Wombey v Commissioner of Police, NSW Police Force

The issue for determination

1. The issue in this case is whether the correct and preferable decision is to affirm, vary or set aside the Respondent's decision.
2. This requires consideration of whether it is contrary to the public interest for the Applicant to hold a firearms licence.

The Tribunal's Approach

1. The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all material first considered, together with any further relevant material to either confirm the original decision, vary it, or set it aside and substitute another. The Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law: section 63 of the Administrative Decision Review Act 1997 ("the ADR Act").
2. The Tribunal makes its own decision in place of the Respondent's, and there is no presumption that the Respondent's decision is correct.
3. These are not adversarial proceedings in which the Applicant carries an onus of proof. By making the application, the Applicant triggers a process of merits review by the Tribunal. She does not take on the responsibility of having to prove a case, nor does she cause the Respondent to have to prove a case. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities.
4. Under section 38(2) of the Civil and Administrative Tribunal Act 2013, 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.
5. The Tribunal must exercise its discretion in determining a 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 paragraph [23]. The discretion must be exercised keeping in mind the activities which are authorised by a licence under the Act.

Applicable legislation

1. Section 9 of 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 by section 75 of the Act. The Tribunal's jurisdiction includes review of decisions by the Respondent 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. 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. The Commissioner, and therefore the Tribunal, has discretion in regard to the issues to be decided in this matter. The Act provides no guidance on how that discretion should be exercised. However, in Minister for Immigration and Citizenship v Li [2013] 297 ALR 225, the majority of the High Court stated at paragraph [67]: [W]here discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority [[1998] HCA 28] requires nothing less. ...
6. Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if she considers that issue of the licence would be contrary to the public interest.
7. Section 12(1) of the Act provides that the Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm. The Applicant's application for a firearms licence nominated her "genuine reason" for a firearms licence as "Sport/Target Shooting". In support of the "Sport/Target Shooting" reason, the Applicant identified that she is a member of a shooting club, specifically, the Sporting Shooters' Association of Australia.
8. Section 24 of the Act provides: Revocation of licence … (2) A licence may be revoked - (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or … (d) for any other reason prescribed by the regulations.
9. Clause 20 of the Firearms Regulation 2017 ("the Regulation") 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. Clause 29 of the Regulation provides that: 29 Sport/target shooting A licence that is issued for the genuine reason of sport/target shooting is subject to the following conditions (in addition to any other conditions to which the licence is subject) - (a) the licensee must comply with any applicable requirements of Part 10 (Participation requirements for club members), (b) the licence does not authorise the use of a firearm except at a shooting range approved under Part 8 or under the authority conferred by clause 33 (Licences and permits extend to authorise sighting in, patterning and related activities).
11. Clauses 105 and 107 in Part 10 of the Regulation provide that: Part 10 Participation requirements for club members 105 Definitions In this Part - approved club for a particular category of licence means an approved shooting club (including an approved pistol club), approved hunting club or approved collectors' society or club of which the holder of a licence of that category is required to be a member under this Part. competitive shooting match means a shooting activity in which scores are kept and results recorded. compliance period for an approved club means each consecutive 12-month period that starts on the day of the year that the club has determined to be the start of its compliance period for the purposes of participation by club members. participation in a shooting activity includes, in the case of a competitive shooting match, officiating at such a match. shooting activity of an approved club means the following - (a) a shooting activity that is conducted by the club at the club's shooting range, including a competitive shooting match, shooting training and target practice at the club's shooting range, (b) firearms safety training conducted by the club at the club's shooting range, (c) a competitive shooting match held at a shooting range other than the club's shooting range where the match is endorsed by the club (including such a match that is conducted outside NSW or outside Australia). ... 107 Participation requirements for sport/target shooters (other than pistol shooters) The holder of a licence issued for the genuine reason of sport/target shooting (not being a category H licence) must be a member of at least one approved shooting club (other than a pistol club) and must, during each compliance period for such a club of which the person is a member, participate in not less than 4 shooting activities of an approved shooting club (other than a pistol club) whether or not of a club of which the person is a member.
12. The Applicant is a member of the Sporting Shooters' Association of Australia ("SSAA")
13. Clause 31 of the Regulation provides that a licence that is issued for the genuine reason of recreational hunting/vermin control is subject to the condition that the licensee must comply with any applicable requirements of Part 10 (Participation requirements for club members).
14. Clause 108 of the Regulation provides: 108 Participation requirements for member of approved hunting club (1) The holder of a licence issued for the genuine reason of recreational hunting/vermin control to a member of an approved hunting club must be a member of at least one approved hunting club and must, during each compliance period for such a club of which the person is a member, participate in no less than 2 hunting club events. (2) This clause applies only where membership of an approved hunting club is the sole ground on which the licensee has established the genuine reason of recreational hunting/vermin control. (3) In this clause - hunting club event means any event approved by any approved hunting club (whether or not a club of which the licensee is a member) involving hunting, shooting or firearms safety training.
15. Clause 15(1) of the Regulation provides that, if a licensee's genuine reason for possessing or using a firearm under the authority of a licence can no longer be established by the licensee, the licensee must, within 14 days after becoming aware that the licensee has ceased to have that genuine reason, notify the Commissioner of that fact in writing or in such other manner as may be approved. Clause 16 of the Regulation provides for the requirement to notify the Commissioner of changes of particulars other than address.

Public interest

1. Section 11(7) of the Act provides: 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.
2. As noted, the Respondent contends that it is not in the public interest for the Applicant to hold a firearms licence. 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."
3. 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.
4. "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.
5. 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.
6. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at paragraph [28] Hennessy DP said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Although Ward was a case on the "fit and proper person" test, the formulation has been held to also apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at paragraph [23].
7. 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.

Material before the Tribunal

1. The Respondent relies on a bundle of material filed pursuant to section 58 of the ADR Act ("the section 58 documents)"). This material includes a number of records held in the Respondent's electronic database ("COPs"). Detective Senior Constable Joshua Downy provided a statement annexing a number of photographs and documentation related to the Respondent's case.
2. The Respondent also relies on material received anonymously via Crimestoppers and various social media posts which the Respondent alleged show that, on 24 July 2021, the Applicant attended an unlawful gathering known as a "Rally 4 Freedom" protest ("the rally"). The Respondent's solicitor, Ms Norquay, also provided written submissions.
3. The Applicant relies on her own evidence. She appeared at the hearing and gave evidence. She also relies on her written submissions and a number of character references.

The Respondent's case

1. The Respondent contends that the Applicant has not met the participation conditions of her licence. The Respondent relies on records of the SSAA which indicate the Applicant's attendance records for sport/target shooting in the following compliance periods as: (a) 2016/2017, two attendances recorded; (b) 2017/2018, three attendances recorded; (c) 2018/2019, one attendance recorded; (d) 2019/2020, no attendances recorded; and (e) 2020/2021, no attendances recorded.
2. Records of the SSAA indicate the Applicant's attendance records for recreational hunting/vermin control in the following compliance periods as: (a) 2018/2019, one attendance recorded; (b) 2019/2020, no attendances recorded; and (c) 2020/2021, no attendances recorded.
3. The Respondent submits that it is a condition of the Applicant's licence that she meets the prescribed participation requirements. She has failed to participate in at least 4 target attendances and 2 hunting attendances during a number of relevant compliance periods. The Respondent further submits that failure to meet the prescribed participation requirements is a contravention of clauses 107 and 108 of the Regulation.
4. The Respondent further submits that, when the Applicant last reapplied for her firearms licence in 2020, she certified that she could satisfy the legislative requirements and produce evidence of her genuine reasons as specified within the application.
5. The Respondent notes that clause 15(1) of the Regulation provides that a licensee must notify the Commissioner within 14 days after becoming aware that the licensee has ceased to have that genuine reason. The Applicant failed to give that notification.
6. The Respondent also contends that the Applicant was present at a rally known as the "Rally 4 Freedom" in Victoria Park on Broadway on 24 July 2021. The rally was in protest against COVID-19 lockdown and stay at home orders. Participation in the rally was in contravention of the Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021 which prevented persons living or working in the Greater Sydney area from being away from their place of residence without reasonable excuse and prevented outdoor public gatherings of more than 2 persons.
7. The Respondent further contends that Police informed the group who attended the really that they were committing an offence by breaching a Public Health Order. Those attending the rally were given an opportunity to comply with the order and disperse from the location. It is alleged that the Applicant attended the rally did not comply with the direction.
8. The Respondent submits that in the circumstances the Tribunal should find that it is not in the public interest for the Applicant to hold a firearms licence. That being the case, the revocation should be affirmed.

The Applicant's case

1. The Applicant attended the hearing and gave evidence. She also provided written submissions in support of her case.
2. The Applicant does not dispute that she failed to meet the participation requirements. However, she provided a detailed explanation for this failure. She explained a series of personal experiences that impacted on her life. These included the impact of Covid, illness, pregnancy, her mother's illness and death, her husband's work-related issues and general family stresses. The Applicant's evidence is that she was unable to meet the participation requirements because of these circumstances.
3. Nevertheless, she did not satisfy the participation requirements and she did not notify the Respondent that she was unable to meet those requirements. She also disputed that the legislation makes reference to the participation requirement or the obligation to notify the Respondent if she is unable to satisfy a condition of her licence.
4. She gave evidence that she has read the Act and the Regulation and that she now understands the obligations imposed on a licence.
5. In regard to the rally, the Applicant gave evidence that she had a valid reason for being in the vicinity of the rally but she stated that she did not attend the rally.
6. The Applicant disputes that any of the material from her social media that has been filed confirms the she attended the rally.
7. In the circumstance the Applicant submits that the correct and preferable decision is to set aside the revocation.

Discussion

1. Detective Senior Constable Joshua Downy's evidence was of little assistance. He had no personal knowledge of any of the issues that were in contention. As such he was unable to provide evidence to contradict the Applicant's evidence in regard to what took place on the day of the rally. That leaves the Respondent with either material that was provided anonymously via Crimestoppers and assumptions in regard to the accuracy of that material, the material obtained on the Applicant's social media pages or information that is held in relation to the Applicant on the Respondent's computerised databases ("COPS"). No witnesses were provided to allow the Applicant to challenge the accuracy of any of the material held in COPS.
2. The Applicant has challenged the accuracy of some of the COPS entries. A simple example is the description of the Applicant that is held in the records. One entry describes the Applicant's tattoos. The Applicant's unchallenged evidence is that she does not have, nor has she ever had, any tattoos. Her explanation of the inconsistency is that the entry must refer to someone else.
3. As noted, the Applicant's evidence is that she did not attend the rally. The Respondent has not provided any evidence that she was at the rally. The Respondent has merely accepted that the material that was provided anonymously via Crimestoppers is accurate and asserts that this is supported by the social media posts. The Applicant contends that the Respondent's assertions are not accurate. She was cross-examined on the issue and her evidence did not vary on these points.
4. It is not in dispute that the Applicant was given an infringement notice in relation to her alleged attendance at the rally on 24 July 2021. It is also not in dispute that the infringement notice was withdrawn.
5. In regard to the material that has been posted on the Applicant's social media pages, the Applicant has correctly asserted that while her posts are supportive of the rally, there is nothing in those posts that indicates that she attended the rally. As I have noted, her evidence is that she did not attend the rally.
6. A photo that is included in those posts purports to show the Applicant at a rally. The Respondent has assumed that the photo depicts the Applicant attending the rally on 24 July 2021. The Applicant's unchallenged evidence is that she has attended many protest rallies and that the photo was taken at a different rally, possibly a lawful rally in Hyde Park.
7. She was unchallenged in regard to her assertion that she was authorised to be in the area of the rally on 24 July 2021 to attend a medical appointment in Newtown.
8. On the basis of the material before me, I cannot be satisfied that the Applicant attended the rally on 24 July 2021. That being the case, no weight can be given the Respondent's assertions that she breached a public health order and failed to comply with directions of Police.
9. The Respondent also contends that the Applicant failed to meet participation requirements for sports/target shooting and recreational hunting and has contravened provisions of the Act and the Regulation. The Respondent also contends that the Applicant has contravened provisions of the Regulation regarding the requirement to notify the Commissioner that her genuine reason for possessing a firearm could no longer be established.
10. As noted above, the Applicant provided evidence in regard to her personal circumstances. Her explanation provides a plausible explanation for her failure to meet the participation requirements. However, it is not in dispute that she did not notify the Respondent that she was unable to comply with the condition of her licence.
11. The obligation to comply with conditions of a licence has been discussed in a number of decisions of this Tribunal. It is an object of the Act that each person who possesses or uses a firearm under the authority of a licence proves a genuine reason for possessing or using the firearm, and the relevant conditions are an essential part of maintaining that genuine reason. The Regulation imposes participation requirements on the Applicant as the holder of a licence and these conditions are fundamental and relevant to the her genuine reasons for holding a firearms licence.
12. In Todorovski v Commissioner of Police [2019] NSWCATAD 192 the Tribunal noted at paragraphs [129] - [130: 129. The applicant has been in breach of the participation requirements in the Regulation since the 2011/2012 reporting period. No explanation for this lapse has been forthcoming. The tribunal has held that the legislation requires strict compliance: Oliver v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 95, [23]. 130. Presumably some latitude may be extended where, as here, the regulatory requirement is not directly related to safety. But the admitted total disregard of the requirement over a period of five years in this case is a substantial dereliction that cannot be overlooked. In those circumstances it cannot be in the public interest for the licensee to continue to hold the licence.
13. Todorovski v Commissioner of Police has been followed in a number of other matters in the Tribunal. See for example Kassem v Commissioner of Police [2021] NSWCATAD 213 from paragraph [53]; Nepotu v Commissioner of Police, NSW Police Force [2020] NSWCATAD 101 at paragraphs [40] - [42] where the Tribunal stated: 40. When applying for a firearms licence an applicant must demonstrate a 'genuine reason' in support of their application. The Applicant signed a declaration confirming that she understood her obligations under the firearms legislation, undertaking she would participate in target shooting and recreational shooting at her nominated club. The Applicant was granted her firearms licence on the basis of this undertaking. 41. It is trite to say that holders of firearms licences must understand and comprehend the requirements of the Act and the Regulation, and must also act in accordance with them. 42. The Applicant however has failed to maintain her genuine reason for her firearms licence as she has failed to meet her annual obligations under the Regulation, as set out in clauses 107-108. Furthermore, she had not done so for a number of years. The Applicant has shown an ongoing disregard for the legislative requirements and the strict controls around firearms licence, which is a substantial dereliction which cannot be overlooked: Todororovski v The Commissioner of Police [2019] NSWCATAD 192 at [130]. I have
14. It is important that licensees meet their participation requirements because it provides an avenue whereby a licensee is able to keep abreast of legislative changes and maintain an awareness of their obligations under the legislation.
15. This is not a situation where the Applicant showed contempt for the regulatory regime. However, if she is to hold a firearms licence it is important that she understands and comprehend the requirements of the Act and the Regulation. It is apparent from her submissions that she is not generally aware of her obligations as a licensee. She has given evidence that she has read the Act and Regulation and is now fully aware of the legislative requirements. However, it is apparent from her submissions that that is not the case. For example, she submitted that the legislation does not require her to satisfy certain requirements when those requirements are specified in the Regulation.
16. Clearly, the Applicant is not aware of some conditions that attach to the licence. If she is not aware of her obligations I cannot be satisfied that she would comply with those obligations if she were again given the privilege of having access to firearms.
17. The licensing regime is directed towards protecting the public by identifying the possible risks to the public's safety, and then making decisions that are consistent with the need to reduce any risks to a minimum.
18. In these circumstances I agree with the Respondent that it is not in the public interest for the Applicant to hold a firearms licence when she is unable to comply with the conditions of the licence.
19. I am satisfied that it would be contrary to the public interest to do so unless she takes steps to familiarise herself with the obligations on a licensee. I am not satisfied that there is virtually no risk to public safety if the Applicant is given the privilege of having access to firearms.
20. That being the case, it is my view that the correct and preferable decision is to affirm the decision to revoke the Applicant's Category AB firearms licence.

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: 04 April 2023