Wallin v Commissioner of Police

Applicable legislation

1. 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.
2. This application is made under section 75 of the Act and the ADR Act.
3. The Act sets up a scheme to license people to possess and use firearms. One of the underlying principles of the Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms.
4. 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.
5. 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.
6. Section 11 of the Act provides: 11 General restrictions on issue of licences (1) The Commissioner may issue a licence in respect of an application, or refuse any such application. … (3) A licence must not be issued unless - (a) 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, and … (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.
7. Section 24(2)(d) of the Act provides that a licence may also be revoked for any other reason prescribed by the regulations.
8. 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. ...
9. 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.
10. 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.
11. 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 the Applicant is a fit and proper person to hold the licence or whether it is contrary to the public interest for the Applicant to hold a licence under the Act.
12. 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.
13. 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].
14. 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.

Fit and Proper Person test

1. The Commissioner, and the Tribunal standing in the Commissioner's shoes, must be is satisfied that the applicant is a fit and proper person hold a firearms licence.
2. Assessment of whether a person is fit and proper to be the holder of a licence is different from, but related to, an assessment of whether a person is of good character. The concept of 'fit and proper' takes its colour from its statutory context and a person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 the High Court said (at 156-7): "The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."
3. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Mason CJ explained, at 380, that: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
4. Toohey and Gaudron JJ said at 380: The expression "fit and proper person", standing alone, carries no precise meaning. It 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. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
5. The 'fit and proper' test applied in the Act is of broad application. The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to "give wide scope for judgement and allow broad bases for rejection.
6. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said: "In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails."
7. In Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 at paragraph [22], Higgins JM stated that when considering if an Applicant is a fit and proper person, their conduct should be considered and whether that conduct is such that the Applicant can be trusted to have possession of firearms without presenting a danger to the public safety or peace.
8. 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.

The Public Interest

1. The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence: "25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal."
2. The 'public interest' allows issues going beyond the character of the Applicant to be 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.
3. "Public interest' embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to '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.
4. 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.
5. 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].
6. 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.

The material before the Tribunal

1. The Respondent relies on written and oral submissions by his solicitor Mr Winram 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.
2. The Applicant has provided affidavit evidence and numerous other materials in support of his application. He also included references which are not specific to the firearms licence issue. The Applicant appeared and gave evidence at the hearing.
3. Included in the material that has been provided is a 2011 report from Mr Ian Campbell, a consultant psychologist. Mr Campbell's report was prepared in relation to an earlier consideration of the Applicant's firearms licence. He concluded: "In my opinion this person's 'mental condition' does not put public safety at risk, if this person was in the possession of a firearm."
4. A 2016 report was provided by Dr Geoff Lambert, the Applicant's GP who concluded: "His mental health is currently reasonably stable and he is managed by regular counselling and contact with me, his GP. He is not currently prescribed any medication for his mental health. He has not at any time presented as psychotic or thought-disordered and has not at any time shown any inclination towards self-harm or harm to others. I consider that he does not have any condition which would affect his fitness and ability to comply with all regulations regarding possession and use of firearms."
5. A more recent report was provided by Mr Vincent Cook, a forensic psychologist. Mr Cook concluded: "He presents as an individual who is in the low risk category. "

Mr Vincent Cook's report

1. Mr Cook is forensic psychologist. In February 2020 he was consulted by the Applicant in regard to the issues raised by the Respondent. In total the Applicant was interviewed for approximately 3 hours. Mr Cook provided an opinion in regard to the Applicant's mental health and his suitability to hold a firearms licence. Some aspects of the report are noteworthy: 1. Mr Cook noted that the Applicant has chronic health issues. He had previously suffered depression and anxiety at the time of a relationship breakdown. He has resolved the issues related to that situation however he continues to suffer mild range anxiety and depression which are likely to be related to ongoing pain issues and the difficulties regarding regaining his firearms licence. 2. The Applicant presents with a range of specifiers that would suggest that he is sub-clinical with regards to a mild presentation of Autism Spectrum Disorder. 3. He is rule focused, likes routine, is a poor perspective taker, is socially isolative, gets irritated by others rule breaking and his poor social interaction is evidenced in his complaints about others' interactions. His unusual presentation is related to this aspect of his functioning rather than psychopathology. 4. He is not on any psychoactive prescribed medication or anti-depressant medication that would cause alarm should he operate heavy machinery or firearms. 5. He does not present with elevations that would suggest that he is at risk of offending generally or violently. His risk to safety is not considered to be elevated above a normal population. 6. The Applicant tends to rub people the wrong way. He is rules and regulation orientated. He tends to get frustrated at others not following rules and will tend to report rule violations that perhaps others wouldn't report. For example he will report a dog defecating and the owner not picking it up regardless of whether there will be consequences from the owner. 7. These aspects of his functioning are suggestive of some symptoms of Autism Spectrum Disorder; however he doesn't meet the criteria for that diagnosis. Even if he did meet the cut off for the diagnosis it is unlikely to have excluded him from obtaining a Firearms licence. His desire to follow rules can be perceived as annoying but is likely to be protective regarding him following the rules of owning a gun. 8. He holds a positive attitude towards the use of firearms. He has been shooting recreationally for a number of years and has been around firearms since age 7. He has demonstrated his understanding of the rules and regulations relating to the use of firearms and presents as motivated and committed to their safe use. 9. The Applicant does not present with elevations that would suggest that he is an elevated risk of offending generally or risk regarding use of violence. He presents as an individual who is in the low risk category. 10. Mr Cook noted that it is unclear as to why the police originally thought that the Applicant had mental health issues. However he accepts that the Applicant does present interpersonally with difficulties and that when this characteristic is coupled with his intense desire for everyone to follow rules it is not surprising that a lay person would question whether there were mental health problems. He does not present with psychopathology or major mental illness and has no history, plans or intent to commit violence.

The Respondent's submissions regarding Mr Cook's report

1. The Respondent submits that the weight given to Mr Cook's conclusions should reflect that fact that the report does not address: 1. specific advice for which the Applicant's disability support pension card has been issued. Rather, it vaguely refers to it being health related, in combination with psychological difficulties he was experiencing as a result of his irretrievable breakdown of relationship; 2. any possibility of relapse; 3. the length of time Mr Cook has been treating the Applicant; and 4. if there is a previous history, yet no current concern, why circumstances have changed.
2. The Respondent further submits that Mr Cook's assessment was not based on a complete presentation of facts. Mr Cook was not informed of the number of complaints the Applicant made to police which are continually raised by him despite them being fully investigated and finalised, disputes with neighbours at other locations, or of the lengthy periods that the current disputes with his neighbours that have been ongoing, or have escalated in seriousness, or the full magnitude of his neighbourhood surveillance.
3. The Respondent further submits that Mr Cook was not available for cross-examination
4. The Respondent further submits that Mr Cook's report states that the Applicant "was on the Disability Support Pension since 1998 due to health related conditions, in combination with psychological difficulties he has experienced as a result of his irretrievable breakdown of relationship." However, the Applicant has never disclosed in his applications for firearms licenses that he has been referred to or treated for any mental health issues. The Applicant's lack of candour on his licence applications has arguably resulted in previous applications being unable to be properly assessed.
5. Consequently, there is too much uncertainty regarding the Applicant's mental health for the Tribunal to be satisfied that there is virtually no risk to public safety if the Applicant was granted a firearms licence.
6. In light of the discrepancies and inadequacies in the Applicant's psychological evidence, the Tribunal cannot be satisfied that there is "virtually no risk" to public safety for the following reasons: 1. the Applicant is involved in ongoing disputes with neighbours; 2. the Applicant is aware of the questions asked when undertaking a psychological assessments to assess the suitability for hold firearms licence as the Applicant had previously opened sealed envelopes; and 3. not enough time has passed to satisfy the Tribunal that the Applicant is of "virtually no risk" to the public.
7. The Respondent further submits that the Applicant has also been the subject of reports where he has been involved in both verbal and physical altercations with members of the public. As a result of these disputes the Applicant has been both the subject of and the protected person of a number of Apprehended Violence Orders.
8. Despite intervention by police and local authorities, incidents concerning the Applicant have continued over a lengthy period of time and concern numerous other individuals. The Applicant's behaviour raises considerable concerns regarding his future conduct and his ability to deal reasonably with disputes that arise. The Respondent contends that by permitting the Applicant to possess and use firearms in such circumstances, there is a risk to the public safety should any neighbourhood disturbance get out of hand.
9. For these reasons the Respondent submits that the correct and preferable decision is to affirm the decision to revoke the Applicant's Category ABH Firearms Licence.

Discussion

1. There is no doubt that the Applicant has been involved in numerous disputes with his neighbours or that he has both made complaints to the police and been the subject of complaints. These disputes have involved numerous neighbours and have continued for at least 25 years. I agree with the Respondent that the Applicant's behaviour over that period suggests that he will not have the ability to deal reasonably with disputes that arise in the future.
2. I have considered the issues that the Respondent has raised in regard to Mr Cook's report. I am nevertheless satisfied that satisfied that it should be given significant weight.
3. While I agree with the Respondent that Mr Cook's report does not discuss the numerous complaints, he did annex a list of the documents that he had taken into account. When this is coupled with his conclusions, I am satisfied that he was aware of the general nature of the neighbourhood disputes.
4. I also agree that Mr Cook did not specifically address the question of whether the Applicant is a fit and proper person to hold a firearms licence. However, he did note that the Applicant had attended "for a risk assessment regarding his suitability to hold a firearms licence following his licence suspension". It is apparent the Mr Cook was providing a report in that context. He stated: With regards to risk management, Professional services plans, living situations, treatment or supervision response, and stress or coping were all considered to be absent. Personal support is considered to be present however does not present as an issue for him given his psychological presentation and propensity to be a social isolate. Imminent violence, serious physical harm, future violence and case prioritization were all considered to be of a low risk. The HCR-20 notes that with regards to his overall risk he presents as a low risk of violence. He does not present with risk management issues.
5. In regard to the Applicant's mental health Mr Cook also stated: Mr Wallin is rules and regulation orientated. He tends to get frustrated at others not following rules and will tend to report rule violations. He will report rule violations that perhaps others wouldn't like a dog defecating and the owner not picking it up. He will report regardless of whether there will be consequences from the owner. This is evidence of his paucity of Theory of Mind and lack of ability to perspective take. These aspects of his functioning are suggestive of some symptoms of Autism Spectrum Disorder, however he doesn't meet the criteria. Even if he did meet the cut off for diagnosis it is unlikely to have excluded him from obtaining a Firearms licence. His desire to follow rules can be perceived as annoying but is likely to be protective regarding him following the rules of owning a gun.
6. Mr Cook's conclusions are consistent with the earlier reports from Mr Campbell and Dr Lambert.
7. The Applicant is not currently prescribed any medication for his mental health.
8. There is some reason to conclude that it is possible that the Applicant has instigated both verbal and physical altercations with his neighbours. However this is not clear. It is equally possible that his conduct that involved physical altercations was provoked or that he acted in self-defence. As Mr Cook has indicated, the Applicant "tends to rub people the wrong way". He will report rule violations that perhaps others wouldn't report and he will do so regardless of the consequences. Mr Cook accepted that this behaviour can be perceived as annoying. In the circumstances the neighbourhood disputes are explained. However Mr Cook's report does not suggest any means of resolving the situation.
9. Given his conclusions it is reasonable to expect that neighbourhood disputes are likely to continue. I note that the Applicant indicated that he intended to leave his current residential address. If he does so, the likelihood of neighbourhood disputes may be reduced.
10. Nevertheless, there is no evidence to suggest that the Applicant has not been a conscientious firearms owner or that he has not had a good record of compliance in relation to his personal licences. This tends to support the views expressed by the reports on which he relies.
11. As I have noted, Mr Cook's report suggests that the Applicant's desire to follow rules is likely to be protective regarding him following the rules of owning firearms.
12. In my view, while there is a strong likelihood that neighbourhood disputes will continue, the risk that the Applicant would misuse firearms is minimal. In my view, there is virtually no risk to public safety if the Applicant was granted a firearms licence.
13. I am satisfied that he is a fit and proper person to hold a firearms licence. I am not satisfied that it is contrary to the public interest for him to do so.
14. In my view, the correct and preferable decision is that the decision to revoke the Applicant's licence should set aside.
15. However, given the views that I have expressed in regard to the likelihood of ongoing neighbourhood disputes, it is my view that it is appropriate to impose a condition on the Applicant's licence to effectively remove the firearms from the neighbourhood. The Tribunal has power to impose a special condition pursuant to section 19 of the Act. If neighbours become aware that the Applicant's licence does not permit him to store firearms in the neighbourhood it may go some way further towards improving harmony than might otherwise exist.
16. 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 only store his firearms at an approved shooting range or other venue to which the Commissioner agrees ("the agreed location"). 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 proposes to store his firearms at an address other than the agreed location. 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 the agreed location.
17. I note that no suggestion has been made that the Applicant has ever failed to safely store his firearms. However, there have been complaints of attempted break-ins at his property. These conditions should eliminate the possible that a break-in at the Applicant's premises could result in the theft of firearms and any risk of misuse that could result from the theft.

Orders

1. The decision to revoke the Category ABH Firearms Licence held by Graham Wallin is set aside.
2. 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 only store his firearms at an approved shooting range or other venue to which the Commissioner agrees ("the agreed location"). 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 proposes to store his firearms at an address other than the agreed location. 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 the agreed location.

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

Amendments 18 June 2021 - Amended Category of Firearms licence to ABH. 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: 18 June 2021