(1989) 168 CLR 210
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Source
Original judgment source is linked above.
Catchwords
(1989) 168 CLR 210
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Judgment (3 paragraphs)
[1]
The Application
As previously referred to, the Applicant did not seek a review of the decision made by a delegate of the Respondent to revoke his firearms licence on 11 October 2019 and instead lodged the Application on 15 September 2022 for the genuine reason of recreational hunting/vermin control based on permission to shoot on rural land. In the Application, the Applicant appropriately disclosed that he had previously had his licence suspended or revoked.
In the Applicant's letter of 28 August 2023 (exhibit A1), the Applicant stated that he had held his gun licence for 11 years without incident. Similar submissions were made on his behalf at the hearing. In light of my finding that the Applicant received a police warning for the 2010 incident, I do not accept that the Applicant held his firearms licence from 2007 to 2018 without incident. It is evident that the Applicant's licence was suspended in 2018 and subsequently revoked and I have previously made a finding that the Applicant failed a safe storage inspection in relation to Level two storage for his category C firearms.
I have had regard to the character references adduced by the Applicant. The first is from his employer, Mr Dan Keenan, who states that the Applicant is a kind, hardworking and very responsible person and that he "has always been conscious of rules and procedures." There is a further reference from the Applicant's partner, Ms Spry, in which she refers to the Applicant having made some "mistakes" in his youth and to "completely" settling down after the birth of his son in 2015. The reference from Ms Elliston also refers to the Applicant being open about mistakes made in his youth. As referred to previously, Ms Elliston and Ms Spry gave oral evidence at the hearing.
None of the character witnesses made reference to the previous firearms licence held by the Applicant, the 2010, the circumstances surrounding the suspension and revocation of the Applicant's firearms licence or the finding of the loose ammunition by police at the Applicant's premises in December 2020. As a consequence, I give no weight to these character references in my consideration of these matters in my determination.
I am satisfied that in each of his three applications for licences in 2007, 2012 and 2017 that are contained in the s 58 documents, the Applicant declared that he fully understood and could comply with the firearms safekeeping requirements of the Act and associated Regulation.
In Bottomley v Commissioner of Police [2005] NSWADT 211, the Tribunal held at [20]:
20 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.
In Bevan v Commissioner of Police, New South Wales Police Service [2004] NSWADT 1, the Tribunal said at [26]:
26 The Tribunal accepts Ms Patterson's submissions that contraventions in respect of failing to meet the safe storage requirements as set out under Part 4 of the Act are fundamental in their nature in that they are contraventions, which go to the crux of the principles and objectives of the Act…
In making a decision in this matter, the Tribunal is required to consider all relevant matters and give proper, genuine and realistic consideration to each relevant matter. The Appeal Panel said in Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 at [24]-[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…
It is an underlying principle of the Act to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety. The objects of the Act include the provision of strict requirements that must be satisfied in relation to the licensing of firearms and to ensure that firearms and ammunition are stored and conveyed in a safe and secure manner.
I have had regard to the findings that I have made above in relation to the Applicant's conduct concerning:
1. the 2010 incident in which he breached a condition of his licence by having unsecured ammunition in his vehicle and for which he received a warning from police;
2. his breaching a condition of his previous firearms licence in 2018 by not having Level 2 storage which was a requirement for the category C firearms (2018 incident); and
3. him possessing loose ammunition at his residence in 2020 following the suspension and subsequent revocation of his previous licence (2020 incident).
It is clear that each of these three incidents related to a failure by the Applicant to comply with the relevant legislative provisions for the safe storage of firearms and ammunition. In light of the findings that I have made, I am not satisfied that there is virtually no risk if the Applicant was to hold a firearms licence and possess firearms.
In my view, the 2020 Incident is particularly serious, as it occurred after the warning given to the Applicant for similar conduct in relation to the 2010 incident and in circumstances where the Applicant had not held a firearms licence for over two years as his previous licence had been revoked. Multiple quantities of loose ammunition were found by police in various locations within the Applicant's residence, including in his bedroom, leading to the potential for such ammunition to be lost, stolen or otherwise come into the possession of a person not authorised to possess it and resulting in significant concerns about public safety.
On this basis, I note that even if I had not been satisfied that the 2018 incident had been made out, this would not have affected my assessment of the risk in relation to the Applicant holding a firearms licence and possessing firearms.
I have also taken into account that the considerations of the Applicant's private interest in having a firearms licence are outweighed by the public interest.
[2]
Conclusion
Having regard to the principles of the Act, and the findings that I have made, I am satisfied that the issue of a firearms licence to the Applicant would be contrary to the public interest. Accordingly, I am satisfied that the Application should be refused, and that the correct and preferable decision is to affirm the Respondent's Decision.
Having made this decision, it is not necessary for me to consider the further evidence relied upon by the Respondent in relation to the other public interest grounds, or to consider whether the Applicant is a fit and proper person for the purpose of the Act. For the avoidance of any doubt, I have only had regard to the open evidence in making my determination in this matter.
[3]
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
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Decision last updated: 03 December 2024
Section 75(1)(a) of the Act confers jurisdiction on the Tribunal for administrative review of the Respondent's decision pursuant to s 9 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). Section 63 of the ADR Act provides that in determining an application for review, the Tribunal is to make the correct and preferable decision having regard to the material then before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[30], [34]. In an application for review the Tribunal is not restricted to a consideration of the material that was before the decision maker but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31.
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]. Accordingly, the objects and purposes of the Act are relevant.
Public Interest
I will firstly consider the Respondent's contention that it is not in the public interest for the Applicant to hold a firearms licence.
The phrase "public interest" is not defined in the Act. In O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at [13], the High Court held that the "public interest" imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9 at [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms:
[A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety 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 concept does include standards acknowledged to be for "the good order of society and for the well-being of its members": Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (No 2) (1995) 131 ALR 657, 681, the High Court said:
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.
The issue of public interest allows for matters going beyond the applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]. In the present context, and given the objects of the Act as explicitly and emphatically stated in s 3(1), the primary consideration in relation to the public interest must be public safety.
In a familiar passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward), at [28] 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. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130].
Did the Applicant fail a safe storage inspection in 2018
In oral submissions, Mr Kable, the solicitor appearing on behalf of the Applicant submitted that the material relied upon by the Respondent in the s 58 documents did not establish that the Applicant had breached the safe storage conditions on his licence in 2018. Mr Kable made reference to Senior Constable Rebecca Drew's entries in Event Reference No: E 68550456 from the NSW Police Force database known as COPS (2018 COPS Event). Senior Constable Drew's entries were made on 21 July 2018 in relation to a safe storage inspection that she carried out at the Applicant's residence on that day.
In his submissions, Mr Kable made reference to s 41 of the Act that sets out the requirements for category C licences and includes reference to the need for a safe to be bolted to the structure of the premises where the firearm is authorised to be kept. It was submitted that the s 58 material establishes that the Applicant's safe was bolted down. Mr Kable indicated that the only evidence of the Applicant's breach of the safe storage conditions in 2018 came from the 2018 COPS event and placed reliance on the decision in Carpenter v Commissioner of Police, NSW Police Force [2023] NSWCATAD 163 (Carpenter) at [86]. Mr Kable submitted that the 2018 COPS Event amounts to no more than an allegation and that no evidence was brought by the Respondent to substantiate the allegation. Accordingly, it was submitted that the Applicant had not breached a condition on his licence at any time, including in 2018.
Consideration
It was not in dispute that the Applicant previously held a firearms licence between 2007 and 26 July 2018 and that during this time his firearms and ammunition were stored at his residence. I am satisfied that as of 21 July 2018, that the Applicant had an ammunition safe as well as a separate safe for his seven firearms. I am satisfied from the documentary evidence that the Applicant handed all of his firearms to a licensed firearms dealer at some time on 26 July 2018 and that his firearms licence was seized by police later on that same day.
I am satisfied that the various items, including the loose ammunition, referred to in the Property Seizure Record were located by police in and around the Applicant's residence on 16 December 2020. It is evident from the Property Seizure Record that at least 12 separate lots of ammunition, were located by police on that day, with at least two of those lots being located in the Applicant's bedroom, with further ammunition located in the garage, where the Applicant's ammunition and firearms safes had been located. A number of spent cartridges were also found on the driver side of the Applicant's vehicle together with a spent round in his bedroom.
I have had regard to all of the evidence in this matter, and in particular the ammunition found in the Applicant's bedroom, which included 17 live rounds of .22 ammunition I have also had regard to the spent cartridges located in the Applicant's bedroom and in the driver side of his vehicle. In the circumstances, I accept the responses given to police by the Applicant's father in relation to the loose ammunition found during the search on 16 December 2020. Accordingly, I am satisfied that the loose ammunition and the firearms bolt located by police belonged to the Applicant and were left over from the period when he had held his previous licence, namely between 2007 and 26 July 2018.
Given this finding, it follows that I do not accept that the ammunition belonged to the Applicant's father or uncle, particularly as it has been some 25 and 15 years respectively since they held firearms licences.
As referred to previously, the possession of ammunition for any firearm without a permit or licence constitutes an offence under s 65(3) of the Act. The evidence of Sergeant Anderson was that the Applicant was not charged in relation to the possession of the ammunition on the basis that the officer accepted that the ammunition was left over from when the Applicant previously held a licence, and no firearms were located during the search. In light of my finding that the loose ammunition belonged to the Applicant, I am satisfied that he was in possession of it, even though he was not charged with any offence in relation to it.
Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. Hennessy DP stated at [8]:
The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests.
Other cases have pointed out that the question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, 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]. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32], Montgomery JM, when considering the question of public safety, stated that "In determining this issue it is my view that 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".
In circumstances where it was not in dispute that the Applicant has not held a firearms licence since 26 July 2018, it follows that as of 16 December 2020, the ammunition and spent cartridges that were located by police must have been at the Applicant's premises for a period of over two years and I am satisfied that this is the case.
Whilst it is not necessary to do so, I note that even if I had not been satisfied that the loose ammunition belonged to the Applicant, I would have had regard to the fact that loose ammunition was found in the Applicant's residence, including in his bedroom. As the holder of a previous firearms licence, the Applicant should have been aware that he not able to possess ammunition whilst unlicenced and would also have been aware of the requirements of a licence holder to safely store all ammunition. It is clear that the loose ammunition had not been safely stored and that the Applicant had not handed it into the police.
Whilst the Applicant was not charged in relation to his possession of the ammunition, the Tribunal is able to take into account matters indicating criminal conduct: Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31 at [62]-[64]. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70 at [30]. I give significant weight to the Applicant's conduct in this regard in reaching my determination in this matter.