Welsh v Commissioner of Police, NSW Police Force

Evidence before the Tribunal

1. The Commissioner relied on the following material at the hearing:

• documents lodged in accordance with s 58 of the ADR Act; and
• written submissions filed 16 August 2022.

1. Mr Welsh relied upon his review application and a statement by him provided on 19 July 2022. Mr Welsh gave oral evidence at the hearing.

The relevant law

1. Two of the underlying principles of the Firearms Act are: 1. to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and 2. to improve public safety by imposing strict controls on the possession and use of firearms
2. Additionally, the Firearms Act's objects as set out in s 3 include:

• to provide strict requirements that must be satisfied in relation to licensing of firearms, and the acquisition and supply of firearms.

1. The Commissioner (and therefore the Tribunal) has a broad discretion to issue or refuse a licence. The Tribunal, in determining applications such as in this matter, is required to exercise its discretion in a manner that promotes the principles and object of the Firearms Act. In Meacham v Commissioner of Police [2020] NSWCATAP 107 the Appeal Panel said: [26] Referring to those principles and objects the overriding consideration of the maintenance of public safety is to be clearly noted. In the words of the Tribunal in Ward v Commissioner of Police [2000] NSWADT 28, the decision maker must be satisfied that there is virtually no risk to the public. 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". [27] While the Commissioner can take into account an applicant's prior conduct, the licensing regime is supposed to be a matter of considering the public interest in its various aspects, and not a means of punishing an applicant for past misdeeds or infractions.
2. It has also been said that the interest of an applicant in obtaining or retaining a firearms licence is subordinate to considerations of public safety (Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276).
3. While the Commissioner and the Tribunal have a broad discretion to issue a licence, subsection 11(3) of the Firearms Act provides that a licence must be refused if the applicant is not a fit and proper person to hold a licence and cannot be trusted to have possession of firearms without danger to public safety. Subsection 11(5A) provides that a licence must not be issued, having regard to any criminal intelligence report or other criminal information held in relation to the person, that the person is a risk to public safety and the issuing of the licence would be contrary to the public interest. Subsection 11(7) gives the Commissioner a power to refuse to issue a licence if she considers that issue of the licence would be contrary to the public interest.

Factual background and evidence

1. Mr Welsh held a category AB firearms licence from 1998 until it was revoked on 2 October 2009. The reason for the revocation was that on 30 September 2009 Mr Welsh was issued with an AVO for the period 30 September 2009 to 29 September 2010. Section 24(1) of the Firearms Act provides for automatic revocation in these circumstances.
2. Mr Welsh is a cattle farmer and states that he needs a firearms licence in order control vermin and to deal with animals which need to be put down humanely. He states that he has had to rely on neighbours to do this for him since his licence was revoked in 2009.
3. As noted above, in this matter, the issues for consideration concern Mr Welsh's past conduct in relation to his brother and incorrect information provided on the 2019 and 2021 application forms submitted by him. It is these matters that lead the Commissioner to assert that he is not a fit and proper person to hold a licence and it is not in the public interest for him to hold a licence.

The AVO and Mr Welsh's conduct

1. The background to the Commissioner's concerns in relation to Mr Welsh's conduct towards his brother is set out in COPS Events dated 26 March 2008 and 9 June 2009, culminating in the AVO issued on 30 September 2009.
2. According to the documents Mr Welsh and his brother, Bernard Welsh, had a long running dispute after the death of their father in 1999 over ownership of the family farm. The brothers live next door to each other. It appears that there were accusations on both sides of harassment, aggression and abuse. The March 2008 COPS Event records an altercation between Mr Welsh and his brother in mid-March 2008 in which Mr Welch is described as "the victim" who alleged he was assaulted by his brother. Other parts of the COPS Event record different details supplied to police by Bernard Welsh who painted Mr Welsh as the aggressor. Mr Welsh states that Police acknowledge that there are conflicting versions of what happened. It seems that no charges arose out of the incident and the parties were referred to mediation through the Community Justice Centre.
3. The June 2009 COPS Event relates to an incident at the 100th anniversary ball at the Wandella Hall. A complaint was made by Bernard Welsh against Mr Welsh who he alleged called him a "whore fucker" and challenged him to a fight. Mr Welsh was allegedly intoxicated at the time, a fact Mr Welsh denies. Mr Welsh is alleged to have said to his brother: "If you do not want to sort it out here and now I can sort it out with my gun". Bernard Welsh and his wife left the ball and he later made a complaint to police. He sought an AVO against Mr Welsh telling police he feared that, based on past history, Mr Welsh would continue to verbally abuse him and his wife. He said he did not believe Mr Welsh would shoot him but believed he may use the gun to intimidate him and his wife. Mr Welsh also made a complaint to police arising out of this incident.
4. It is this incident which led to the AVO naming Mr Welsh as the defendant. The protected persons are Bernard Welsh and, as I understand it, his wife and child. Mr Welsh says that he did swear at his brother but states he did not mention a gun during the incident and that his brother later admitted that he had not mentioned a gun. Mr Welsh said he did not defend himself against the AVO as he did not wish to subpoena his mother as a witness.
5. Another COPS Event dated 29 June 2009 concerns allegations by Mr Welsh against Bernard Welsh of malicious damage.
6. Mr Welsh said at the hearing that he no longer has any issues with his brother, although they are still not on good terms. He also stated that his partner communicated with Bernard Welsh when fires came through the area in 2020 with no issues. He denies that there is any risk that he would use a firearm against his brother.

Applications for firearms licence

1. On 14 November 2019 Mr Welsh lodged an application for a category AB firearms licence (the 2019 application). That application was refused because 10 years had not elapsed between the issuing of the AVO and the application for the licence. Relevantly, s 11(5)(c) of the Firearms Act provides that a licence must not be issued to a person who is subject to an apprehended violence order or interim apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to an apprehended violence order (other than an order that has been revoked).
2. In the 2019 application for the licence Mr Welsh answered "no" to the following questions:

• Have you in NSW or elsewhere being refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked?
• Have you in NSW or elsewhere within the last ten years been the subject of an Apprehended Violence Order (other than an order which was revoked) or an injunction order by the Family Court, or presently subject to an Interim Apprehended Violence Order?

1. There is no dispute that these two answers were incorrect. The fact that Mr Welsh had provided incorrect answers, however, did not form the basis of the Commissioner's rejection of the licence and it was refused simply on the ground that 10 years had not elapsed since the AVO had been issued. Mr Welsh states that when he made the application he thought the 10 year period had expired but he was a few weeks too early. He said that, after the application was lodged, he received a telephone call (presumably from the Firearms Registry) and the woman told him that it was too soon for him to reapply for the licence. He also said that his partner helped him fill out the form on the computer and they both thought that the questions all referred to events in the past 10 years, not a longer period. Mr Welsh also stated that he had not understood he had been issued with an AVO and thought it was a court order.
2. Mr Welsh again applied for a category AB licence on 27 April 2021 (the 2021 application). In the 2021 application Mr Welsh answered "no" to the following questions:

• Have you previously held a NSW firearms licence under the current Firearms Act 1996?
• Have you ever had an application for a licence or permit refused under the Firearms Act 1996?
• Have you ever had a firearms licence or permit suspended or revoked, whether in NSW or elsewhere?

1. Again, there is no dispute that these answers were incorrect. The 2021 application was refused on the basis that issuing a licence would be contrary to the public interest because Mr Welch provided false and misleading information.
2. Mr Welsh said that in filling out the application form online, his partner sat opposite him at the table and read out the questions to him. She entered his answers into the computer as he does not use a computer. He said he did not intentionally answer the questions incorrectly. He said that both he and his partner thought the questions were referring to the situation in the last 10 years. He stated this was an honest mistake. Mr Welsh said that he had no reason to lie on the form as he had completed his ten years without a licence.
3. In relation to both the 2019 and 2021 application, the Commissioner states that the questions are very clear and submits that either Mr Welsh has been dishonest or, at the very least, careless, in his answers.
4. In both the 2019 and 2021 applications Mr Welsh signed a declaration that he understood that it is a serious offence under the Firearms Act to make a statement or provide information that he knew to be false or misleading and he certified that all the information contained in the applications was true and correct in every detail. The Commissioner submits, in relation to Mr Welsh's evidence at the hearing that his partner entered his answers into the computer, that, as Mr Welsh did not personally fill out the application forms, he made a false declaration that he knew the information was true and correct. Mr Welsh states that the form contains the answers he supplied to his partner to input into the computer.
5. The criminal history provided by the Commissioner for Mr Welsh shows that the only conviction he had was a fine and 1 month disqualification from driving for low range PCA in 1989 when he was 21 years old. No other information has been provided that Mr Welsh has come to the attention of the authorities in any other way.

Consideration

1. The Commissioner relies on both Mr Welsh's behaviour leading to the AVO and the incorrect information supplied in the 2019 and 2021 applications to argue that he is not a fit and proper person to hold a forearms licence. Both matters are also relied upon to support the Commissioner's submission that it is not in the public interest for Mr Welsh to hold a licence.

Fit and proper

1. Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence (Smith v Commissioner of Police, NSW Police Force [2014] NSWCATAD 184.
2. It is generally accepted that what is fit and proper needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake (AJO v Director-General of Transport [2012] NSWADT 101 at [26]; Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82]).
3. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said: 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.
4. Consideration of whether a person is fit and proper can involve an assessment of their honesty (Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 at 156-157). 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.
5. In the context of firearms licensing, the Tribunal is required to form a positive state of satisfaction that an 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" (Commissioner of Police, New South Wales Police Force v EMB [2021] NSWCATAP 63 at [45]).

The public interest

1. What is meant by the term "the public interest" has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court stated at 681: "The purpose of the reference to 'public interest' is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation."
2. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], the Appeal Panel considered that the "public interest" is an inherently broad concept providing the decision maker with the ability to have regard to a wide range of factors in exercising the discretion to refuse or revoke a firearms licence. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] the Appeal Panel said that: "The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system."
3. In Cusumano v Commissioner of Police [2001] NSWADT 50 at [23] Deputy President Hennessy stated: "There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act."
4. Importantly, s 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community's interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at [27-28] Deputy President Hennessy said that in terms of public safety: "27…The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. 28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk."
5. That case dealt with whether the applicant was a "fit and proper person" to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at [130] - [134].
6. The question of risk is not, however, to be approached in an absolute or mechanistic way, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [64] - [66]; Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315 at [62]-[64]. The question is whether there is in all the circumstances a real and appreciable risk to the public: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 at [74]; Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124 at [58].

Conclusions

1. The Commissioner considers that Mr Welsh's personal history supports a conclusion that there is a real risk of misuse of the possession of a firearm by him. She states that the misuse may result in him inappropriately using a firearm to aggravate a violent incident, or otherwise bolstering him should he be confronted or upset.
2. In her submissions the Commissioner emphasises the remark allegedly made by Mr Welch during the June 2009 incident where he reportedly said "if you do not want to sort it out here and now I can sort it out with my gun". The Commissioner states that the comment, when taken in the context of the fact that Mr Welsh owned a firearm at the time, was one of real significance and demonstrated that he is willing to rely on his possession of a firearm to aggravate interactions with others when confronted or upset. The Commissioner notes that this remark and the subsequent AVO form part of the factual matrix and relevant context leading to the revocation of Mr Welsh's firearms licence in 2009.
3. Mr Welsh denies making this comment. He also states, although there is no corroborating material before the Tribunal, that Bernard Welsh subsequently acknowledged he did not in fact make this comment. Unfortunately, the documentary evidence provided in these proceedings does not contain any information, other than the conflicting stories of statements made by Mr Welsh and his brother as reported by the police in the relevant COPS Events, concerning the basis upon which the AVO was issued or upon what evidence it was based. Mr Welsh's evidence is that he did not contest the AVO as he did not wish to call his mother as a witness.
4. The Commissioner, while acknowledging that Mr Welsh denies making the comment, invited me to make a finding that he in fact did so or may have done so. It is not possible for me, on the state of the evidence, to draw a conclusion that Mr Welsh made the comment. He may have done so and there is no doubt that an AVO was issued against him naming his brother and others as protected persons.
5. However, the events occurred 13 years ago and the Commissioner has not referred to any record of the AVO being broken. As acknowledged by the Commissioner, no subsequent AVO has been issued and no other similar conduct has come to the attention of the police. Mr Welsh also has no criminal record apart from a low range drink driving offence 33 years ago when he was young and there is no evidence he did not keep proper control of his firearm before the licence was revoked in 2009. In addition, there are no reports or accusations levelled at Mr Welsh that he has ever in fact misused or attempted to misuse a firearm against his brother or anyone else. Furthermore, I accept Mr Welsh's statements that he and his brother have gotten on with their lives since that time.
6. Overall, I consider, Mr Welsh's past behaviour in relation to his brother, including the AVO issued in 2009, does not now support a conclusion he is not a fit and proper person who can be trusted to possess firearms without danger to public safety or to the peace.
7. In relation to the incorrect information provided by Mr Welsh in the 2019 and 2021 applications, there is no doubt that a person must exercise due diligence in completing the application form. The fact that the contents of the application must be correct is emphasised in the declaration required of applicants that the contents are "true and correct in every detail". I also note that s 70 of the Firearms Act makes it an offence to knowingly provide false and misleading information in a licence application.
8. The Commissioner refers to the decision of the Tribunal in Kogias v Commissioner of Police [2020] NSWCATAD 297 where the Tribunal drew attention to one of the expressed objects of the Firearms Act which is "to establish an integrated licensing and registration scheme for all firearms": s 3(2)(b). At [102] the Tribunal stated: Specifically in the context of firearms licensing, the tribunal stated in Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240, [26], that "the system of firearms licensing and the requirement to provide personal information has been developed to ensure that the public is protected as required by the principles and objects set out in section 3 of the Firearms Act". That such information must be true and correct is made explicit by s 70, which states that "A person must not, in or in connexion with an application under this Act or the regulations, make a statement or provide information that the person knows is false or misleading in a material particular…."
9. The Tribunal went on to say at [114]: The functioning of a proper system of firearms licensing is one of the stated objectives of the Firearms Act, which depends on applicants providing true and correct information in a comprehensible manner. That is the reasoning behind s 70. It is nothing to the point to claim that the registry already has access to information about prior revocations or refusals. Locating it might require the registry to conduct an investigation into the license history of every applicant, whereas it should be able to rely on the veracity of persons having dealings with it in determining whether to give an application closer attention.
10. I agree with the sentiments expressed by the Tribunal in Kogias. In that matter the Tribunal ultimately found that, due to the applicant's "haphazard and negligent (at best) attitude to compliance with the legislative provisions concerning the supply of information by applicants", it was not in the public interest for a firearms licence to be issued to him.
11. The Commissioner made much of the fact that Mr Welsh committed the same or similar errors in both applications and that the questions were clear and simple. In this matter, I am not satisfied that the errors made by Mr Welsh were made deliberately in order to mislead or to bolster his chances of regaining his licence.
12. In 2019 Mr Welsh stated "no" when asked if he had ever had a firearms licence revoked. There is no doubt that Mr Welsh was aware that his firearms licence had been revoked on 2 October 2009. Mr Welsh has insisted that he believed the questions on the application form were directed to events in the past 10 years. While that is not the case, I have no reason to doubt the genuineness of his belief. That 10 years had not in fact elapsed since the revocation is dealt with below in relation to the AVO.
13. In the 2019 application he stated that he had not been, within the last 10 years, the subject of an AVO. Again this was incorrect and Mr Welsh was aware of the AVO. It is apparent from the circumstances that, for whatever reason, he believed the 10 years had expired when he applied for the licence in 2019. I accept his explanation that this was an honest mistake.
14. Turning now to the 2021 application, Mr Welsh said that he had never had a licence refused or revoked. Again, this was incorrect. The 2019 application had been refused as the 10 year period following revocation arising from the AVO had not expired. Mr Welsh states he simply made a mistake and thought the questions referred to events only in the past 10 years. It is not clear whether he understood that the 2019 application had been refused or whether he simply believed, as informed by the caller from the Firearms Registry, that he had reapplied for the licence too soon, rather than the licence actually being refused.
15. In the 2021 application Mr Welsh also said he had never held a firearms licence, a statement which was not true. As noted above, his explanation for the error was that he thought the questions were all referring to events in the last 10 years. I accept Mr Welsh's explanation for the error and do not consider that he deliberately provided a false answer. My view is supported by the fact that Mr Welsh had no incentive to lie on the form. He had waited out the 10 year period and, in his words, had "done his time" before seeking to regain the licence.
16. I am not satisfied that Mr Welsh acted with intent or, as stated above, deliberately gave false answers to questions on the form. The Commissioner raised concerns about Mr Welsh's evidence that his partner was the person who actually entered the data into the electronic form and submits that, as Mr Welsh did not personally fill out the application forms, he made a false declaration that he knew the information was true and correct. The mere fact that another person made the keystrokes when filling out an electronic form does not mean that the applicant cannot certify to the correctness of the information provided. Mr Welsh's evidence is that he was aware of the answers he gave. I do not consider that he has engaged in conduct contrary to s 70 of the Firearms Act.
17. The Commissioner submits that by providing incorrect answers to questions which on her view were simple and clear, Mr Welsh has demonstrated a lack of care for the importance of the provisions of the licencing regime. I accept Mr Welsh's evidence that he made honest mistakes. He did not find the questions as clear as the Commissioner supposes. I consider he did act with a lack of care but do not believe he was negligent or that he has demonstrated a tendency or willingness not to comply with licensing requirements.
18. I am not satisfied, based on his past behaviour, the AVO or his incorrect answers in filling out the 2019 and 2021 application forms, either separately or cumulatively, that it is not in the public interest to issue Mr Welsh with a firearms licence.
19. It follows that the correct and preferable decision is to set aside the decision of the Commissioner to refuse Mr Welsh's firearms licence.

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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: 23 December 2022