The Applicant's understanding of the duties and responsibilities of a licence holder
The Respondent points to a number of comments that the Applicant made in his statement that suggests he does not have an adequate understanding of the duties and responsibilities of a licence holder. The Respondent submitted:
On 8 July 2022, the Applicant served a statement, which noted that:
(a) he has "never been a suspect in any event"; at [5];
(b) he has "no criminal records as disclosed by the police report": at [12];
(c) he formerly held his shooters licence "without any issue and certainly proved by its very existence that [he] was no threat to the community or [himself]": at [15];
(d) in response to his convictions in 2005, he notes that witnessing a man shoot another man outside his home caused him "considerable grief and he "sought ways to manage" his health; at [18(a)];
(e) he could not have taken the firearms which were unlawfully possessed and stored in his residence to the police station "because possessing them was an offence" and he thought "the best answer was to hold onto them until an amnesty was next made available". He also "thought having them in the safe would taint the others": at [18(b)];
(f) during the hearing in 2018 concerning review of the decision to refuse his application for a firearms licence, "there was a lot of discussion between the solicitor for the Respondent and the Member which related to the fact that [the Applicant] had paid for a new gun. The fact that [he] did not have possession of same and could not get possession of same because [he] did not have a licence seems to be of major importance to the member. Not that there is any Law in New South Wales that says you cannot own a weapon and wait for your licence approval to take possession of same as was this case": at [24];
(g) he has been "tested by the State Department of Corrections" and has "been fingerprinted and there is no criminal history anywhere near" him: at [33];
(h) he did not complete the form as provided by Mr Boyd to the Police: at [39(b)].
In relation to the Applicant's failure to surrender prohibited firearms the Respondent referred to section 60 of the Firearms Act which provides:
60 Disposal of firearms by unauthorised persons
(1) A person who comes into possession of a firearm, but is not authorised by or under this Act to possess the firearm, must (except as provided by section 82A) immediately surrender the firearm to a police officer.
Maximum penalty - 50 penalty units or imprisonment for 12 months, or both.
(2) A person does not contravene any other provision of this Act just by surrendering a firearm in accordance with this section.
The Respondent submitted that this provision was in force at the time the Applicant committed the offence for which he was convicted. Accordingly, the Applicant could have lawfully disposed of the firearm in his possession, rather than leaving it out of his safe and at risk to his children.
As noted, in the 2018 hearing the Applicant informed the Tribunal that he had purchased a firearm from a dealer. He stated that he had not taken possession of it, and it remained at the dealership pending authorisation of his licence application. In relation to that issue, the Respondent remains concerned that the Applicant has a selective knowledge of the regulatory framework, and that he does not understand the operation of sections 50 and 51 of the Firearms Act. In his statement the Applicant stated that "not that there is any Law in New South Wales that says you cannot own a weapon and wait for your licence approval to take possession of same as was this case".
The Respondent contends that the Applicant does not have an adequate understanding of the duties and responsibilities of a licence holder and that it is not in the public interest for him to hold a firearms licence.
[2]
The Applicant's case
The Applicant attended the hearing, gave evidence, and was cross-examined. He does not dispute that the convictions referred to above are recorded against him. However, he does not agree that those convictions remain relevant to this matter. As noted, the Applicant has come to the attention of police on a number of occasions. He provided an explanation for each of those incidents and maintained that he has not committed any offences other than those for which he was convicted.
He notes the amount of time that has passed since those convictions and that he has taken steps to improve his understanding of the applicable laws relating to the possession and use of firearms. He provided character references from Ms Alexandra Watt and Mr Nigel Meyers. Both Ms Watt and Mr Meyers clearly hold the Applicant in high regard.
In relation to the P650 Form the Applicant stated:
To prove that I am capable and know the Law I make a booking with Graeme Boyd to do the licence test. I attend his house on 4 June 2019 and we sit down in his kitchen and start to complete the paperwork. In particular he asked me about my history, and I told him I had a prior conviction which is a problem.
He replied with something like "Well you are here now and have paid the money so we may as well complete the test and you will be up to date".
So, we started to fill page 2 of the form P650. I get directed to put a cross down the No column, because this was new application which I did and sign and dated as directed he said "sign this, sign, sign this" which is what I did.
We had a chat and I tell him I am not happy about this, and that item 1 is not correct. We then changed the form and I put a x in the yes box of question 1 and 1 scribble over the No box in question 1 and I initial and date the form.
I then initial and date the correction and Graeme advises that he completes the form later ...
We did the question and answer session and I got all those right and I did not touch a gun or rifle during this process.
I draw reference to the fact that on page one of the photocopy of the disclosed declaration for my test there is a notation "Sent away to Fire Arms Reg by Patrick".
Firstly, I never had possession of this document, secondly I did not send it to the registry. At the time I did the test Mr Boyd said all I do is keep the paperwork in my file. The form itself specifically states that the participant is not allowed to keep the document. I repeat I was never given the document.
I did not send any paperwork to the Firearms Registry all I got was a certificate of completion.
I also state that at no time did I do any of the tasks contained in the last page of the practical component. I did not touch a gun or rifle; I did not lay on the kitchen floor ...
The Applicant annexed to his statement an edited version of the P650 Form which he stated was as he had left it with Mr Boyd. That document shows the first question of the P650 Form with a cross next to the word "Yes" and a marking over a cross next to the word "No" which was apparently done to make it clear that the answer to the first question was intended to be "Yes".
He denied that Mr Boyd ever gave him a copy of the completed P650 Form.
He did not vary this evidence in any material sense under cross-examination.
In relation to the purchase of a firearms without holding a licence he referred to the 2018 hearing and stated:
The Appeal was listed for hearing 14 December 2018. The appeal was dismissed. During that hearing there was a lot of discussion between the solicitor for the Respondent and the Member which related to the fact that I had paid for a new gun. The fact that I did not have possession of same and could not get possession of same because I did not have a licence seemed to be of major importance to the member. Not that there is any Law in New South Wales that says you cannot own a weapon and wait for your licence approval to take possession of same as was this case.
In his evidence before the Tribunal, he expressed a similar view. He said that the offence is in regard to the possession of a firearm, not in owning the firearm.
[3]
Consideration
As noted above, the Respondent contends that the licence should not be granted because of the Applicant's:
1. convictions;
2. provision of false and misleading information on the P650 Form; and
3. insufficient knowledge of the duties and responsibilities of a licence holder.
[4]
The Applicant's Convictions
As noted, the Respondent accepts the Applicant has not been convicted of any prescribed criminal offence since 2005. The offences for which he was convicted occurred in 2004. Clearly, a significant period of time has passed since those events. The Respondent has not presented evidence to show that anything other than minor incidents have occurred since that time. In my view, the fact that the offences have not been repeated is to be acknowledged. The convictions and other issues raised in the confidential material should be given little weight when considered in terms of the risk to the public if the Applicant were given access to firearms.
[5]
The P650 Form
There is conflicting evidence from the Applicant and Mr Boyd in regard to the P650 Form. Mr Boyd's evidence is that the Applicant answered "No" to the first question on the P650 Form. The Applicant's evidence is that he scribbled out the "No" answer and replaced it with a "Yes". The only copy of the P650 Form that was given to the Firearms Registry is the copy that contains the "No" answer. Mr Boyd's evidence is that his usual practice was that if an applicant answered "Yes" to any of the questions, he would not proceed with the course. It is not in dispute that the Applicant completed the course. There is no reasonable explanation for why Mr Boyd would have varied from his usual practice.
I prefer Mr Boyd's evidence on this point. I am satisfied that the Applicant answered "No" to the first question on the P650 Form.
Mr Boyd's evidence is that the Applicant was concerned about how to answer the first question on the P650 Form. It is difficult to understand that concern. It is implausible to suggest that the Applicant would not have been aware that his licence had been revoked in 2006 or that his 2016 licence application was refused. He was undoubtedly aware that the refusal was affirmed on Internal Review and by the Tribunal in the 2018 decision.
Clearly, "Yes" is the only correct answer to the question: "Have you in NSW or elsewhere been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked?"
As noted, in his statement the Applicant said:
"To prove that I am capable and know the Law I make a booking with Graeme Boyd to do the licence test."
The Respondent suggests that a possible explanation for the Applicant answering "No" to the first question on the P650 Form is that he wanted to complete the course. This would have assisted him in being able to demonstrate to the Respondent that he understands the relevant legislation. I accept that Mr Boyd told the Applicant that he would not be undertake the course if he answered "No" to the first question on the P650 Form.
In the circumstances of this matter, the Applicant's failure to provide the correct information is to be given significant weight.
In Howison v Commissioner of Police [2021] NSWCATAD 157 Senior Member Walker stated at paragraph [93]:
While it is true, as the applicant pointed out, that the respondent could in a particular case make a search of official records and discover the true facts relating to an applicant, licensing systems rely on applicants providing information that is true and correct, and the respondent should be entitled to rely on the truth of the information contained in an application without having to check each detail of every application. As Scahill SM stated in Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240, [53], "The system of firearms licensing and the requirement to provide personal information has been developed to ensure that the public is protected as required by the principles and objects set out in section 3 of the Firearms Act". The requirement that such information must be true and correct is made explicit by s 70. The multiple instances of the applicant's supplying false and misleading information on official forms is a substantial factor supporting licence refusal.
I agree with that statement, and it is applicable to the circumstances of this matter.
I agree with the Respondent that is critical to public safety that any person who is authorised to possess firearms is completely honest in their dealings with the Respondent in regard to the licensing process, as this is part of the criteria that would form an opinion that the person is a suitable to be granted a firearms licence. I place substantial weight on this issue.
[6]
Insufficient knowledge of the duties and responsibilities of a licence holder.
The Respondent contends that the Applicant lacks reasonable understanding of the legislation and the obligations imposed on a licence holder. I agree.
It is not in dispute that the Applicant attempted to purchase a firearm from a licensed dealer without holding a firearms licence. The Applicant maintains that there is no prohibition on purchasing a firearm as long as possession is not taken of the firearm.
Section 50 of the Firearms Act provides:
50 Acquisition of firearms
A person must not acquire a firearm unless the person is -
(a) authorised to possess the firearm by a licence or permit, and
(b) except in the case of a licensed firearms dealer, authorised to acquire the firearm by a permit (or the equivalent of any such permit that is issued under the law of another State or Territory in respect of the firearm concerned).
Maximum penalty - imprisonment for 14 years if the firearm concerned is a pistol or prohibited firearm, or imprisonment for 5 years in any other case.
Section 4 of the Firearms Act provides the following definitions:
4 Definitions
(1) In this Act -
acquire means accept or receive supply of.
…
supply means transfer ownership of, whether by sale, gift, barter, exchange or otherwise, and includes the following -
(a) offer for supply, receive for supply, have in possession for supply or expose or exhibit for supply,
(b) conduct negotiations for supply,
(c) consign or deliver for supply,
(d) cause or allow supply.
it follows, contrary to the Applicant's contention, that a person would acquire a firearm if ownership of the firearm is transferred to the person.
In my view, the Applicant's failure to provide true and correct information in his the P650 Form and his lack of understanding of the section 50 provisions indicates that at this time he does not have the requisite knowledge of the firearms legislation and the obligations imposed on a licensee. For this reason, I am not satisfied that there is virtually no risk to the public in the Applicant having access to firearms.
In these circumstances, the correct and preferable decision is to affirm the Respondent's decision.
[7]
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: 06 February 2023
Parties
Applicant/Plaintiff:
O'Connor
Respondent/Defendant:
Commissioner of Police, NSW Police Force
Cases Cited (8)
Introduction
This is an application by Mr O'Connor ("the Applicant") for review of a decision by a delegate of the Commissioner of Police, NSW Police Force ("the Commissioner" or "the Respondent"). The delegate's decision to was to refuse the Applicant's application for a Category AB firearms licence under the Firearms Act 1996 ("the Firearms Act").
The Applicant has previously held a firearms licence. The licence was issued in 2004 but it was revoked in revoked in 2006. This revocation followed convictions relating to drug, firearm, and weapons offences.
The Applicant again applied for a firearms licence in 2016. That application was refused due to public interest concerns. The refusal was affirmed on Internal Review. The Applicant applied to the Tribunal for external review of that refusal and the Tribunal affirmed the decision. The Tribunal's decision is recorded as O'Connor v Commissioner for Police, NSW Police Force [2018] NSWCATAD 290 ("the 2018 decision").
In the 2018 decision, Senior Member Dinnen set out the details of the Applicant's convictions and also a number of other issues that had been brought to the attention of police. The Respondent has again raised those issues for consideration in this matter.
In the present matter, the decision to refuse the Applicant's licence application was affirmed on internal review. The Internal review reasons stated:
I have considered that you have no further adverse information recorded by police since 2009. I also acknowledge the confirmation from your GP that your liver condition is now in well compensated phase. In regard to your mental health, results conducted by a Clinical Psychologist suggested there is no evidence of a foreseeable risk to yourself or others in regard to obtaining a firearms licence. NCAT also found that the medical evidence you provided supported a finding that your medical condition would not impact on your ability to use firearms without risk to the public's safety.
You provided that the crimes you committed in the past were not prescribed, however offences relating to drugs, firearms and weapons offences are prescribed under Clause 5 of the Firearms Regulations 2017. You also believe that you have never put the public in danger, although the circumstances that led to your convictions posed a real and appreciable risk to the safety of the public (including your sons who were minors at the time). You also threatened another person with a knife in 2009. Due to your assertion, it appears that you do not acknowledge the risk that your past offences presented in regard to public safety.
The Decision by NCAT on 14 December 2018 found that your attempts to purchase a firearm from a licensed dealer without holding a firearms licence demonstrated your lack of knowledge of sections 50 and 51 of the Act which regulates the acquisition, supply and obtaining possession of firearms. NCAT found that your desire to obtain a firearm overrode your compliance with firearms legislation, imposed to ensure public safety and protect the public interest.
You provided with your internal review submission a copy of a ['Completion of NSW Firearms (Longarms) Licence Qualification Course' (FLQC) certificate] dated 4 June 2019, which you advised further attests to your commitment of being correct and up to date with current laws and legislation.
To enable participation in the course, all unlicensed person must complete a 'Declaration - Person shooting on an Approved Range or undertaking a Firearms Safety Training Course P650' form.
By answering 'no' to all questions, including the question whether you had 'been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked', allowed you to undertake the training course.
It is critical to public safety that any person who is authorised for firearms is completely honest as this is part of the criteria that would form an opinion that you are a suitable person to be granted a firearms licence. I place substantial weight on the fact that you knowingly provided a false statement on your P650 application in order to obtain approval to complete the necessary training requirement for a firearms licence.
Your actions represent a breach of section 70 of the Act which provides that a person must not, in or in connection with an application under this Act or the regulations, make a statement or provide information that the person knows is false or misleading
It appears that your assurance that you understand the obligations of a licence holder are outweighed by your actions in attempting to obtain a firearms licence. Your previous convictions, your attempt to purchase a firearm prior to obtaining a licence and your provision of a false statement in regard to obtaining a firearms licence, I cannot be satisfied that there is virtually no risk to public safety if you are authorised for firearms. I therefore find that it is not in the public interest for you to have a category AB firearms licence.
In the present matter, the Respondent relies on the same issues that were referred to in the internal review statement of reasons.
Applicable legislation
Section 9 of the ADR Act provides that the Tribunal has jurisdiction in regard to 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. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred by section 75 of the Firearms Act. The Tribunal's jurisdiction includes review of decisions by the Commissioner to refuse an application for a firearms licence.
This application is made under section 75 of the Firearms Act and the ADR Act.
The Firearms Act sets up a scheme to license people to possess and use firearms. One of the underlying principles of the Firearms 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.
The underlying principles of the Firearms Act provided clear guidance as to how it is to be administered generally. Section 3(1) provides:
(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
(c) to facilitate a national approach to the control of firearms.
The Commissioner, and therefore the Tribunal, has discretion in regard to the issues to be decided in this matter. The Firearms Act provides no guidance on how that discretion should be exercised. However, in Minister for Immigration and Citizenship v Li [2013] 297 ALR 225, the majority of the High Court stated at paragraph [67]:
[W]here discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority [[1998] HCA 28] requires nothing less. ...
Section 11(3)(a) of the Firearms Act prescribes that a firearms licence must not be issued unless 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.
Section 11(7) of the Firearms Act provides that the Commissioner may refuse to issue a licence if she considers that issue of the licence would be contrary to the public interest.
The public interest
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 Commission's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.
In Constantin v Commissioner of Police [2013] NSWADTAP 16 at paragraph [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."
In Cusumano v Commissioner of Police [2001] NSWADT 50 at paragraph [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."
Section 3 of the Firearms 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 paragraphs [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."
Ward v Commissioner of Police dealt with the issue of 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 paragraphs [130] - [134].
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 paragraphs [64] - [66].
In determining this issue, 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 at paragraph [32].
The Respondent has lodged a bundle of documents pursuant to section 58 of the ADR Act. Section 58(1)(b) of the ADR Act requires the administrator whose decision is the subject of an application for review to lodge with the Tribunal, within 28 days after receiving notice of the application, a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application to the Tribunal.
The Respondent applied to the Tribunal for an order under section 59(1) of the ADR Act that it not be required to lodge a copy of certain documents ("the Confidential Material") with the Tribunal and for orders under sections 49 and 64 of the Civil and Administrative Tribunal Act 2013 ("the Tribunal Act").
I was satisfied that it was desirable to make an order for a private hearing under section 49(2) of the Tribunal Act to allow consideration of the Confidential Material in order to determine the Respondent's application. This was because of the nature of the Confidential Material. In my view, the circumstances are 'special' or 'out of the ordinary'. I made an order under section 49 of the Tribunal Act. As a result, the hearing was conducted partly open to the public in the presence of the Applicant and partly in the absence of the Applicants and the public ("the Private Hearing").
At the conclusion of the Private Hearing, I made the orders under section 59 of the ADR Act and section 64 of the Tribunal Act in relation to the Confidential Material. As a consequence, the Respondent was not required to lodge some material on which she relies, and the Applicant has not been given a copy of that material.