This is an application for review of a decision by a delegate of the Commissioner of Police ("the Respondent" or "the Commissioner") under the Firearms Act 1996 ("the Act"). The Respondent's decision was to revoke a Category AB Firearms Licence held by Sam Prevetera ("the Applicant").
The revocation was based on the Respondent's view that the Applicant had failed to comply with the condition of the Act that he have a genuine reason for requiring a licence, and meeting the conditions attaching to the genuine reason, and that it was not in the public interest for him to continue to hold the licence.
The Respondent's decision was affirmed on internal review and the Applicant has applied to the Tribunal for external review.
[2]
Applicable legislation
Section 9 of the Administrative Decisions Review Act 1997 ("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 on the Tribunal by section 75 of the Act. The Tribunal's jurisdiction includes review of decisions by the Commissioner of Police to revoke a firearms licence.
This application is made under section 75 of the Act and the ADR Act.
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.
The underlying principles of the Act provided clear guidance as to how it is to be administered generally. The principles and objects of the Act confirm that possession and use of firearms is a privilege that is conditional on public safety. 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.
Section 24(2)(a) of the Act provides that a firearms licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind.
Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if the Commissioner considers that the issue of a licence would be contrary to the public interest.
Section 24(2)(d) of the Act provides that a licence may also be revoked for any other reason prescribed by the regulations.
Section 12 of the Act provides:
12 Genuine reasons for having a licence
(1) The Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm.
...
(4) Subject to this Act, an applicant for a licence has a genuine reason for possessing or using a firearm if the applicant -
(a) states that he or she intends to possess or use the firearm for any one or more of the reasons set out in the Table to this section, and
(b) is able to produce evidence to the Commissioner that he or she satisfies the requirements specified in respect of any such reason.
Table
Reason: sport/target shooting
The applicant must be a current member of a shooting club approved by the Commissioner in accordance with the regulations, and which conducts competitions or activities requiring the use of the firearm for which the licence is sought.
Reason: recreational hunting/vermin control
The applicant must -
(a) be the owner or occupier of rural land, or
(b) produce proof of permission given by the owner or occupier of rural land, or by an officer or employee of the National Parks and Wildlife Service, the Department of Industry or other authority prescribed by the regulations, to shoot on rural land, or
(b1) produce proof of permission given by a land manager within the meaning of the Forestry Act 2012 to shoot on land in respect of which the land manager is authorised to exercise functions as land manager under that Act, or
(c) be a current member of a hunting club approved by the Commissioner in accordance with the regulations.
The regulations may provide for the manner and form in which any such permission is to be given, the extent to which it operates, and how it is to be produced as evidence by the applicant. A person does not, so long as the person is authorised to give permission to shoot on land referred to in paragraph (b) or (b1), incur any liability merely because the person gives the applicant permission to shoot on the land concerned.
...
Section 19(1) of the Act provides:
19 Conditions of licence
(1) A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.
...
Clause 20 of the Firearms Regulation 2017 ("the Regulations") provides that 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.
Clause 29 of the Regulations provides that:
29 Sport/target shooting
A licence that is issued for the genuine reason of sport/target shooting Is subject to the following conditions (in addition to any other conditions to which the licence is subject) -
(a) the licensee must comply with any applicable requirements of Part 10 (Participation requirements for club members),
(b) the licence does not authorise the use of a firearm except at a shooting range approved under Part 8 or under the authority conferred by clause 33 (Licences and permits extend to authorise sighting in, patterning and related activities).
Clauses 105 and 017 in Part 10 of the Regulations provide that:
Part 10 Participation requirements for club members
105 Definitions
In this Part -
approved club for a particular category of licence means an approved shooting club (including an approved pistol club), approved hunting club or approved collectors' society or club of which the holder of a licence of that category is required to be a member under this Part.
competitive shooting match means a shooting activity in which scores are kept and results recorded.
compliance period for an approved club means each consecutive 12-month period that starts on the day of the year that the club has determined to be the start of its compliance period for the purposes of participation by club members.
participation in a shooting activity includes, in the case of a competitive shooting match, officiating at such a match.
shooting activity of an approved club means the following -
(a) a shooting activity that is conducted by the club at the club's shooting range, including a competitive shooting match, shooting training and target practice at the club's shooting range,
(b) firearms safety training conducted by the club at the club's shooting range,
(c) a competitive shooting match held at a shooting range other than the club's shooting range where the match is endorsed by the club (including such a match that is conducted outside NSW or outside Australia).
...
107 Participation requirements for sport/target shooters (other than pistol shooters)
The holder of a licence issued for the genuine reason of sport/target shooting (not being a category H licence) must be a member of at least one approved shooting club (other than a pistol club) and must, during each compliance period for such a club of which the person is a member, participate in not less than 4 shooting activities of an approved shooting club (other than a pistol club) whether or not of a club of which the person is a member.
Clause 111 of the Regulations concerns membership of more than one approved club. It provides:
111 Membership of more than one approved club
(1) If the holder of a licence who is required under this Part to be a member of an approved club of a particular category is a member of more than one approved club of that category, the following provisions apply -
(a) the licensee must nominate a principal club of that category of which the licensee is a member and with which the licensee will mainly be involved,
(b) the licensee must notify the Commissioner of the nominated principal club in writing or in such other manner as may be approved,
(c) if the licensee participates in any compliance activity of a club of that category that is not the licensee's nominated principal club of that category - the licensee must notify the nominated principal club in writing of the details of any such activity within each compliance period of the nominated principal club,
(d) compliance activity is required only during a compliance period of the nominated principal club.
(2) In this clause, compliance activity means an activity in which a person participates for the purposes of compliance with a requirement of this Part.
The Tribunal's function in relation to applications before it is set out in section 63 of the ADR Act:
63 Determination of administrative review by Tribunal
(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.
(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:
(a) to affirm the administratively reviewable decision, or
(b) to vary the administratively reviewable decision, or
(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or
(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
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 or not it is contrary to the public interest for the Applicant to hold a licence under the Act.
The standard of proof applying in these proceedings is the civil standard. That is, the balance of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party.
The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 [at 23].
The discretion must be exercised keeping in mind the activities which are authorised by a licence/authority/certificate etc. under the Act. Accordingly, the objects and purposes of the Act are relevant.
[3]
The Public Interest
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."
The 'public interest' allows 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: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.
"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 'the 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.
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.
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 as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at paragraph [23].
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 taken into account. 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.
[4]
The material before the Tribunal
The Applicant has provided two affidavits. He appeared and gave evidence at the hearing and was cross-examined. His counsel, Mr Fordham made submissions on his behalf. The Applicant also relies on correspondence from the Cecil Park Clay Target Club in relation to his membership.
The Respondent relies on written and oral submissions by Mr Zoppo and a bundle of material filed pursuant to section 58 of the ADR Act. This bundle includes records in regard to the Applicant's interactions with neighbours, complaints to police and action taken by police in relation to a number of incidents involving the Applicant and his neighbours.
[5]
Compliance with conditions of the licence
The Respondent contends that the Applicant has failed to meet the requirements applicable to a licence that is held for the genuine reasons of sport target shooting and recreational hunting and Vermin control.
The Applicant advised the Respondent that the genuine reason for sport/target shooting was target shooting and clay target shooting for his category A firearms at the Sporting Shooters association of Australia (NSW) Inc. The Applicant also provided the genuine reason of recreational hunting and vermin control for category AB firearms.
Clause 111 of the Regulations imposes a requirement on a licence holder who is a member of more than one approved club to nominate a principal club and to notify the Commissioner of the principal club. The Respondent contends that the Applicant did not comply with that requirement. The Respondent contends that the Applicant did not meet the shooting requirement of at least four shooting events per year.
In his affidavit dated 17 August 2020 the Applicant stated:
I have been a financial member of Cecil Park Clay Target Club and/or Cecil Park Clay Target Hunting Club from 2006 until 2019. ...
I have participated in at least four (4) shooting events per year conducted by Cecil Park Clay Target Club and/or Cecil Park Clay Target Hunting Club from 2006 to 2019.
I am a fit and proper person to be licenced to possess and use a firearm of both Category A and Category B.
I am a current financial member of Cecil Park Clay Target Club. ...
On or about 2006 I became a member of Cecil Park Clay Target Hunting Club for the purpose of supporting my genuine reason of sport target shooting.
On or about 2009 I advised Sporting Shooters Association of Australia to remove the genuine reason of sport target shooting from my membership because I was fulfilling that obligation with Cecil Park Clay Target Club.
I have not failed to maintain my genuine reason of sport target shooting and I have not disregarded the requirement to support a genuine reason. ...
I believed that Cecil Park Clay Target Club and/or Cecil Park Clay Target Hunting Club would advise the Firearms Registry of my membership and compliance.
The Applicant annexed correspondence from the Cecil Park Clay Target Club which supports his evidence of membership of the Cecil Park Clay Target Club and/or Cecil Park Clay Target Hunting Club. In his evidence before the Tribunal the Applicant confirmed that he had attended at least four shooting events per year as part of that membership.
I am satisfied that the Applicant has satisfied the shooting requirements for the genuine reason for sport/target shooting. However I am not satisfied that the Applicant has complied with the notification requirements provided for by clause 111 of the Regulations.
Nevertheless, in the circumstances I am not satisfied that any real and appreciable risk to the public has resulted from this failure.
[6]
Complaints from neighbours
Of more significance, in my view, is the apparent conflict between the Applicant and people who reside near the Applicant ("neighbours"). The Respondent relies on reports contained in the material filed pursuant to section 58 of the ADR Act. These reports identify complaints from 9 different neighbours. The Events involved the Applicant and neighbours calling the Police about issues such as:
1. harming the cats of a neighbour;
2. being involved in the making of noise;
3. illegally parking vehicles;
4. electronically recording the complainant; and
5. threats of violence.
Most of the incidents are trivial in nature. However, one of the incidents which occurred in March 2019 ("the March 2019 incident") in which a young neighbour approached the Applicant with a screwdriver and punched and kicked the Applicant's head. The Applicant reported the matter to Police and the neighbour was charged and an AVO made to protect the Applicant.
The Applicant's written submissions correctly summarise the following reports/incidents:
E53141018 (16/11/2013)
The Applicant was the victim. The Person Named (PN) … attended the Applicant's home and accused him of killing her cats. The Applicant called Police and told them that this was a regular occurrence and would like a record made.
E60439684 (30/05/2015)
The Applicant was listed as the PN. It was alleged [the complainant] that the Applicant "was riding past on his bike staring at him and took a photo of him on his phone". No offence was detected.
E900896890 (01/10/2015)
The Applicant was the victim. [The complainant] leant over the Applicant's back fence holding a phone camera stating, "This is going to be downloaded to Youtube". The Applicant attempted to cover the phone camera with his hand which was grabbed by [the complainant]. The Applicant immediately attended Wetherill Park Police Station to report the incident.
E231343996 (26/08/2016)
The Applicant was the victim. A young person threw a rock at the Applicant, who contacted Police.
E62102245 (07/09/2016)
The Applicant was the victim. [The PN] went to the Applicant's home and punched him in the face. The Applicant called Police, but no action was taken.
E64560973 (12/03/2017)
The Applicant was the victim. A group of young people threatened the Applicant who contacted Police.
E69281657 (22/09/2018)
The Applicant was the victim. A neighbour sprayed the Applicant with a garden hose. The Applicant contacted Police.
E69730236 (09/01/2019)
The Applicant was the victim. A neighbour verbally abused the Applicant regarding a parked vehicle. The Applicant contacted Police.
E298588695 (23/03/2019)
The Applicant was the victim. [The PN] and the Young Person verbally abused the Applicant in relation to his CCTV cameras. The Applicant called Police.
E138013402 (26/03/2019)
The Applicant was the victim. The Young Person approached the Applicant with a screwdriver, punched and kicked the Applicant's head. The Applicant reported the matter to Police. The Young Person was charged and an AVO made to protect the Applicant.
E71486913 (15/07/2019)
The Applicant was the victim. [The PN] approached the Applicant and claimed that he had killed her cats.
E72679360 (01/03/2020)
The Applicant was the victim. The Applicant was watering his garden when [the PN] and the Young Person verbally abused him, claiming that he had killed their cats. The Applicant called Police who sought Personal AVO's on behalf of the Applicant and his wife.
In regard to these incidents the Respondent has submitted that while it is unclear who is at fault, the Applicant is the common denominator in each of the events. The Commissioner is concerned about:
1. the period of time over which the complaints have been made. The first complaint was recorded in 2013 and prior to that time there had been a long history of conflict arising from noise complaints involving the Applicant;
2. the number of people involved. It seems that the Applicant had been in dispute with about 9 neighbours; and
3. the escalation of the incidents to violence. The March 2019 incident involved allegations of physical violence and threats of physical violence between a young neighbour and the Applicant;
The Police who attended to investigate the circumstances of the March 2019 incident were concerned about the presence of firearms in the location. As a result the Applicant's licence was suspended and the Applicant's firearms were removed from his possession.
[7]
Conclusion
The licensing regime is about protecting the public. The principal issue in this matter is whether or not there is a risk to the safety of the public, including the Applicant, if the Applicant is permitted to possess firearms.
I agree with the Commissioner that there is generally cause for concern about the risk to the public when there is significant disharmony within a community that has persisted for a long period of time. In the circumstances of this matter there has been conflict between the Applicant and other nearby residents for around twenty years.
This is not a matter where there is a single neighbour who is in dispute with the Applicant. However, it appears that during long period of conflict the Applicant has been the victim in most incidents. It is unclear why the level of conflict has persisted for so long. It is also unclear why the apparent animosity is directed towards the Applicant.
Nevertheless, while the disharmony within the Applicant's community has persisted for a significant period of time only the March 2019 incident involved an escalation to a stage where it involved violence. At no stage has there ever been any suggestion that the Applicant's access to firearms influenced any of the alleged conduct.
It is not possible to predict with absolute certainty where the risk lies in any particular situation. As has been frequently noted, 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. The Tribunal must make decisions that are consistent with a need to reduce any risks to a minimum.
In my view, if there is any risk to the community associated with allowing the Applicant to hold a firearms licence, it is at the lowest end of the scale.
That being the case, I am not satisfied that there is any real and appreciable risk that the Applicant will not comply with the firearms legislation if the licence is returned.
In my view, the correct and preferable decision is that the decision to revoke the Applicant's licence should set aside.
However, I note that the Applicant has indicated that he is willing to accept a condition on his licence that any firearms he owns are not to be stored at his residential address and that those firearms are to be stored at Sydney International Shooting Range. The Commissioner has suggested that if the Tribunal is minded to impose a special condition pursuant to section 19 of the Act the special condition should effectively remove the firearms from the community and ensure public safety. I agree with the Commissioner's suggestion.
The Applicant's licence is to be subject to the following conditions:
1. The Applicant is not to store or allow any firearm to be stored at his current residential address;
2. The Applicant is not to possess a firearm within 200 metres of his current residential address;
3. The Applicant is to safely store all firearms that he owns at Sydney International Shooting Range or any other venue to which the Commissioner agrees. Storage of the Applicant's firearms is at the Applicant's own expense; and
4. The Applicant is to notify the Firearms Registry if he stores his firearms at an address other than Sydney International Shooting Range. This notification is to be given in writing by email or as otherwise agreed with the Firearms Registry and is to be given no later than 7 days after the firearms have been stored at an address other than Sydney International Shooting Range.
[8]
Orders
The decision to revoke the Category AB Firearms Licence held by Sam Prevetera is set aside.
The Applicant's licence is to be subject to the following conditions:
1. The Applicant is not to store or allow any firearm to be stored at his current residential address;
2. The Applicant is not to possess a firearm within 200 metres of his current residential address;
3. The Applicant is to safely store all firearms that he owns at Sydney International Shooting Range or any other venue to which the Commissioner agrees. Storage of the Applicant's firearms is at the Applicant's own expense; and
4. The Applicant is to notify the Firearms Registry if he stores his firearms at an address other than Sydney International Shooting Range. This notification is to be given in writing by email or as otherwise agreed with the Firearms Registry and is to be given no later than 7 days after the firearms have been stored at an address other than Sydney International Shooting Range.
[9]
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: 24 May 2021