Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dempster v Commissioner of Police [2022] NSWCATAD 289 Hearing dates: 16 August 2022 Date of orders: 26 August 2022 Decision date: 26 August 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: Emeritus Prof G D Walker, Senior Member Decision: Decision under review affirmed. Catchwords: LICENSING – firearms – licence refusal – additional ground - whether NSW resident – whether intention to use for protection -- fit and proper person – public interest – extension of time for application. Legislation Cited: Administrative Decisions Review Act 1397 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Firearms Act 1996 (NSW) Firearms Regulation 2017 (NSW) Cases Cited: AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5; Australian Broadcasting Tribunal v Bond [1990] HCA 35, (1990) 170 CLR 321; Briginshaw v Briginshaw (1938) 60 CLR 316; Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42; Commissioner of Police, New South Wales Police Force v EMB [2021] NSWCATAP 63; Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16; Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50; Director-General Transport New South Wales v AIC (GD) NSWADT [2011] NSWADT AP 65; Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 215; Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89; Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127; Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117; Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368; McDonald v Director-General, Social Services (1984) FCA 57, (1984) 1 FCR 354; Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206; Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 1; Nelson v Commissioner of Police, New South Wales Police Force [2012] NSWADT 84; Pang v Commissioner of Police, New South Wales Police Force [2009] NSWADT 11; Selmes v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 360; Smith v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 184; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10; Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28; Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110. Category: Principal judgment Parties: James R Dempster (Applicant) Commissioner of Police (Respondent) Representation: Solicitors: Applicant (Self-represented) McCullough Robertson Lawyers (Respondent) File Number(s): 2022/00106208 Reasons for decision 1. The applicant Mr James Robert Dempster applied to this tribunal on 13 April 2022 for review of a decision by the respondent Commissioner dated 26 November 2021 to refuse his application for a category AB firearms licence on the ground that the applicant was not a fit and proper person to be issued with a licence and that it was not in the public interest for him to hold a licence (exhibit R1, pp 110 – 111). 2. The decision pointed out that in February 2018 the applicant had submitted an application to the New South Wales Firearms Registry for a category H licence (handguns). Part of his application included a statement that "my foresight to deny the invasion of my vehicle with intent to steal a unit that is disarmed but an interest to some with questionable standards". The Commissioner took the view that the applicant's reasoning raised public safety concerns as it was not a valid reason to possess the firearm in New South Wales and placed an entire demographic at risk, whether they had been involved in crime or not. 3. On 12 January 2020 to the applicant sought an internal review of the decision, which was taken to have been finalised on 2 February 2022 as the respondent had not notified the applicant of the outcome of the review within 21 days (Administrative Decisions Review Act (ADR Act), ss 53(g), 55(3)). 4. The application to this tribunal came on for hearing by AVL link on 16 August 2022. As the application was 42 days out of time, the applicant sought leave under s 41 41 of the Civil and Administrative Tribunal Act (CAT Act) to have a late application accepted and heard. The respondent neither consented to nor opposed the application, and an extension of time was granted. Applicable legislation 1. Section 11(3)(d) of the Firearms Act provides that a licence must not be issued unless "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". Section 11(3)(a) provides that a licence must not be issued unless "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". 2. Section 11(7) of the Firearms Act states that "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". 3. Section 12(2) provides that an applicant does not have a genuine reason for possessing or using a firearm if intending to use it for personal protection or the protection of property. 4. The issues in the present application are thus: * whether the applicant is a resident of New South Wales or is about to become a resident, * whether the applicant intends to possess or use a firearm for the purposes of personal protection or the protection of property, * whether the applicant is a fit and proper person to hold a firearms licence, and * whether it would be contrary to the public interest for a licence to issue to the applicant. The evidence 1. The respondent called no oral evidence but instead relied on the documentary material, including the s 58 documents (exhibit R1), and on cross-examination of the applicant. 2. In oral evidence at the hearing the applicant adopted his statutory declaration dated 19 June 2022 (exhibit A1) in which he stated that he had experienced childhood trauma and had received New South Wales victim of crime compensation. The clinical psychologist evaluating his case, Ms Lisa Chantler, revealed his intellectual functioning, noting that "The difference between his VIQ [verbal IQ] and PIQ [performance IQ] is likely to occur in less than 1 percent of men of his age, which suggests the presence of a language disorder…. Such a low VIQ suggests that Mr Dempster will have difficulty conceptualizing verbal problems and concepts. He will struggle to put his feelings into words. Written English will also be difficult for him and his written communication attests to this". The report also stated that "Mr Dempster was treated cruelly and with emotional indifference such that his personality was damaged…. The effects of these disorders have plagued him all his life in the manner as described and are permanent". 3. He is aged 76 years and was born at Alice Springs, Northern Territory, a member of a well-respected pioneering pastoral first settler family. He had been a law-abiding citizen and in life had been forced beyond reasonable expectations to manage his 2011 clinical diagnosis. 4. Through the decades he had travelled the globe extensively without immigration and border control entry refusal. He became the owner of a firearm around 1959 and acquired more subsequently. He believes that the Firearms Registry acted without consultation or awareness of his ability to communicate and comprehend. His writing had been misconstrued. 5. He had met the testing criteria for his South Australian security guard professional standards assessment many years ago and had held a responsible position as a professional vermin control in many states of Australia. When required he had operated on call. He had harvested kangaroos with a licence issued by the NSWPS controller of pest species. He had formal training and qualification in a professional capacity from Australian Meat and Livestock, having met all the requirements of the live cattle export trade. It was a requirement of the industry that standards be upheld including by euthanasia of livestock where necessary. His employment and professional ability were well regarded by industry leaders, including George Birchmore of S Kidman & Co. Pty Ltd. 6. He is on record as having an international cattle delivery with 0.038 percent loss. He is a multi-state landholder and holds vermin control authorization. He is an experienced bushman and cattleman, knowing the inland of Australia. A firearm is a requirement for existence, safety and meeting industry standards. 7. The applicant also adopted his letter dated 12 January 2022 addressed to the Firearms Registry (exhibit R1, pp 112 -114) seeking an internal review of the refusal decision. In it he stated that he had been a victim of historic child abuse in New South Wales and had been required to present himself before medical professionals nominated by the New South Wales Victims of Crime tribunal, Ms Lisa Chantler and Dr Morrell. It had been discovered that he was born with the language impediment, consolidated in his time with Yankunyjantjara Aborigines, "stock boys" in the cattle industry and Japanese. In the course of his life the condition continued undiagnosed and untreated, silently causing him harm and leading him to seek justice on other unrelated issues in the past. Determinations had been made in his favour. 8. It had been found that 1 percent of males have his condition, which causes him much difficulty in written comprehension (he was assisted in his request for the internal review). It would be very difficult to assess his IQ as his mechanical, non-verbal spatial skills were far different from his linguistic, written capacity. The Victims of Crime tribunal appointed psychologist, Dr Morrell, had said "It's just when language is involved that things go pear-shaped". 9. His life had been and would continue to be within the various forms of primary industry, irrespective of his age. Health determines longevity. After 1950 in Oodnadatta he had begun a professional association with the late George Birchmore, pastoral manager of S. Kidman & Co., then one of Australia's largest beef producers, in Adelaide. Mr Birchmore employed him for some years, but his international engagements were not limited to Kidman. He is certified and multi-skilled in fields associated with primary industry. 10. All forms of primary industry standards and protocol are severely compromised without the use of a rifle. He first received his rifle in his 13th year (1959), continuing until 2018. In that period his many professional pursuits on the land incorporated the use of many firearms – an unbroken period absolutely without incident. His international livestock export voyages on the oceans from Australia demanded the use of firearms when required. His examination in Western Australia to hold that position was conducted and directed by federal protocols in keeping with animal welfare standards and international export trade protocols. 11. His only son represented Australia for five years in the National Junior Archery team. His direct management and oversight in that period allowed his son's national selection and records to stand. Without the applicant he would not have risen to be for a period of 5 years an under 18 Australian and Australasian champion. The applicant holds an international diploma in oil and gas and was licensed as required by industry to use explosives and firearms. 12. Over the years he had met the criteria and rigid testing to hold an unrestricted security guard licence, and had been invited by senior police inspectors to consider entry into the South Australia Police mounted cadre. His association with serving sworn police members has been long and continuing. Over a period of some years he engaged in a direct support role with an extremely successful police sporting team. On one occasion he travelled to China as a member of that contingent to contest an international event that rewarded participants with a gold and silver medal in the city of Nanning. Together with the travelling team members, he remained in China for an extended period before departing for Japan. 13. Many decades had passed since he commenced travelling beyond Australia's borders to global horizons, interrupted by this current Covid – 19 pandemic. Some 30 years ago he first travelled to Japan and until Covid, he continued to do so regularly. No problems had arisen. 14. In November 2021 he had contracted his services in consecutive 40-hour weeks in his professional capacity to a district council experiencing an extreme labour shortage and contributed to a community that was in a dire position. He had a position hundreds of kilometres away, but recognized the call upon him. At that location he had held the position of heavy diesel plant mechanic. 15. The respondent's assessment of his integrity was without foundation, and certainly none of the above would ever be possible if the content of the respondent's assessment and refusal of a licence just happened to have some element of substance. 16. He sought review on the above grounds, including that he is directly and proficiently engaged in primary industry, which is regarded as an essential industry, and is a professional member of an essential industry, a law-abiding person of good character and sober habits who has been examined by many customs, border force and police agencies. He has a current New South Wales driver licence, including for heavy vehicles, and has had no infringement and no demerit points. If his exit from New South Wales were to be considered an interstate transfer, he would be denied animal, industry, protocol and standards, all forms of firearms training and assessment, and all firearms engagements his New South Wales licence refusal would be permanent. 17. Cross-examined by Mr Wilton at the hearing, the applicant explained that he was participating in the AVL connection for the present hearing at Broken Hill public library. He is an itinerant stockman and owns property in South Australia, at German Hill Road, Coober Pedy, SA, which was where he had sworn his affidavit. He was considering living in South Australia and had removed himself from New South Wales, having no residence links with the state. On 23 August 2022 he would make his formal exit from the state as his lease expired. His postal address now is PO Box 297, Coober Pedy. He was currently working for two stations in South Australia each day, one being Mount Clarence, and is also contracted to Coober Pedy Council because of his varied skills. 18. His concession card gives his South Australian post office box as his address. That was for convenience because he spends a lot of his time in Japan. His mail is collected by agents. His son lives in South Australia and his accountant practises in Adelaide. He has owned no property in New South Wales for 30 to 40 years. He is a tenant in New South Wales until 23 August, and has been for many years. He had last visited that residence 3 days ago. He was transferring to South Australia and extracting himself from New South Wales. 19. On 18 February 2018 he had applied for a category H (handguns) licence, in addition to his AB licence. He agreed that in the covering letter to his application (exhibit R1, p 55) he had expressed concern about possible break-ins to his car, but denied that he wanted a pistol for defence, and said that suggestions to the contrary were taking his statements out of context. 20. He agreed that he had telephoned the Firearms Registry on 23 March 2018. His attention was then drawn to a file note of the conversation (annexure A, exhibit R2) stating that he had said "he is concerned with the Aboriginal population of some of the outback towns he goes to for business stating that the Aboriginal people are on ice [methylamphetamine] and have no qualms breaking into cars and stealing anything including his guns. The Cust[omer] adv[ised] this is why he is applying for a pistol business application". 21. He explained that he did not recall the exact words, but his description of the circumstances was a fact, as there were between 8 and 12 break-ins every night in Alice Springs. He was concerned about security, and having been a licensed security guard he knew the requirements of security. He was concerned about anyone breaking in, but his pistol would not be for defence – that suggestion was out of context. His reason was that a small "unit" was easier to carry and secure. It was a matter of the size of the item in relation to storage and carriage. His speech impediment had affected his verbal expression all his life. 22. By way of re-examination the witness said he disputed the police reports of criminal events. The 2022 report was objectionable because the source was a criminal. It was vexatious harassment and untrue, and the entirety of Ms Newman's statement was false and should not be admitted. He had not been there at the time and could prove it from his travel records. He was currently involved in NCAT proceedings against her. He could not recall the details because he did not have the documents, including exhibit R1, in front of him. He was currently involved in NCAT proceedings against her in relation to his expiring tenancy at "Sandhills", Menindee, New South Wales. The police reports were aged and obsolete and he had no criminal record. 23. The references he had supplied should be given substantial weight. As he wanted to transfer to South Australia, he needed NCAT to remove his revocation so that he could work in primary industry, where he was highly skilled. Livestock was his passion and properties were finding it difficult to obtain labour. 24. The applicant also tendered eight written references and an extract from a psychologist's report by Ms Lisa Chantler (annexures to exhibit A1). Their contents are outlined below. Applicant's submissions 1. In oral submissions at the hearing, Mr Dempster explained that he wanted to meet the South Australian firearms requirements, which were the most stringent in Australia, and sought to be released from the New South Wales system. He had lifelong linguistic problems which allowed people to take advantage of him. In such situations he usually walks away, but on two occasions he had reacted. He was widely known in the outback, as the reference from George Birchmore of S Kidman and Co. showed. He had travelled to China with the South Australia Police team, and had many decades of association with police, having been a licensed security guard in South Australia. 2. His AB licence was separate from his category H application, as the different types of firearms served different purposes. Category AB firearms were larger and had different storage requirements and purposes. He had sought a category H licence as a matter of convenience and safety from thieves, and allegations that he wanted it for protection were taken out of context. He is currently aged 76. 3. His Japanese reference attests to his credibility and is recent, as is the Kidman reference. Statements by Ms Newman should be removed from the record. He was not a risk to public safety and lived in a remote area. Feral pests are a threat to primary industry. He intended to leave New South Wales, but needed to have his licence ruling modified. Consideration Approach 1. Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77. 2. The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner's refusal of a licence or permit: s 75(1)(a). An internal review was applied for and taken to have been determined on 2 February 2022 as the respondent had not advised the applicant of a decision within 21 days (ADR Act ss 53(9), 55(3)). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357. 3. Clear guidance as to how the act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless 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. Section 11(4)(c) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's intemperate habits or being of unsound mind. 4. The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] – [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] – [12]. They do, however, provide guidance for the tribunal's exercise of jurisdiction. 5. The first ground on which the respondent seeks to have the refusal decision affirmed is that the applicant is not a resident of New South Wales. Although that ground was not mentioned in the refusal decision, the respondent is entitled to add additional grounds provided that proper notice is given, as has been done in this case. Residency in New South Wales 1. Residency is mandatory requirement for the issuance of a firearms licence. Section 11(3)(d) provides that a licence must not be issued unless the applicant is a resident of this State or is about to become a resident of this State. The words "resident of this State" are to be interpreted in accordance with their ordinary and current meaning, which is "dwell permanently or for a considerable time; [or] have one's abode for a time": Pang v Commissioner of Police, New South Wales Police Force [2009] NSWADT 11, [20]–[25]; Nelson v Commissioner of Police, New South Wales Police Force [2012] NSWADT 84, [23] – [25]. 2. In this case the applicant appears quite candid on the point. In his NCAT review application form filed on 3 April 2022, he writes that "The refusal of my application now precludes me from applying for a licence in South Australia where I now reside". Similarly, in his letter requesting an internal review dated 12 January 2022, he writes that "Should my exit from the state of NSW an interstate transfer be considered" he would be denied a South Australian licence (exhibit R1, p 113). 3. In cross-examination he said he had removed himself from New South Wales and had no residence links with the state. He has owned no property in New South Wales for between 30 and 40 years, but he owns a property at German Hill Road, Coober Pedy, South Australia and his postal address was PO Box 297, Coober Pedy, SA. That address appears on his concession card also. His "formal exit" from the state would take effect on 23 August, by which date his "hostile eviction" from the property "Sandhills" at Menindee, New South Wales, requires him to vacate, apparently as a result of an extension of time. He said he was transferring to South Australia and extracting himself from New South Wales. 4. Again, his letter attesting to his permission to shoot on Mount Clarence Station at Coober Pedy, SA, states that he is "currently working on Mt Clarence Station and Walatina Station via Marla SA" (exhibit R1, p 103). His statutory declaration in support of the current application was signed and sworn at Coober Pedy. The psychologist he attended in 2011, Ms Chantler, practices in Adelaide (exhibit R1, p 117), as does his business accountant. All of his referees are based outside New South Wales, and six are in South Australia. His son lives in Adelaide (exhibit R1, p 66). 5. In his submissions the applicant reiterated that he intended to leave New South Wales, but said he must have the licence refusal decision modified because he wishes to be eligible to meet the South Australian requirements for a licence. 6. He is currently working for two cattle stations in South Australia, is under contract to Coober Pedy district council and has no work connections with New South Wales. His undated letter to NCAT referring to his January 2022 internal review application states that "As I reside in South Australia, I would request that this matter be listed for determination at Broken Hill, that being the closest centre in NSW to where I reside". He describes himself as an itinerant stockman, but the preponderance of the documentary and other evidence shows that he is a resident of South Australia. He pointed out at the hearing that he had visited the Menindee property three days previously, but that cannot outweigh the other evidence, including his own admissions. I therefore find that the applicant is not a resident of New South Wales or about to become a resident of this state. 7. As the requirement for residency in New South Wales is mandatory, that finding suffices to dispose of the present application. It may be appropriate, however, to make some comments about the other grounds on which the respondent relies. Intention to use firearm for protection 1. Section 11(2) of the Firearms Act states that a person does not have a genuine reason for possessing or using a firearm if intending to use it for personal protection or the protection of property (subject to certain inapplicable exceptions). This ground was not relied on in the reasons for the refusal and revocation, but a party is entitled to add new grounds for the hearing, subject to procedural fairness: Selmes v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 360, [59]. 2. As was noted above, in his covering letter accompanying his unsuccessful category H application, he argued that carriage of long arms in a vehicle for business purposes required extra caution and control, when a "small unit would do the same job with a much better security circumstance. I do not remain in a static position, I travel distances. My application is pre-emptive, my foresight to deny the invasion of my vehicle with an intent to steal a unit that is disarmed but an interest to some with questionable standards". 3. Further, in a telephone conversation with the Firearms Registry about his category H application on 8 March 2018, he referred to the Aboriginal population of some outback towns that he visits, saying that (as the file note paraphrased it) "they are on ice [methylamphetamine] and have no qualms regarding breaking into cars and stealing anything including his guns" (exhibit R2, Annexure A). For those reasons, in addition to doubts about the applicant's residency in New South Wales, the respondent refused the category H application and revoked the applicant's AB licence (exhibit R1, pp 61 – 63). 4. The applicant in his category AB application that is the subject of this appeal did not suggest that protection of person or property formed part of his reason for possessing and using long arms. In his internal review request dated 30 April 2018, he had stated "My statement at the time of a phone call to NSW firearms registry on 8 March 2018 has been misinterpreted and I CERTAINLY did not mean that I would harm any human being. This is definitely not in my nature. I do regret mail posted when I requested your consideration to hold a H Class firearm and have reconsidered. I apologise sincerely and will withdraw" (exhibit R1, p 67). 5. The respondent submitted that the applicant only sought to resile from his earlier position after he became aware that it would prevent him from being issued with a firearms licence, rather than because his intention to use a firearm for protection had genuinely changed. A retrospective change was insufficient and his contention that he had wanted a category H firearm because it was smaller and more convenient to store and transport, and was likely to be overlooked by thieves, was inconsistent with his earlier statements. A retrospective change was not enough. 6. The covering letter of 18 February 2018 was ambiguous on this point and was not necessarily inconsistent with his current position. The telephone call of 3 March 2018, however, was less ambiguous, although it could still possibly be interpreted, as the applicant asserted, as referring to the greater ease of transport and safe storage of a handgun which, being smaller, might be overlooked by thieves The respondent contended, however, that any ambiguity should be resolved in favour of the objects of the legislation. 7. The applicant denied that at the time of the 2018 exchanges he had any intention of using a pistol for defence, saying that he was concerned about security, having been a licensed security guard, and knew the requirements for proper security. He was concerned about anyone breaking into his vehicle, not about defence, and his statements had been taken out of context. 8. A possibly telling circumstance is the relatively open way in which the applicant had talked about deterring break-ins by thieves in his dealings with the Firearms Registry. He seemed not to realize that, under the Act, protection or defence is not a genuine reason for firearm ownership or use. He is a man aged 76 who has spent much of his life in the far outback or overseas and has deliberately avoided mainstream society because of his language disorder and his episodic difficulty in formulating and expressing his thoughts. The use of firearms for protection and defence was quite lawful until 1996 and it is possible that the applicant was not aware that such considerations were not now accepted and could in themselves lead to rejection of his application, not to mention revocation of his licence. 9. He withdrew that argument in his letter to the Firearms Registry of 18 April 2018, apologized for taking that position and in his oral evidence denied any thought of using firearms for defence. The respondent submitted that this was a purely tactical change and that his intentions remained unchanged. That contention finds little support in the evidence. The applicant's exceptionable assertions were made in 2018, four years ago, and he is now clearly aware of the true legal position. 10. Further, he has possessed and routinely used firearms in his work since the 1960s and has never contravened any firearms legislation or used firearms in a dangerous or careless manner. There is no suggestion that he has ever threatened anyone with a firearm or made any threatening references to firearms in the context of disputes with others. In my view this ground has not been made out and I so find. Fit and proper person 1. The next ground on which the respondent contends that the revocation should be affirmed is that the applicant is not a fit and proper person to hold a firearms licence. Section 11(3)(a) provides that a licence must not be issued unless the Commissioner (and, on review, the tribunal) is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to the public safety or to the peace. 2. The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 – 157, the High Court gave a general overview of the concept and the discretion that it embodies: The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their 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…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion. 1. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that: 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, or 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. 1. Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30]. 2. 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, [45]. Assault charges and related incidents 1. On 15 March 1982 at Broken Hill Court of Petty Sessions, the applicant was found guilty of assault and pursuant to s 556A of the Crimes Act 1900 (the equivalent at the time of s 10 of the Crimes (Sentencing Procedure) Act) was discharged under a conditional release order for a period of 12 months and fined $200 (exhibit R1, p 5). On 15 January 2007, he was found guilty of common assault at Broken Hill Local Court and pursuant to s 10(1)(b) of that Act the court, without proceeding to conviction, discharged the applicant under a conditional release order for 12 months and ordered him to pay court costs of $67 (ibid.). 2. The respondent accepted that the applicant's criminal history is "somewhat dated", but contended that it showed a propensity for violence and, together with the 2022 matters, was inconsistent with the granting of a firearms licence. 3. The 2022 matters arose out of the purchase by Ms Melissa Newman of the property "Sandhills" at Menindee in December 2020 at a council auction for non-payment of rates. The sale and a lease to which it was subject gave rise to NCAT proceedings (which are still ongoing) and generated conflict between Ms Newman and the applicant. 4. On 9 May 2022 Ms Newman complained to police that about 12 months previously when she was in a store in Menindee, the applicant had approached her. She had sneezed and he accused her of having Covid. She argued with him about it and told police that he appeared menacing, but no threats or assaults occurred (event report E 89085968, exhibit R1, p 30). 5. Ms Newman also claimed that about 6 months previously, she was in the 4WD shop when the applicant approached her and made a number of offensive remarks to her about Aborigines. She swore at him and walked away. 6. Ms Newman also complained that on 9 May 2022, at about 6:30 p.m. she went around to the property as it was meant to be the final court-ordered day that the applicant had to clear out his belongings, and he was meant to vacate by 4:00 p.m. on that day. As he was still there, she approached him on the driveway and said, "Get off my property". The applicant had replied, "I'll leave when I'm bloody well good and ready". Ms Newman had noticed a gun bag propped up on the fence. She left shortly afterwards. 7. She told police that she felt intimidated by the applicant's behaviour. The police report states that "Police recognise that this matter is a civil dispute, and tensions from both sides are understood and justified. No threats, assaults, or acts of intimidation have been identified in any of the incidents". The applicant flatly denied the incidents, but even though Ms Newman's allegations are untested double hearsay and were already quite old when she made her complaint, they are unlikely to be complete fabrications. 8. Any history of violence or threats of violence is a major warning signal in the context of firearms licensing. In this case, however, the applicant's two common assault charges are, as the respondent observed, "somewhat dated" and there is nothing to indicate that they involved firearms. The confrontations with Ms Newman involved highly offensive language but no threats, assaults or acts of intimidation occurred. They arose out of an acrimonious civil dispute and involved abusive language on both sides and, as was noted above, the incidents were reported to have taken place six months and 12 months previously, respectively. On the whole of the evidence, a finding that the applicant has a history of violence is unwarranted. 9. The applicant's antecedents, and to an extent his evidence, can only be understood in light of his diagnosed language disorder. In her psychological report prepared for the New South Wales Victims Compensation Tribunal dated 5 July 2011, Ms Lisa Chantler writes that - "Mr Dempster's Verbal IQ score was in the borderline range (lowest 9 percent) while his Performance IQ was in the very superior range (top 5 percent). The 44 point difference between his VIQ and PIQ is likely to occur in less than 1 percent of other men of his age, which suggests the presence of a Language Disorder. Such a low VIQ suggests that Mr Dempster will have difficulty conceptualising verbal problems and concepts. He will struggle to put his feelings into words. Written English will also be difficult for him and his written communication attests to this (exhibit A1, annexure 2). The references 1. The applicant tendered a number of references, the first being from Mr Mark Weaver APM, a retired Senior Sergeant First Class in the South Australia Police, dated 17 June 2022. It describes the applicant as a reputable and community respected gentleman. He is well known in the remote areas of South Australia, such as Coober Pedy and pastoral stations, and is known to be committed to his duties in primary industry. During his time as a police officer, Mr Weaver's experience with the applicant was of a positive character and there was no criminal behaviour. He recommended the applicant for obtaining a South Australian firearms licence. 2. Mr Noel Fraser, of Mount Clarence Station, in his letter of authorisation to shoot vermin such as wild dogs, dingoes, camels and injured livestock, describes the applicant as "an experienced stockman, bushman and currently working on Mount Clarence Station and Walatina Station". Mr John Osman, the owner and operator of Omicron Station in far south-west Queensland, in his letter of authorization dated 12 June 2018 says the applicant "knows the country well and is an experienced bushman". 3. A letter from the manager of Naryilco Station in the channel country of Coopers Creek stated that the applicant had been employed there for approximately two years and had always been found to be responsible and capable in all managerial aspects of station activity. He had been employed in the knowledge that his father had been a previous head stockman at Nayilco and drover for S Kidman & Co. The applicant was a valuable member of the staff and because of his qualifications and technical skills he worked as a diesel mechanic, special welder and generally exercising his engineering skills. His understanding of livestock and his ability to handle cattle and general stock work were of a high standard. 4. George Birchmore (now deceased), previously a station manager and later pastoral manager with S Kidman & Co., wrote on 20 November 2014 that the applicant is well known and received by all who know him in the pastoral industry over a wide area of outback Australia, especially in South Australia, Northern Territory, New South Wales and Queensland. His reputation preceded him to all who knew him. He is experienced in all aspects that make a good bushman, together with the survival skills which all men of the bush country are familiar with. He is a bush drover, walking cattle over long distances to market or other destinations and is expert in cattle management. He excels as a horseman, with the experience of long days and sometimes nights in the saddle, as well as in the breaking in and training of horses. His experience and knowledge in the breeding of horses is unsurpassed. 5. Mr Don Tilmouth, export manager of RM Williams Pty Ltd, explained that he had introduced the applicant to his company's agent in Sapporo, Japan, to further projects that both parties were interested in. Robert Dempster was of a respected family of pastoralists, horsemen and horsewomen. He is a competent horseman and has made long and well-recognized tracks with pack horses during the course of his life and in recent years. 6. Mr John Whittaker is the operations manager of Coober Pedy District Council and is on occasions tasked with engaging suitable members with appropriate skills, which has been extremely difficult. In his letter dated 18 June 2022 he explained that the remote location of operational responsibility has challenges, and managing work and skilled labour requirement is a major factor. Mr Whittaker had engaged the services of the applicant, who had previously been employed by the council some years earlier. His ability to take up the position at short notice with his mechanical engineering qualification was appreciated. He had proved to be punctual, responsible and able to conduct his schedule in a professional manner. He has experience in diverse career streams, has travelled extensively and is a person well known across the outback regions of Australia. Mr Whittaker has found Mr Dempster to be a fit and able person who can be called upon to assist anyone. He displays sober habits, has community values and is a worthy, responsible person in any position of his choosing. 7. Also in evidence are a certificate of attainment from LiveCorp (Australian Livestock Export Corporation Ltd) certifying that in August 1999 the applicant successfully completed the live export cattle stockman training course (exhibit R1, p 69) and a certificate signed by the Lord Mayor of Adelaide dated 26 August 1992 commemorating his carrying of the city of Adelaide coat of arms from the town hall, Adelaide to the town hall in Broken Hill by saddle and packhorse, describing it as "A remarkable journey" (id. p 70). There is also a document in Japanese which appears to be some kind of certificate, but no translation is attached (id. p 115). 8. Three of the references relate to firearms use, including the one from a retired Senior Sergeant First Class in the South Australia Police, who specifically recommends the applicant for a firearms licence. Although, as the respondent pointed out, the references do not display awareness of the incidents noted above, in a numerically small community such as the grazing industry of the remote outback, some at least of the referees are likely to have been aware of them. The references attest to his multifarious skills in cattle management, grazing property management, horse breaking and training, and practical engineering. It appears beyond doubt that he is a respected and trusted participant in far outback primary production. His angry outbursts with Ms Newman may in part be attributed to the tensions aroused by a bitter tenancy dispute, and perhaps in part to his episodic difficulties with comprehension, ratiocination and expression resulting from his diagnosed language disorder, as described by Ms Chantler and Dr Morrell. 9. At the same time, the very superior, top 5 percent, PIQ (performance IQ) observed by Ms Chantler may help to corroborate the evidence of his wide range of skills applicable to the grazing industry and the high reputation he enjoys in that sector. He has owned and used firearms since childhood and there has never been any suggestion of careless, dangerous or inappropriate use of firearms on his part. In my view the evidence establishes that the applicant is a fit and proper person to possess and use firearms without danger to the public. Public interest 1. The final ground on which the respondent argues for licence refusal is that it is not in the public interest for a licence to be issued to the applicant, within the meaning of s 11(7) of the Firearms Act. 2. The "public interest" factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They 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, New South Wales Police Force [2013] NSWADTAP 16. 3. The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety. 4. In a familiar passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [28] 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. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test under s 11(7) as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206, [130]. 5. Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5; that that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. "The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests" (at [7]). 6. Other cases have pointed out that the question of risk 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, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] – [66]. 7. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "In determining this issue it is my view that 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". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74]. 8. Further, the Court of Appeal in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1] observed that the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Similarly, in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218, [24] the tribunal stressed that public safety is to be given paramount consideration. 9. The respondent contended that it would not be in the public interest for the applicant to hold a firearms licence for essentially the same reasons as those advanced in connection with the question of fitness and propriety. For the reasons set out above, those contentions cannot be sustained. 10. The decisive criterion on the issue of public interest is the question of risk to the safety of the public. In that regard it should be noted once again that the applicant has been possessing and using firearms for some 60 years, usually for work, and has never been the subject of any contraventions of firearms legislation, nor is there any report of his having handled, used or stored firearms in an unsafe, negligent or inappropriate manner. Issuance of a licence to him would entail no real or appreciable risk to public safety, as understood in Webb. 11. Further, it is in the public interest for law-abiding farmers and graziers to have access to long arms for the protection of the environment and of primary industry. While the applicant does not appear to be a farmer or grazier himself, the evidence shows that he is a valued participant in primary industry for his many-faceted skills in livestock handling, horsemanship and horse management, outback droving and rural engineering. In that role, long arms are a practical necessity. In light of all the evidence, it would not be contrary to the public interest for the applicant to be issued with a firearms licence, and I so find. Conclusion 1. The evidence in this case leads to the conclusion that the applicant is not a resident of New South Wales, nor is he about to become such a resident. Consequently, by reason of s 11(3)(d) of the Firearms Act, a licence must not be issued to him. That provision is mandatory and the tribunal has no discretion in the matter. 2. At the same time, the evidence shows, and I have found, that he is a fit and proper person to hold a firearms licence and that it would not be contrary to the public interest for him to do so. But for the requirement of residency in New South Wales, he would be eligible to be issued with a firearms licence. Order 1. Decision under review affirmed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 August 2022