Savage v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2024-08-16

REASONS FOR DECISION

The Applicant had held a firearms licence, without incident, for over 20 years. On 7 March 2024 the Respondent decided to revoke the Applicant's firearms licence. That decision was affirmed on internal review and the Applicant now seeks review by this Tribunal.

Relevant legislation

The general principles of the Firearms Act 1996 (the Act) are set out in s 3 of the Act: 3 Principles and objects of Act (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. (2) The objects of this Act are as follows: (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

Evidence

In support of his Application for Review the Applicant provided a bundle of documents, including: 1. Statements of 4 July 2024 and 2 August 2024 2. Statement by his wife, Judith-ann Savage dated 4 July 2024 and 4 August 2024 3. Correspondence between the Applicant's solicitor and the Rabbit Board's solicitors 4. Statement of service with the Rabbit Board 5. First firearms application
The Applicant provided references from: Renee Mackenzie and Mark Ridge of the Rabbit Board (dated 2008, 2014 and 2006 respectively), Colleen Schofield, Max Watson, Sam Thompson, Mark Levis, Stephen Mahoney, and Phil Richmond.
Both the Applicant and his wife gave evidence and were cross-examined.
The Respondent provided material in accordance with s 58 of the Administrative Decisions Review Act 1997 (ADR Act), including extensive photographs taken at the Applicant's home on 15 February 2023. Material filed by the Respondent included a (BWV) recording made by Police when they attended the Applicant's property on 15 February 2023. I reviewed this BWV after the hearing.
The Respondent also filed affidavits/statements by: 1. Todd Yates, Sheriff's Officer 2. Andrew Jones, Sheriff's Officer 3. Ryan Houlihan, Locksmith
None of the Respondent's witnesses were required for cross examination.

Tribunal's approach

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 before it, and any applicable written or unwritten law. It is well established that a 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] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (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: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10.

What led to the revocation of the Applicant's firearms licence?

The Applicant was employed by the Darling Downs-Moreton Rabbit Board (the Rabbit Board), which, according to its website, is a statutory authority established under the Queensland Biosecurity Act 2014 responsible for the maintenance of the 555km of rabbit barrier fence running from Mt Gipps to Goombi. It appears that his role required the use of firearms for rabbit control and it was for that reason that he first obtained his firearms licence. As a condition of his employment the Applicant was provided with a property in western NSW in which he, and his family lived (the Premises) for over 22 years. The Premises were leased by the Rabbit Board from the New South Wales Government. The Applicant and his employer had a falling out, it appears, because of the Applicant's refusal to be vaccinated against COVID, and he was dismissed. The Rabbit Board brought proceedings in the Consumer and Commercial Division of this Tribunal for the eviction of the Applicant and his family from the Premises, as he was no longer an employee and thereby had lost his entitlement to occupancy of the Premises. The Tribunal issued a Warrant for Possession of the Premises (Warrant).
In the days leading up to the execution of the Warrant there was correspondence between the Applicant's solicitor and the solicitor for the Rabbit Board. The Applicant's solicitor alleged that the Warrant was invalid, having apparently been issued on the basis that the Rabbit Board was entitled to vacant possession under the Residential Tenancies Act 2010. The Rabbit Board's solicitors informed the Applicant's solicitor that it did not propose to withdraw the Warrant and considered it had been properly issued and advised that eviction would proceed if the Applicant did not vacate the Premises voluntarily "forthwith". The Applicant brought proceedings in the Queensland Industrial Relations Commission (QIRC) for unfair dismissal, which, as at 15 February 2023 had not been finalised.
Police were asked by the Sheriff's office to attend the Premises on that date when the Warrant was being executed because guns were known to be at the Premises - the Applicant and one of his sons both holding firearms licences. Three Sheriff's Officers - Inspector Andrew Jones (Jones), Senior Sheriff's Officers Todd Yates (Yates) and Timothy Fawdry (Fawdry) - and three Police Officers, Acting Inspector Vaughan (Vaughan) and Senior Constables Daniel Rankin (Rankin) and Elizabeth Brooke (Brooke), accompanied by locksmith, Ryan Houlahan (the locksmith), attended the Premises.
As to whether he was surprised when the Sheriff's Officers turned up to evict the family, the Applicant said in cross examination that he was told "something would happen" but he didn't know when. He could recall whether he had seen the correspondence from the Rabbit Board's solicitor to his solicitor dated 9 February 2023 that the eviction, nor could he recall the Warrant issued by the Tribunal on 3 February 2023, following consent orders made in October 2022. He understood though, he said, that he would have to vacate at the conclusion of the QIRC proceedings. In those proceedings, he said "something went wrong" and he had to seek to re-open the matter. He said they had taken no steps to move out of the Premises before the eviction on 15 February 2023. Mrs Savage said though that she had made multiple attempts to find alternative accommodation, but they were still trying to resolve the QIRC proceedings. She said they had removed "some property" and noted that the Premises sat on 50 acres of land.
Jones and Yates' evidence was that they were met by Mrs Savage who initially did not want them to enter the Premises, but after Jones showed her a copy of the Warrant, and she made a number of phone calls, she permitted them to enter. Only Mrs Savage and her two daughters were there at the time.
Mrs Savage's evidence was that she had told Jones that they had advice to the effect that the Warrant was invalid and also that there were proceedings in the QIRC on foot. She showed him copies of the correspondence between the solicitors and a copy of the Notice of Listing in the QIRC to re-open the Applicant's unfair dismissal application which had a return date of the following day. At her request Jones spoke with their solicitor and also someone at the Rabbit Board.
In her statement dated 4 July 2024, and before me Mrs Savage's evidence was that after entering the house, she showed "the Sheriff" where the gun safes were, which so far as she was aware, were closed and locked because that is how her husband always left them. She said the safes were never left unlocked.
Yates' evidence was that when he entered the Premises he turned right and saw a number of racks which partially blocked off the entrance to another room. When he walked beyond the racks he saw a leather belt containing ammunition which appeared to be shotgun cartridges and two firearms safes, one of which was open and the door was ajar. He observed that there were firearms in the unlocked gun safe. He stood at the entrance to the room to ensure nobody could approach the firearms safe. He said that Fawdry pointed out to him ammunition in a child's room - some of which was in cardboard boxes, and some was loose.
Jones' evidence was that he saw ammunition boxes on the floor, an open gun safe and several firearms inside the safe. Rankin said in relation to the large black gun safe, while it bolted to the floor, he could "easily shift it back and forth using minimal physical force". When he turned the handle to the safe, he found it to be unlocked and he saw six firearms inside. The safe was fitted with a lockable internal compartment in which there was a key which, once opened, was observed to contain several boxes of ammunition. There was also an unlocked storage locker two metres away from the gun safes which also contained ammunition. On the top shelf of a storage locker there was a green-lidded plastic jar (the jar) containing keys, one of which was used to open the smaller gun safe.
Rankin's evidence was that the smaller gun safe was not secured to the floor at all and was also able to be moved using minimal physical force. Further, there was more unsecured ammunition around the storage area, two full boxes of shotgun cartridges, several boxes of small calibre rounds, two 'slings' containing ammunition and some larger rounds that had been lined up on a wall fitting for a switch.
Vaughan was asked by Mrs Savage to speak to the Applicant on the phone and he said the Applicant told him that the safe with the electronic keypad was his safe and that he believed it to be locked. Vaughan then told him that the safe had been found unlocked and for that reason Police would be seizing all firearms, ammunition and firearm parts from the Premises.
After Mrs Savage and her daughters left, Police re-entered the Premises to video and photograph the location of the unsecured firearms and ammunition and then seized all the ammunition, firearms and firearm parts. There was no dispute that neither the Applicant nor his wife nor any other family member was present when the photographs and video were taken.
The Applicant explained that there were 2 gun safes. The black one had a keypad combination lock with a back up key lock in case of a flat battery, and all 6 guns in the black gun safe were his. The back up key was in the jar in the locker several metres away. He said he was the only one with a key to the locker and it was not unlocked, although he conceded he did not check it before going to work that day. The safe contained a smaller key-lockable safe for ammunition. The key was also stored in the jar.
The smaller grey gun safe was key lockable and one of the guns in it belonged to Joshua. He said his 2 other sons had junior licences as well and the safe contained the firearms they used as well. In his statement that Joshua had the only key, so Police could not have used a key found it the jar to open that safe.
In the Applicant's statement dated 4 July 2024 and before me, his evidence was that the safes were locked when he left for that morning and that he "[knew] for a fact" that the storage was appropriate and the safes were locked. If the smaller safe was not secured appropriately to the building, he said it was an oversight in the current circumstances and he "[took] responsibility for it". Whatever the key Police used to open the smaller safe was not the safe key as it was still in the possession of his eldest son, who also holds a firearms licence. No corroborating statement was provided by his son.
Mrs Savage said in her evidence that whilst she was showing the Sheriff through the house, she was asked twice by Vaughan if she knew where the gun safe keys were and she was told she would be in trouble if she knew but did not tell the Police. She said that when she first came downstairs, she saw the "locksmith from Warwick" coming "out from behind" the cupboards from the direction of the gun safes and ammunition locker and exiting the house". In her evidence she explained that she passed him - he coming from the direction of the gun safes - and she understood him to be leaving the Premises. She thought that odd because at that time there was nothing for him to secure as the family had not yet vacated the Premises.
In her statement Mrs Savage said that her husband was always responsible when using firearms and that they were always locked away when not in use. She said that the gun safes were locked. The keys would be irrelevant if the lockers had been left open as alleged by Police. Similarly, she said that Police told her that if her husband was unable to return home to collect the firearms, they would arrange for their specialist team to come from Coffs Harbour to "cut the safes open". Again, this would not have been necessary if the scene was as alleged by Police. As discussed, only one gun safe was alleged to be unlocked.
The evidence of both Jones and Yates was that they did not "see observe or hear" the locksmith interfere with the firearms safe in any way while they were at the Premises. The evidence of the locksmith is that he was only engaged to rekey the Premises, that is, to change the locks so that the old keys would no longer work. He denied that he in any way "interfere[d] with, attempt[ed] to open or handle any of the firearm safes or lockers/cupboards in any capacity" and was not asked by any member of the Rabbit Board, the Police or the Sheriff's Office to do so. He wrote in his statement that he changed the locks of the screen door, a wooden door and a glass sliding door. He may have screwed the backdoor shut.

The charges against the Applicant

On 8 March 2023 the Applicant was charged with: 1. not keep firearm safely-not pistol/prohibited firearm contrary to s 39(1)(a) of the Act and 2. holder of category A or B licence not have approved storage contrary to s 40(1) of the Act.
However, on 16 February 2024, the charges were dismissed by the Lismore Local Court after a defended hearing.
The Magistrate was asked to exclude the Police evidence in relation to finding unsecured firearms and ammunition, that is, the subject of the charges, on the basis that Police were not lawfully entitled to enter the Premises. In particular, it was submitted, if the Sheriff's Officers were not entitled to enter the Premises, neither were the Police who accompanied them. The Magistrate did not determine the validity of the Warrant, and it is unclear if the dispute about the Warrant, or indeed, the QIRC proceedings, have been finalised even at this time, although Mrs Savage's evidence was that the QIRC proceedings were discontinued in September or October 2023. The Applicant said, with respect to the proceedings that they had "run out of money".
Section 138(1) of the Evidence Act 1995 provides that evidence that was obtained "in consequence of an impropriety or of a contravention of an Australian law" is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. It was contended before the Magistrate that 30 days notice was required to have been given, and that that had not occurred. The Magistrate was of the view that the Sheriff's Officers were on notice that there was a dispute about the Applicant's dismissal, and consequently, the eviction, but had proceeded with the execution of the Warrant nonetheless and that that amounted to an "impropriety". As a consequence, the Police evidence was excluded, and the Police case against the Applicant failed.

What is the effect of the Magistrate's findings in the matter now before the Tribunal?

It is well settled that the Tribunal is entitled to take into account an applicant's conduct, whether or not that conduct has resulted in his being convicted of, or even charged with, criminal offences, in determining whether an applicant may hold a firearms licence: Joseph v Commissioner of Police [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 [2014] NSWCATOD 70 at [30].
It is clear then, as the rules of evidence do not apply in the Tribunal, that the Tribunal may take into account the evidence of Police and the Sheriff's Officers as to what they observed at the Premises in relation to the Applicant's storage of firearms and ammunition. Having said that though, the Applicant and his wife vehemently denied that the Applicant's firearms were unsecured as alleged, asserting, in particular, that both safes and the locker were locked. The Applicant's case was that the firearms and ammunition were secured when the Sheriff and Police arrived at the Premises. "Someone else" had opened the gun safes and removed the firearms and ammunition for the Police to 'find' and photograph. Mrs Savage saw the locksmith in the vicinity of the gun safes when he had "no business" being there, inferring, presumably, that he had assisted in opening the gun safes. The Applicant's counsel went so far as to allege the Applicant had been "framed" by Police. Counsel conceded however that there was no direct evidence that a Police officer had opened the safes and removed the guns and ammunition.
Mrs Savage's evidence was that, during the eviction, Police asked her more than once for the keys to the lockers so they could access the firearms. It was submitted that Police would not have needed the keys if the gun safes had been open and unlocked as Police alleged. In fact only one gun safe was alleged to have been unlocked and the key was required to access the other safe.
By 15 February 2023 the Applicant was already working other than at the Rabbit Board, and, hence, had no need to go to his gun safe before work. He said that, as usual he left for work somewhere between 4.30 and 5.00 am, when it was dark. He did not check the gun safe before he left for work. He said he had checked that the black gun safe was locked 3-5 weeks beforehand and the week before the eviction.
The Applicant was asked about the ammunition boxes found around the house. He was referred to his statement where he wrote that he "always" secured his ammunition. He said in cross examination that he tried to ensure things were secured. Mrs Savage was unable to say there was no unsecured ammunition. All the Police were interested in, she said, was access to the gun safes.
He said he was shocked by the photographs of the unlocked and open safes and the ammunition located in the house. He said he never left his safes or ammunition locker unlocked and open, and he always secured his ammunition. If there was some loose ammunition in one of the bedrooms, he said he took full responsibility for that. In addition, as he was "the most senior firearms licence holder in [their] very busy household" he said he should have taken more notice. However, as far as he could ascertain, most of the "ammunition" was either spent ammunition or was display boxes without any ammunition in them. He thought any non-compliance could easily have been "rectified without delay" at the time with existing storage facilities. He had bought timber to secure the safes to the floor but had not got around to the task.
Extensive evidence was given by the Applicant and his wife about the photographs. There was no dispute by the Respondent that the photographs were taken after the family had left the premises. Mr Savage stated that when she returned to the property at 5pm, the house looked like it had been "ransacked", "the gun safes were left wide open" and "there were gun bags strewn over the floor and stairway. In referring to the photographs of the very untidy downstairs area, the Applicant said, however, that it "always looked like that". Mrs Savage said it was a small house with a lot of people and a lot of stuff in it. She had in fact apologised to Yates about the mess.
As to the photograph of the inside of the locker, the Applicant said the jar with the keys in it had been moved. This however was consistent with Police having located the key to the smaller (locked) gun safe in the jar and then returning the jar to the shelf.
The two unsecured ammunition slings, the Applicant said, were ordinarily located with the other ammunition. The lockable ammunition safe located inside the black gun safe did not appear from the photographs to be large enough to accommodate the gun slings. The Applicant agreed in cross examination that some photographs depicted unsecured ammunition in the bedroom of his sons.
She said that they had not removed all of their possessions. She said that the gun safes were "kept locked" because that was how their household was run; she never checked them herself . The gun safes were not in a thoroughfare and she had no cause to go there. She did not touch the gun safes and did not expect the children to do so either - there were the "house rules". She left the whole gun safe management to her husband and oldest son. As to unsecured ammunition allegedly being there she said she did not know because she never went there because of the mess.

Conclusion as to the events of 15 February 2023

There was significant disagreement between the parties as to what occurred when the Sheriff's Officers and Police attended the Premises. Those officers provided evidence of locating unsecured firearms and ammunition. The locksmith attended only, on his unchallenged evidence, to changing the locks and in no way opened or tampered with the gun safes. None of the Respondent's witnesses was required for cross examination, so, to that extent, their evidence is unchallenged.
Against that, was the evidence of the Applicant - who was not present at the Premises that day, and who gave evidence that he had last checked that the gun safes were locked the previous week, and specifically, did not check them before he went to work that day. Mrs Savage's evidence was to the effect that she had no direct knowledge of whether the gun safes were locked because she left that to her husband, but understood they were always locked.
I prefer the evidence that Police located the black gun safe in an unlocked condition. Irrespective of whether the gun safes were locked or not, there remains a serious issue about whether they were in fact secure. The large black safe, while bolted to the floor could easily be moved back and forth using minimal physical force. The smaller gun safe did not appear, from the BWV, to have been secured to the wall or floor at all. The Applicant gave evidence that he was aware that, at least the black safe was insecure and had purchased timber to bolt it to the floor it but had not actually taken any steps to do that.
I have no hesitation in reaching the view with respect to the loose ammunition that it was located in a number of locations throughout the Premises. The Applicant conceded that if there was some loose ammunition in one of the bedrooms and he took full responsibility for that as he was "the most senior firearms licence holder" in their household, and he "should have taken more notice". On the evidence of the Applicant and his wife, the boys were avid collectors of firearms memorabilia, including cartridge cases and ammunition boxes. Boxes of ammunition were found in the boys' bedroom, and loose ammunition was located in another child's bedroom, and elsewhere in the Premises.
I am comfortably satisfied that, on balance, the evidence establishes that, contrary to the evidence of the Applicant and his wife: 1. the Applicant's black firearms safe was unlikely to have been locked on the morning of 15 February 2023 when it was first observed by the Sheriff's Officers and Police 2. the smaller firearms safe was unlocked by Police using a key found in the jar in the unlocked locker 3. the locksmith was not involved in opening any gun safe 4. there was unsecured ammunition in a number of locations at the Premises.
The effect of these findings is that, on the balance of probabilities, the Applicant has breached the safe storage provisions of Part 4 of the Act.

What does the Respondent contend in relation to revocation?

Before me the Respondent submitted that, in addition to his having breached various safe storage provisions of the Act: s 24(2)(b)(ii), that the Applicant is not a fit and proper person to hold a firearms licence: s 24(2)(a) and s 11(3)(a) and; that he was not capable of complying with the safe storage requirements of the Act: s 24(2)(a) and s 11(3)(c); nor is it in the public interest that he hold a firearms licence: s 11(7). There is some overlap in these considerations.

Is the Applicant a fit and proper person to hold a firearms licence: 24(2)(a) and s 11(3)(a) and of the Act?

Section 11(3)(a) together with s 24(2)(a) of the Act have the effect of providing that a firearms licence may be revoked if the Commissioner, and hence the Tribunal on review, is not satisfied that the Applicant is a fit and proper person and can be trusted to have possession of firearms without danger to the public safety or to the peace.
The question whether a person is "fit and proper" is one of value judgment: Australian Broadcasting Tribunal v Bond [1990] HCA 33. The expression, on its own, carries no precise meaning and takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities: at 380.
In the context of firearms licensing, in Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 at [22], JM Higgins stated that in determining the fitness and propriety of an applicant for a licence s 11(3)(a) of the Act requires the decision-maker to have regard to an applicant's conduct and whether that conduct is such that the decision-maker can be satisfied that an applicant can be trusted to have possession of firearms without danger to public safety or to the peace. The test is directed towards maintaining and encouraging appropriate standards in the use of firearms.
Firearms licence holders have important obligations under the Act, particularly with respect to storage; they must not only understand and comprehend the guidelines and laws that govern firearms but also must act in accordance with them: Wiltshire v Commissioner of Police, NSW Police Force [2005] NSWADT 75 at [48].
The obligation to take all reasonable precautions to meet safekeeping requirements is an onerous one, and a contravention of those safekeeping requirements is a fundamental breach of the Act: Laughton v NSW Police Force [2023] NSWCATAD 2 at [84].
The Applicant held a firearms licence since August 2000, and gave evidence in the Local Court acknowledging that he knew he had " responsibilities in relation to [his] firearms and how they were kept". Yet, despite this knowledge and his longstanding use of firearms, he contravened the Act in multiple respects in relation to the storage of his firearms and ammunition. I accept the Respondent's submission that, it is reasonable to assume that had Police not attended the Premises on 15 February 2023, the unsafe storage and breaches of the Act would have continued There was a large volume of ammunition throughout the premises in multiple locations which suggests that the ammunition may have been stored improperly for some time. These issues give rise to serious risks to public safety. Furthermore, there were children in the household who may have been able to access the firearms and the ammunition.
Having said that, there was no dispute that the Applicant has no criminal history, nor any recent traffic record. His referees all noted the Applicant's diligence, integrity and commitment to his family, none addressed the concerns in relation to the safe storage of the Applicant's firearms. Mr Watson considered the Applicant "always used safe practices", in relation to firearms use, but did not address safe storage. Similarly, Mr Richmond wrote that he considered the Applicant would be very capable of proper and safe use of firearms. For these reasons I can attach little weight to the references in relation to the concerns as to the Applicant's preparedness to safely store his firearms and ammunition.
The Applicant has engaged in fundamental breaches of Act and has demonstrated an irresponsible attitude towards and disregard for firearms laws.
For these reasons, I am not 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.

Is the Applicant capable of complying with the safe storage requirements of the Act: s 11(3)(c) and s 24(2)(a)?

Section 11(3)(c) together with s 24(2)(a) of the Act have the effect of providing that a firearms licence may be revoked if the Commissioner, and hence the Tribunal on review, is not satisfied that storage and safety requirements set out in Part 4 are capable of being met by the Applicant.
Section 40 in Part 4, for example refers to requirements in respect of Categories A and B licences including, relevantly, that when any such firearm is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable. If such a receptacle weighs less than 150 kilograms when empty, it must be fixed in order to prevent its easy removal, and that the locks of the receptacle must be of solid metal and be of a type approved by the Commissioner. Ammunition must be stored in an approved type of locked container and that is kept separate from the receptacle containing any such firearm.
Despite awareness that the gun safes were not fixed to the floor or wall the Applicant did not remedy this. Also, I consider that the scattered location of ammunition around the Premises suggests reckless indifference to the safe storage of ammunition. I therefore find that the Applicant is not capable of meeting the storage and safety requirements set out in Part 4 of the Act.
I am also concerned that the manner in which the Applicant has conducted these proceedings indicates that he may lack contrition or insight into his ongoing conduct with respect to the firearms and ammunition. As a result, I cannot be satisfied that he would comply with his safe storage obligations if he were again licenced to have firearms.

Contraventions of the Act: s 24(2)(b)(ii)

Section 24(2)(b)(ii) provides that a licence may be revoked if the licensee contravenes any provision of the Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention.
In Lynch v Commissioner of Police, NSW Police Service [2002] NSWADTAP 43 at [47] where the Appeal Panel said in relation to s 24(2)(b)(ii): ... [the fact an individual] escaped a criminal conviction does not mean that he should therefore automatically escape an administrative sanction against his licence. It is necessary for an administrator to take a stand in dealing with serious contraventions that is seen as a credible by the broader community, and sends the appropriate signal to licence-holders as to what is unacceptable.
I have found that the Applicant breached the safe storage requirements of the Act. This provides a further basis for the revocation of the Applicant's firearms licence.

Public interest

The Respondent also contended that it is not in "the public interest" for the Applicant to hold a firearms licence: s 11(7) of the Act. The term is not expressly defined in the Act. It is well-settled though that "the public interest" is considered relative to the objects of the Act and the firearms licensing system, with public safety being give paramount consideration: see, for example, Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].
The Tribunal exercises the discretion in s 11(7) of the Act in accordance with the Act's objects and underlying principles as set out in s 3 of the Act. The Tribunal's decision is to reflect the risk that an applicant will misuse a firearm in a way that impacts the public interest. The Tribunal has repeatedly said that an applicant is not required to discharge an almost impossible burden of proving a near absolute negative, but, rather, the Tribunal must take into account 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]. Further, when assessing the public interest, 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 at [32].
In Meacham v Commissioner of Police [2020] NSWCATAP 107 the Appeal Panel said at [26]: Referring to those principles and objects the overriding consideration of the maintenance of public safety is to be clearly noted. [n the words of the Tribunal in Ward v Commissioner of Police [20001 NSWADT 28, the decision maker must be satisfied that there is virtually no risk to the pubic. In Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 at [33] it was said: "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."
Similarly, in Commissioner of Police, NSW Police Force v Arnold [2023] NSWCATAP 264, the Appeal Panel said at [74]: The question is whether there is in all the circumstances a real and appreciable risk to the public if the person has access to firearms: see Webb v Commissioner of Police NSW Force [2004] NSWADT 510 at [32]. These considerations have been held to apply to the assessment of both a person's status as a fit and proper person and the public interest see Masterson v Commissioner of Police, NSW Police Force [2017] NSWCATAP 206 at [130]-[134], In addition to the underlying principles of the Firearms Act, s 3 also refers to various objects. One object is to provide strict requirements that must be satisfied in relation to licensing of firearms", and another is, "to establish an integrated licensing and registration scheme for all firearms".
Having regard my findings above, it is difficult to envisage circumstances where, nonetheless, it can be in the public interest for an applicant to hold a firearms licence. The Applicant said that he seeks a firearms licence for recreational hunting and vermin control. While I understand the Applicant to own another rural property near the Premises, he does not work as a primary producer. However, private interests such as described by the Applicant, are not the only matters taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. As I have observed many times, these matters 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].
It is well established that the likelihood of public safety risks is to be assessed by reference to an applicant's prior conduct: Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182 at [41]. From the available evidence, the Applicant and his sons are firearms enthusiasts. Their home in which they lived until they were evicted was chaotic. The gun safes were unlikely to be routinely locked, even though this may have been the Applicant's intention, and his wife's understanding of the house rules. There was live ammunition in a number of locations around the house.
In my view the Applicant's conduct demonstrates a cavalier attitude to firearms safety. This, in my view, establishes a real and appreciable risk to public safety.
I therefore find that it would be contrary to the public interest for a licence to be issued to the Applicant at this time.

Conclusion

I cannot be confident that the Applicant would continue to possess and use firearms only in accordance with the strict legislative requirements. The underlying principles of the Act stated in s 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at [28], DP Hennessy said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk". I cannot be so satisfied.

DECISION 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 New South Wales Civil and Administrative Tribunal. Registrar 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: 27 August 2024

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Judgment (16 paragraphs)

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Cases Cited (11)