Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Balle v Commissioner of Police [2021] NSWCATAP 389 Hearing dates: 29 October 2021 Date of orders: 02 December 2021 Decision date: 02 December 2021 Jurisdiction: Appeal Panel Before: I R Coleman SC ADCJ, Principal Member E Bishop, Senior Member Decision: The appeal is dismissed. Catchwords: APPEAL – Administrative review – application for firearms licence – whether in public interest Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 49, 64, 80(2)(b) Firearms Act 1996 (NSW), ss 3, 11 Cases Cited: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 Edwards v Noble (1971)125 CLR 296; [1971] HCA 54 Gronow v Gronow (1979) 144 CLR 513, [1979] HCA 63 Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kocic v Commissioner of Police (2014) 88 NSWLR 159; [2014] NSWCA 368 Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379; [2012] HCA 36 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 Category: Principal judgment Parties: Geoffrey John Balle (Appellant) Commissioner of Police, NSW Police Force (Respondent) Representation: Solicitors: Hartmann & Associates (Appellant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2021/00207883 Publication restriction: Pursuant s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (CAT Act), the publication of the Confidential Material, or matters contained in the Confidential Material is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2021] NSWCATAD 187 Date of Decision: 8 July 2021 Before: Naida Isenberg, Senior Member File Number(s): 2021/00021696 REASONS FOR DECISION Summary 1. On 28 May 2020, the Appellant applied for a Category AB firearms licence under the Firearms Act 1996 (NSW) ("Firearms Act"). That application was refused by the Commissioner of Police ("Commissioner") on the basis that it was not in the public interest for him to hold a firearms licence: s 11(7) of the Firearms Act. 2. The Appellant applied to the Tribunal for a review of the decision. The Tribunal affirmed the Commissioner's decision to refuse the firearms licence. The Appellant now appeals from the Tribunal's decision. 3. For the reasons set out below we have dismissed the appeal. Procedural History 1. It is relevant to set out the procedural history in the Tribunal. 2. On 2 March 2021, the Tribunal made directions in respect of the Commissioner's application for various confidentiality and non-disclosure orders under ss 49 and 64 of the Civil and Administrative Tribunal Act 2013 (NSW) ("CAT Act"). 3. The orders sought included that: 1. the Commissioner's application be heard in the absence of the Appellant and the public; 2. the Commissioner not be required to lodge confidential evidence and submissions ("Confidential Material") with the Tribunal; 3. the publication of any evidence in the private hearing, the confidential material and any information or matters in the Confidential Material be prohibited; and 4. disclosure of the Confidential Material and information contained in the Confidential Material be restricted to the Commissioner and the Tribunal. 1. The Commissioner filed submissions and an "open" affidavit of Ms Owen in support of the application. These documents were provided to the Appellant. 2. On 31 March 2021, the Tribunal made the confidentiality and non-disclosure orders sought by the Commissioner after an ex parte hearing. 3. The Commissioner subsequently tendered a bundle of Confidential Material before the Tribunal and relied on it at the hearing on 30 June 2021. 4. The effect of the orders made by the Tribunal is that there was Confidential Material before the Tribunal to which the Appellant did not have access. In addition, part of the substantive hearing on 30 June 2021 before Senior Member Isenberg was a "closed session", conducted in the absence of the Appellant and his legal representative. 5. Further, there were two confidential paragraphs in the Tribunal's Reasons for Decision which were not for publication. 6. Mr Kable, who appeared for the Appellant before Senior Member Isenberg, and before us at the hearing of this appeal, confirmed that the Appellant elected not to file and serve any submissions in response to the Commissioner's application referred to at [5]-[6] above, and had raised no objection at that time, nor at any subsequent time, to the confidentiality and non-disclosure regime. 7. It was accepted that the whole of the evidence before Senior Member Isenberg included the Confidential Material which Mr Kable accepted might have been a "knock-out blow" to the case. 8. Consent was given to the continuance of the confidentiality regime for the appeal. 9. Consequently, and necessarily, the Appellant's appeal and his submissions are made without the benefit of the Confidential Material. The circumstances in which that occurred, as we have detailed them earlier, were taken into account by the Tribunal. Although the Appellant has never challenged the orders with respect to the Confidential Material, and no ground of appeal agitated by the Appellant involved any adverse inferences with respect to that material, the Tribunal satisfied itself that the Appellant had been afforded natural justice with respect to the Confidential Material. The Appeal 1. The internal appeal is brought as of right on any question of law, and with permission (or "leave") on any other grounds: CAT Act, s 80(2)(b). 2. On an appeal on a question of law, the exercise of a statutory discretion, including that under s 11(7) of the Firearms Act, can only be overturned in limited circumstances: House v The King (1936) 55 CLR 499 at 505-506; [1936] HCA 40. 3. In Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 the Court of Appeal summarised the House v The King circumstances at [14] (Tobias AJA) and held that an attack on a discretionary decision must fail: "…unless it can be demonstrated that the decision maker: (a) made an error of legal principle, (b) made a material error of fact, (c) took into account some irrelevant matter, (d) failed to take into account, or gave insufficient weight to, some relevant matter, or (e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning." Grounds of Appeal 1. In the Notice of Appeal dated 16 July 2021, the grounds of appeal were stated to be as follows: "That it is an error of law in providing little weight to character references which do not refer to prior offending which occurred prior to the referees knowing the applicant. That the statement, from paragraph 37 of the judgment, 'The character references do not outweigh the Applicant's history of previous convictions and the underlying principle that it is a privilege for the use and possession of a firearm', does not consider the contextual matrix of the issues involved and cannot be used as a 'blanket' statement in the circumstances." 1. In written submissions and at the hearing, the Appellant relied on House v The King and contended that the Tribunal erred in law by: 1. failing to take into account a material consideration; and 2. the decision was manifestly unreasonable. 1. In substance, the Appellant's grounds complain that the Tribunal, in the exercise of its discretion, gave insufficient weight to the 13 character references provided in support of his case, as well as the report of psychologist Michael Kruger-Davis ("Kruger-Davis report"). 2. The second ground of appeal is, in effect, linked to the first: that the references and Kruger-Davis report were "material considerations" and to give them little weight resulted in a decision that was manifestly unreasonable. 3. The Appellant did not make an application for leave to appeal on any other grounds. During the course of the hearing of the appeal, Mr Kable confirmed that the appeal was confined to these grounds and is not brought on any alternative basis, such as inadequacy of reasons. Reply to Appeal 1. In the Reply to Appeal, the Commissioner stated as follows: "It is apparent that the Senior Member relied on the evidence considered in closed session and came to a conclusion about the correct and preferable decision. The weight placed on the references was appropriate when one considers that none of the referees demonstrated a real understanding of the Applicant's past. In such circumstances it is appropriate to place little or no weight on the reference. The Senior Member considered the cases that had been raised by the Respondent in this respect. The Appellant has not demonstrated any error of law and it is noted that leave is not sought to extend the appeal to the merits." Materials 1. In deciding the appeal, we have had regard to the following: 1. Notice of Appeal received 21 July 2021; 2. Reply to Appeal received 5 August 2021; 3. Written submissions for the Appellant dated 27 August 2021; 4. Written submissions for the Commissioner dated 29 September 2021; 5. Oral submissions made on behalf of the parties at the hearing; 6. A bundle of documents provided by the Appellant, including his statement, the Kruger-Davis report and 13 character references referred to at [7] of the Tribunal's Reasons for Decision. 7. The s 58 documents filed by the Commissioner; 8. A bundle of Confidential Material provided by the Commissioner to the Tribunal; 9. The Tribunal's reasons for decision of 8 July 2021; 10. Directions made by the Tribunal on 2 March 2021, 31 March 2021 and 6 August 2021. 11. A consolidated bundle of the confidential and non-confidential documents relied on by the Commissioner for the appeal. The Decision under Appeal 1. The Tribunal set out the relevant legislative framework at [2]-[3] of the Reasons for Decision. Reference was made to the general principles in s 3 of the Firearms Act and the Tribunal identified the relevant discretion to refuse the issue of licences in s 11(7). 2. Section 11 of the Firearms Act provides as follows: 11 General restrictions on issue of licences (cf 1989 Act s 25, APMC 4, 5, 6) (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 (b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and (c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and (d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State. … (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. 1. The Tribunal correctly noted (at [5]) that it was not restricted to consideration of the material that was before the original decision-maker and may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31. 2. The Tribunal then recorded (at [6]-[7]) the evidence that it had taken into consideration which included the s 58 documents, the Commissioner's Confidential Material, the character references, the Kruger-Davis report, the applicant's statement and evidence given at the hearing, the Northern Territory firearms licence and a certificate of attainment of the Firearms Training and Safety Course. 3. The Tribunal proceeded to address the evidence and the parties' respective submissions concerning that evidence. 4. First, the Tribunal noted the Appellant's extensive criminal history in the Northern Territory and Queensland between the period 1981 and 1994 (at [9]) and that after moving to New South Wales in 2020, he had also received a traffic infringement notice for not wearing a seatbelt (at [10]). 5. The Tribunal determined that any inferences from the fact of the convictions were given little weight as the offences occurred over 27 years ago (at [11]). 6. The Tribunal next considered the Commissioner's contention that the Appellant knowingly provided false and misleading information on his application for a firearms licence ("false declaration issue") in respect of whether or not a previous application for a firearms licence had been refused in any other jurisdiction (at [12]-[17]). It was argued that this provided a reason why it would not be in the public interest to grant the firearms licence. 7. The Tribunal was not satisfied that there was clear intent to deceive and found (at [25]) that while the Appellant failed to answer the question on the application form correctly, it was more likely than not that he was either indifferent in providing his responses or did not pay appropriate attention to the answer he was giving to the question. 8. The Tribunal then turned to "Other Matters" which included the Appellant's evidence, the character references, the Kruger-Davis report and the Confidential Material. 9. The Tribunal recorded that the Appellant: 1. gave evidence that he had not possessed any firearms since he left the Northern Territory in 1995 but that he had used firearms when he was a contractor in Kuranda when he was required to put down animals using someone else's firearm (at [27]); and 2. had not given evidence that he actually required a firearms licence for the purpose of managing his property (at [28]). 1. The Tribunal noted (at [8]) that consideration of what is in the "public interest" is informed by the underlying principles and objectives of the Firearms Act and allows for matters beyond an applicant's character to be taken into account (at [29]). 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]. 2. In assessing public safety, the Tribunal (at [30]) noted that it "…must be satisfied that there is virtually no risk": Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at [28]; Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206 at [130]. The Tribunal noted at [30] as follows: "The question of risk [to public safety] is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, but with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64]-[66]." 1. The Tribunal considered the Kruger-Davis report and concluded that it was unhelpful (at [32]). 2. The Tribunal then considered the character references. It was noted that all of the referees had known the Appellant for at least 6 years but many of them did not know him at the time of his criminal offending 27 years ago. It was also noted that the referees did not demonstrate that they were aware of his previous convictions. Only one of the referees demonstrated knowledge of just one of the Appellant's convictions in relation to making indecent phone calls to women. 3. The Tribunal recorded at [37] as follows: "Overall, the character references are considered in light of the underlying principles of the Act that possession and use of a firearm is a privilege and the strict controls are imposed to prove public safety. The character references do not outweigh the Applicant's history of previous convictions and the underlying principle that it is a privilege for the use and possession of a firearm." 1. In response to the Appellant's submission that he had an almost impossible burden of proving a near absolute negative, the Tribunal (at [39]) correctly noted that there is no such burden of proof "but that all of the evidence is weighed in the exercise of the Tribunal's discretion". 2. It was contended by the Appellant (at [40]) that "the Tribunal should have no doubt that … [he] can be entrusted with a firearm licence and that he poses no threat to either the public or himself". The subsequent two paragraphs (which are prohibited from disclosure or publication) addressed the Confidential Material. 3. [NOT FOR PUBLICATION] 4. Having considered all of the evidence, the Tribunal concluded at [43]: "In summary, while the Tribunal can never be completely satisfied that there is no risk in an applicant having a firearms licence, in the circumstances, including those identified in the confidential evidence, I am not satisfied that it is the public interest for the Applicant to hold a firearms licence." Whether the Tribunal erred on a question of law Failing to take into account relevant considerations 1. While the Appellant correctly cites the relevant principles in House v The King, his real complaint appears to be that insufficient weight was given to the character references and the report of Mr Kruger-Davis. He contends these were "material considerations" in the exercise of the discretion in s 11(7) of the Firearms Act. 2. It was also submitted that little weight was given to the references based on the fact that overall the referees did not refer to the Appellant's criminal history. It was argued that their lack of knowledge was irrelevant as the assessment of public risk is to be made today not as at 27 years ago when the offending occurred. 3. The general principle is that a decision maker in exercising a discretion will have only erred by failing to take a relevant consideration into account if it is one he or she is explicitly or implicitly bound by the statute to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40-41 (Mason J); [1986] HCA 40 ("Peko-Wallsend"). 4. The expression in "the public interest" in s 11(7) of the Firearms Act is an inherently broad concept giving the Commissioner (and the Tribunal at first instance on review) the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual: Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25]. 5. The plurality of the High Court in The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379; [2012] HCA 36 stated at [42]: "It is well established that, when used in a statute, the expression 'public interest' imports a discretionary value judgment to be made by reference to undefined factual matters. As Dixon J pointed out in Water Conservation and Irrigation Commission (NSW) v Browning, when a discretionary power of this kind is given, the power is 'neither arbitrary nor completely unlimited' but is 'unconfined except insofar as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to many objects the legislature could have had in view'." 1. In Kocic v Commissioner of Police (2014) 88 NSWLR 159; [2014] NSWCA 368 the Court of Appeal considered, among other things, the nature of the "public interest" considerations in s 11(7) of the Firearms Act. Leeming JA stated as follows at [84]: "… [Section] 11(3) and s 11(7) of the Firearms Act are both substantive. Each is a qualification upon the general power to issue a licence conferred by subsection 11(1). Subsection (3) imposes a further precondition to the exercise of the power to issue a licence; it amounts to a mandatory ground for refusal. Subsection (7) creates an additional discretionary ground for refusal, and it follows from its opening words that even if none of the grounds for mandatory refusal in the section apply, the discretionary power to do so remains available, if the Commissioner considers that the issue of the licence would be contrary to the public interest." 1. Leeming JA at [93] and White J at [106] agreed that "the matters that can be taken into account in making an assessment of the public interest pursuant to s 11(7) are not limited to matters not otherwise dealt with by s 11(3)". (See also Basten JA at [41].) 2. We do not consider that the character references and the report of Mr Kruger-Davis in exercise of the Tribunal's discretion in s 11(7) of the Firearms Act, were mandatory considerations in the Peko-Wallsend sense, or that they were required to be given greater weight in the exercise of the discretion. 3. This ground does not raise a question of law. 4. In any event we agree with the approach of the Tribunal to this evidence. 5. The Tribunal at [33]-[41] set out an evaluation of the character references in light of the arguments of both the Appellant and the Commissioner in relation to those references. The Tribunal weighed those references against the Appellant's criminal history (of which the referees did not demonstrate any knowledge) and concluded on balance that the criminal convictions outweighed the character references. 6. In respect of the Kruger-Davis report, the Commissioner objected to the tender of the report before the Tribunal. The Commissioner submitted that the report was based on matters which were not addressed by the Appellant in evidence, such as that he required the firearms licence for pest control on his property. Further, it was argued that the report was inconsistent with parts of the Appellant's own evidence: Mr Kruger-Davis told the Tribunal that the Appellant was remorseful for making a false declaration on his firearms licence whereas the Appellant denied knowingly making a false declaration. Overall, it was submitted that the report was not relevant to the question of whether it was in the public interest for the Appellant to hold a firearms licence. 7. The Appellant contended that the report should be admitted subject to questions of weight and the Tribunal admitted it on this basis. 8. For all the reasons contended by the Commissioner, it was unsurprising that the Tribunal found the Kruger-Davis report unhelpful and gave it little weight in the exercise of the discretion given: 1. Mr Kruger-Davis is not the Appellant's treating psychologist; 2. the report did not refer to any previous medical history or medical records but relied on the recount or history provided to him by the Appellant, some of which was not mentioned in his own evidence; 3. the report appeared inconsistent with the Appellant's own evidence in respect of the false declaration issue; 4. Mr Kruger-Davis only carried out one examination of the Appellant, being a Mental Status Examination which was based on the answers given by the Appellant; 5. Mr Kruger-Davis concluded that the Appellant suffered no mental health disorders, personality or substance abuse disorders, in circumstances where his mental health was not an issue in the proceeding. 1. There was no error of law arising from the question of weight given to the Kruger-Davis report and character references. The Tribunal appropriately weighed this evidence against the other evidence, including the Confidential Material, in reaching the conclusion that it was not in the public interest for the Applicant to hold a firearms licence. If consideration of the evidence was a mandatory relevant consideration, the Tribunal at first instance gave proper, genuine and realistic consideration to the evidence (Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [9]), or engaged in active intellectual exercise of evaluation (Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [46]. Was the decision manifestly unreasonable 1. At the hearing, Mr Kable confirmed that the "manifestly unreasonable" ground was limited. It was contended that had the Kruger-Davis report and the character references been given sufficient weight, the Tribunal would have reached a different outcome. Consequently, as more weight had not been given to this evidence, the decision was manifestly unreasonable. 2. The obstacles to success of "weight" challenges have long been recognised (Gronow v Gronow (1979) 144 CLR 513, HCA 63 at [10]. At most, the submissions of the Appellant might establish that other findings may have been made with respect to the Kruger-Davis report, but that, as the authorities recognise, does not enliven appellate intervention (Edwards v Noble (1971) 15 CLR 296 at 304). 3. No alternative argument was raised as to unreasonableness. 4. As we have already determined, no error of law arises from the weight given to the character references and the Kruger-Davis report. They were not mandatory considerations and were, in any event properly evaluated and balanced by the Tribunal in the exercise of the discretion in s 11(7). 5. Consequently, no error of law arises and this ground of appeal fails. Conclusion 1. In short, there are no properly arguable grounds to find that the Tribunal erred on any question of law. On that basis, the appellant would require leave to appeal but no leave was sought to appeal on the merits. 2. Accordingly, we dismiss the appeal. Orders 1. Our Order is as follows: 1. The appeal is dismissed. ********** 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: 02 December 2021