drink driving charge was out of character for him, in view of the following:

• he has worked in traffic control/Road construction for 12 years. This industry is highly regulated and requires a high level of compliance with laws, regulations, policies, procedures, and guidelines;
• compliance by individuals within the Construction industry is the subject of ongoing and continual review and audit by regulators and managers and any failure to comply with the WHS legislation, regulations or site-based policies and procedures will result in disciplinary action and termination of any WHS tickets that are held. That could potentially result in the immediate termination of employment;
• he held a Design and Inspect Traffic Control Plans ticket for the period from 2013 to 2018 which is the highest traffic control construction ticket in the NSW construction industry. It expired in 2018 because it was no longer required because he no longer worked in that specific role;
• he has a Working Across Borders National OHS Construction Ticket awarded by Workcover NSW and this ticket is current;
• he has a Safework NSW WHS Traffic Control Work ticket entitling him to implement traffic control plans;
• he has a NSW Transport Roads & Maritime Site Induction card for Mid North Coast Routine Maintenance;
• he has never breached any State or National WHS laws and even though he has worked for 12 years in the Construction industry he has never been involved in a WHS incident;
• he has been drug and alcohol tested 1000s of times. Some sites are tested daily. He has never had any positive readings and was quickly promoted to site supervisor because of his adherence to safety protocols;
• he has always been respectful of the Police and the courts; he has never been violent, or even rude; and
• he has respected court orders, convictions and fines and has paid the price for and complied with all court orders regarding his driving offences.

1. The Applicant relies on several character references. His evidence is that each of the referees is aware of his traffic record, and they nevertheless hold him in high regard.
2. In relation to the contention that his past conduct is a relevant consideration in assessing the likelihood of future conduct, the Applicant submits that more weight should be given to his most recent past conduct.
3. He submits that the decisions on which the Respondent relies can be distinguished on their facts because each matter concerned conduct of the applicant that was in addition to their driving record. He submits that, other than driving related offences, there is no evidence that he has engaged in any conduct which could give rise to any implication that he is not a fit and proper person or to give rise to any public safety concerns.
4. He provided explanations of the circumstances concerning several his driving offence. In relation to the drink driving offence, he stated that the charges had a profound impact upon him. As a result, he took responsibility for his behaviour and committed to turning his life around. He complied with the Magistrates directions and after 12 months was granted a licence with an interlock fitted to his car. After driving for 12 months with no adverse outcomes to the Interlock program he obtained an unrestricted driver's licence.
5. He accepts that he has made errors of judgment in relation to his traffic record but contends that those errors are not evidence of a disregard for regulatory law related to safety. He submits that his exemplary compliance with the WHS legislation shows his respect for compliance with safety related laws and regulations.
6. The Applicant submits that the grant of a licence would not be contrary to the public interest.

Discussion

1. This is a matter that primarily involves consideration of the public interest. I am not aware that there is any suggestion that the Applicant is not a fit and proper person to hold a firearms licence. Nevertheless, I note that he has provided several character references which speak positively about him as an individual. I am satisfied that the Applicant is a fit and proper person to hold a firearms licence.
2. The issue for determination is whether it would be contrary to the public interest to grant the licence. This question arises because of the Applicant's traffic record. The extent of the record is not in dispute and the Applicant concedes that his record is bad.
3. The Commissioner is concerned that this history demonstrates a disregard for public safety and his own safety as well as a disregard for a regulatory scheme aimed at ensuring public safety. I share that concern.
4. I have referred to a number of decisions of this Tribunal which have dealt with similar issues. I agree with the Applicant that none of those cases have facts that are identical to this matter. However, it has been widely accepted that while it is impossible to say with certainty how any individual will behave in the future, prior conduct can provide some guidance. In that regard I do not agree with the Applicant's submission that it is unfair to compare a lack of compliance with traffic laws and the likelihood that he might adopt a similar view towards compliance with firearm legislation.
5. Nevertheless, I agree with the Applicant that his most recent past conduct should be given greater weight than earlier behaviour if it suggests a change of attitude. I note the Applicant's evidence of his strict compliance with legislation applicable to his work as well as the regulations and site-based policies and procedures. This provides a clear contrast to the extensive history of traffic infringements.
6. The immediate difficulty that this history of traffic infringements poses is that it has continued over a very long period. The offences commenced while he was still on his Learners Permit in 1994 and the most recent infringements were in May 2021.
7. The fact that no infringements have been recorded for the past year may reflect the Applicant's evidence that he learned a valuable lesson, took responsibility for his behaviour, and committed to turning his life around.
8. I also note the Applicant's evidence that he has a stable family environment and that he has been a model employee who has always been in full employment. In the circumstances there are good reasons to be hopeful that he would adopt a responsible attitude to firearms if he were to be given the opportunity of holding a licence.
9. Nevertheless, I remain concerned that the progress he has made has been over a relatively short period.
10. In my view, the Applicant should not be allowed to hold a licence until he is able to satisfy the Commissioner that he has sufficient knowledge and understanding of his obligations regarding becoming a safe, responsible firearms user.
11. In my view, he would benefit from completing a program designed to increase awareness of the consequences of dangerous driving practices and reduce the likelihood of re-offending, For example, a Traffic Offender Intervention Program. The information and skills necessary to develop positive attitudes towards driving may assist in developing positive attitudes towards becoming a safe, responsible firearms user.
12. A comprehensive firearms safety course may achieve a similar outcome.
13. I have no concerns about the Applicant's fitness and propriety and if he is able to satisfy the Commissioner that he has completed a firearms safety course and if he reapplies for the licence, the Commissioner may adopt a different view to that taken in regard to this matter.
14. If he had completed a course that would provide him with the information and skills necessary to develop positive attitudes towards becoming a safe, responsible firearms user I might have formed a different view. However, at this time, on the material that is before me, I am not satisfied that it is in the public interest for the Applicant to hold a licence under the Act.
15. That being the case, the correct and preferable decision is to affirm the decision to refuse the licence application.

Order 1. The decision under review is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 August 2022