Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Taggart v Commissioner of Police, NSW Police Force [2023] NSWCATAD 113 Hearing dates: 28 November 2022 Date of orders: 19 May 2023 Decision date: 19 May 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: 1. The decision under review is set aside. 2. The application by Aaron Paul Taggart for a category AB firearms licence is granted. Catchwords: Administrative Law – firearms licence – refusal of application –fit and proper person – whether contrary to the public interest to hold a firearms licence. Legislation Cited: Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997 Firearms Act 1996 Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16. Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63 Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65 Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 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 Kemball v Commissioner of Police, NSW Police Force [2023] NSWCATAD 104 Minister for Immigration and Citizenship v Li [2013] 297 ALR 225 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 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 Texts Cited: None Cited Category: Principal judgment Parties: Aaron Paul Taggart (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Solicitors: Self-represented (Applicant) Makinson d'Apice Lawyers (Respondent) File Number(s): 2022/206929 Publication restriction: Nil Reasons for Decision Introduction 1. This is an application by Mr Aaron Taggart ("the Applicant") for review of a determination by a delegate of the Commissioner of Police ("the Respondent" or "the Commissioner") under the Firearms Act 1996 ("the Act"). The delegate decided to refuse the Applicant's application for a category AB firearms licence for the genuine reason of Recreational Hunting/Vermin Control. 2. The decision was affirmed on internal review and the Applicant has applied to this Tribunal for external review. 3. The Applicant previously held a firearms licence. From November 2010 to December 2019, he held a category AB firearms licence for target shooting, recreational hunting, and vermin control. That licence expired in December 2019 and the Applicant did not reapply until February 2020. 4. The Commissioner contends that the Applicant provided false and misleading information in his firearms licence application. The Commissioner's view is that the correct and preferable decision is to refuse the Applicant's application because the Applicant is not a fit and proper person to be granted a firearms licence and that the issue of a firearms licence to the Applicant would be contrary to the public interest. Background 1. The Commissioner's view is primarily related to the Applicant's history of mental health issues and his lengthy history of traffic offences. 2. It is not in dispute that between 1997 and 2006 the Applicant was convicted of dishonesty offences and other offences. It is also not in dispute that the Applicant has been the subject of AVOs and has had numerous traffic infringements recorded against him. Between 1999 and 2022, he received approximately 28 infringement notices, he has been disqualified from driving due to driving with middle range PCA and he has had numerous fine default suspensions. 3. In 2006 the Applicant disclosed that he suffered from depression and was taking medication. In November 2019 the condition, Nervous Disorder, was placed on his driver licence. However, in his February 2020 firearms licence application he incorrectly answered 'no' to the following personal history question: "Have you in NSW or elsewhere: ... d) ever attempted suicide or self harm, or in the past 12 months been referred or treated for alcoholism, drug dependence, or a mental or nervous disorder or illness? " 1. In December 2020, the Respondent requested that the Applicant provide an assessment from a Psychiatrist/Psychologist as evidence of his suitability to be authorised for firearms. In response to that request, the Applicant obtained a report from Dr Dominic Paul, Psychiatrist. Dr Paul did not find any psychiatric reasons for the Applicant not to have a firearms licence. 2. In May 2022 the condition, Mental Health-Anxiety, was placed on the Applicant's driver licence. That condition was subsequently removed. 3. The internal review reasons for decision stated: [T]he letter provided by Psychiatrist, Dominic Paul, dated 12 May 2021 has been considered and I find that it is favourable. The report provides that you appear very stable from a mental health perspective, and you had no formal thought disorder, no suicidal ideation and no psychotic features. Additionally, Dr Paul does not find any psychiatric reasons for you not to continue having a firearms licence. However, while the above is found to be in your favour I can not discount the recent condition that has been added to your driver licence. The condition of Mental Health - anxiety has been added to your driver licence on 6 May 2022. As the report from Dr Paul was dated prior to the addition of this condition, concerns relating to your mental health cannot be allayed. While a person should not be penalised for their mental health, in the interest of public safety, including your own, the implications of such circumstances cannot be ignored. 1. The Respondent affirmed the decision to refuse the Applicant's firearms licence. The issue for determination 1. The issue in the present case is whether the correct and preferable decision is to affirm, vary or set aside the Commissioner's decision and, specifically, whether the Applicant is a fit and proper person to have a firearms licence, and whether it is contrary to the public interest for the Applicant to hold a licence under the Act. 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 Commissioner's, and there is no presumption that the Commissioner'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. He does not take on the responsibility of having to prove a case, nor does he cause the Commissioner 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 this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at paragraph [23]. 6. The discretion must be exercised keeping in mind the activities which are authorised by a licence under the Act. Accordingly, the objects and purposes of the Act are relevant. 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 on the Tribunal by section 75 of the Act. The Tribunal's jurisdiction includes review of a decision by the Commissioner to refuse an application for 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. 1. The Commissioner, and therefore the Tribunal, has discretion in regard to the issues to be decided in this matter and 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. ... 1. Section 11(3)(a) of the Act prescribes that a firearms 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 Act provides that the Commissioner may refuse to issue a licence if she considers that issuing of the licence would be contrary to the public interest. 3. 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. 4. The Applicant's application for a firearms licence nominates his "genuine reason" for a firearms licence as "Recreational Hunting/Vermin Control". Relevantly, section 12 provides: 12 Genuine reasons for having a licence (1) 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. ... (4) Subject to this Act, an applicant for a licence has a genuine reason for possessing or using a firearm if the applicant— (a) states that he or she intends to possess or use the firearm for any one or more of the reasons set out in the Table to this section, and (b) is able to produce evidence to the Commissioner that he or she satisfies the requirements specified in respect of any such reason. Table Reason: recreational hunting/vermin control The applicant must— (a) be the owner or occupier of rural land, or (b) produce proof of permission given by the owner or occupier of rural land, or by an officer or employee of the National Parks and Wildlife Service, the Department of Industry or other authority prescribed by the regulations, to shoot on rural land, or (b1) produce proof of permission given by a land manager within the meaning of the Forestry Act 2012 to shoot on land in respect of which the land manager is authorised to exercise functions as land manager under that Act, or (c) be a current member of a hunting club approved by the Commissioner in accordance with the regulations. The regulations may provide for the manner and form in which any such permission is to be given, the extent to which it operates, and how it is to be produced as evidence by the applicant. A person does not, so long as the person is authorised to give permission to shoot on land referred to in paragraph (b) or (b1), incur any liability merely because the person gives the applicant permission to shoot on the land concerned. ... 1. As noted, the Commissioner contends that the Applicant is not a fit and proper person to hold a firearms licence and that it is not in the public interest for him to do so. The expression "fit and proper person" has been considered in numerous decisions of this Tribunal. Fit and proper person 1. The Act places an emphasis on the need for licensees to be fit and proper for the role. The Tribunal has considered the issue of whether an Applicant is a fit and proper person to hold a licence under the Act on numerous occasions. 2. 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]. 3. In the context of the Act, fitness and propriety "must be considered in the context of at all times ensuring public safety": Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at paragraph [22]. 4. The question of a person's fitness to hold a licence is to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake. In the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. 1. They went on to say at 388: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration. 1. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said: In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails. 1. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court discussed the meaning of the term 'fit and proper' (at 156-7): "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 very purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or "idoneus") with respect to an office is said to involve three things, honesty knowledge and ability: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do ; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it"— Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances." 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. 1. 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." 1. The "public interest" allows issues going beyond the character of the Applicant to be considered. 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. 2. "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 "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. 3. In considering the public interest, regard must be had to the underlying principle of the Act. 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. The Tribunal must give proper, genuine, and realistic consideration to each of the relevant matters. A decision maker should not shy away from an exercise of that discretion merely on the grounds that the licensee may suffer hardship and or inconvenience: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at paragraph [22]. 4. The public needs to be confident that those who are afforded the privilege of a firearms licence will comply with the legislative requirements. 5. As the Appeal Panel said in Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 at paragraphs [24] to [25]: 24. The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the "overriding need to ensure public safety": Firearms Act s 3(1)(a). Public safety is improved by "imposing strict controls on the possession and use of firearms" and by "promoting the safe and responsible storage and use of firearms": Firearms Act s 3(1)(b). The objects of the Act include "to establish an integrated licensing and registration scheme for all firearms;" "to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;" and "to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms": Firearms Act, s 3(2)(b), (c) and (d). 25. In that statutory context it is uncontentious that a relevant consideration is the applicant's previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant. ... 1. 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: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at paragraph [23]. 2. 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 considered. 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. This material includes a number of records held in the Respondent's electronic database ("COPs"). The Respondent's solicitors also provided written submissions. 2. The Applicant relies on his own evidence and submission and a report provided by Dr Paul. The Applicant attended the hearing and was cross-examined. The Respondent's case 1. As noted, the Respondent contends that the application should not be granted because of the Applicant's: * driving record; and * mental health issues. 1. The Respondent also notes the Applicant's criminal history. The Internal Review reasons for decision outlined that history as follows: I have examined the records available to the NSW Police Force including, but not limited to, the following: That between 1997 and 2006 you were charged with various types of offences (on more than one occasion for the same type of offence) which include, but not limited to: > Steal from dwelling; > Obtain benefit by deceit/deception; > Stealing; > Larceny; > Larceny value < = S2000-T2; > Contravene Apprehended Violence Order (AVO); > Drive with low range PCA; > Drive with middle range PCA\ You were convicted on 20 occasions and on one occasion you were found guilty with no conviction recorded against you. The court gave you varying sentences for these offences; * That on 4 June 1998 you were the subject of an A VO which expired on 4 June 2000; * That on 18 March 2006 you were disqualified from driving for a period of 18 months due to driving with middle range PCA; * That you held a category AB firearms licence from 10 November 2010 until it expired on 30 December 2019, leaving firearms in possession while unauthorised; … 1. The Respondent accepts that most of these issues predate the last time the Applicant's firearms licence was renewed. However, it is submitted that the Applicant had not been completely frank with his psychiatrist, Dr Dominic Paul, and that he had not disclosed the criminal history to Dr Paul. Driving record 1. The Respondent points to the Applicant's poor traffic record which spans over 20 years and submits that despite receiving multiple infringement notices, losing demerit points, and having his driver's licence suspended/cancelled multiple times, the Applicant has continued to engage in the same risky and illegal behaviour. 2. The Respondent has identified 28 detected offences and 19 licence cancellations/suspensions to January 2022. This record does not include the many demerit points warning letters the Applicant has received. The Respondent contends that this history highlights a pattern of troubling behaviour, particularly when considering that many of these offences were committed repeatedly and that the Applicant continued to engage in the same behaviour that jeopardizes public safety. 3. The Respondent does not dispute the Applicant's contention that most of these offences occurred when he was rushing because of the need to deal with his son. The offences were either early in the morning when he was on night shift and rushing to be with his son or to collect his son after school. Nevertheless, the Respondent submits that while the Applicant may have had reasons for non-compliance, these do not justify the offences. 4. The Respondent submits that the Applicant's repeated breach of traffic laws and regulations indicates a clear disregard for a regulatory scheme designed to ensure public safety and for the law generally. It is further submitted that this traffic record alone justifies the refusal to issue the Applicant with a firearms licence. 5. The Respondent contends that the Tribunal could not be satisfied that the Applicant would comply with the legislation governing firearms if he was granted a firearms licence. In the circumstances it would be contrary to the public interest for the Applicant to have a firearms licence. Mental Health 1. The Respondent contends that there is reasonable cause to believe that the Applicant's mental health impacts his ability to personally exercise continuous and responsible control over firearms. 2. In November 2019 the Applicant had the condition Nervous Disorder, placed on his driver's licence. This was in response to a stress related panic attack that the Applicant experienced in August 2019. The panic attack occurred when he was driving to pick up his son from after school care. He was detected by a camera driving straight ahead against a right turn arrow. He attributed that panic attack to stress due to a massive workload and single parent commitments. 3. No fine was recorded in relation to the incident, but the Applicant was required to have a medical review by his GP. As a result of the assessment, he was prescribed a very low dose of the antidepressant medication Efexor XR. 4. The Respondent contends that because of the Applicant's panic disorder/anxiety condition there is reasonable cause to believe that he may not personally exercise continuous and responsible control over firearms. His condition caused him to drive straight ahead against the right turn arrow in 2019. As such, it impacted his ability to exercise the required control and responsibility to safely operate a vehicle and caused him to break a rule designed for public safety. 5. Accordingly, the Respondent submits that because the Applicant's condition has previously impacted his ability to comply with regulatory laws, significant concerns are raised regarding whether the condition may impact his ability to exercise continuous or responsible control over firearms. 6. The Respondent notes the report prepared by Dr Paul, dated 12 May 2021. This report concluded that there were no psychiatric reasons for refusing the Applicant a firearms licence. However, the Respondent notes that a new condition of 'Mental Health - anxiety' was added to the Applicant's driver's licence in May 2022. The Respondent also notes that the Applicant had not informed Dr Paul about his criminal record. Therefore, the Respondent submits, concerns relating to the Applicant's mental health cannot be allayed by Dr Paul's earlier report. 7. The Respondent does not dispute that the condition that was added to the Applicant's driver's licence in May 2022 was subsequently removed. However, the Respondent noted that the matter is to be reviewed every two years. 8. The Respondent does not dispute the Applicant's contention that he held a firearms licence for 9 years without engaging in any conduct which placed public safety at risk. The Applicant's case 1. As noted, the Applicant relies on his own evidence and the report by Dr Paul. the Applicant gave evidence and was cross-examined. He also provided written submissions in support of his application. Character references that were provided in support of the application are included in the material filed pursuant to section 58 of the ADR Act. 2. It is common ground that the Applicant held a firearms licence from November 2010 until December 2019. That licence was renewed annually, and it was last renewed in December 2018. The licence expired in December 2019, and the Applicant failed to renew it on time. He reapplied in February 2020, but the application was not processed until December 2020. At that time the Firearms Registry requested a psychological assessment of his suitability to possess and use firearms. In response to that request, the Applicant saw Dr Paul in May 2021. He stated that he was frank with Dr Paul and addressed all the issues that the Firearms Registry had raised. He said that he did not discuss his criminal record with Dr Paul because the Firearms Registry had not raised it as an issue to be addressed. 3. Dr Paul found the Applicant to be very stable from a mental health perspective. He did not find any psychiatric reasons for the Applicant to not have a firearms licence. 4. The internal review decision was finalised in June 2022 and affirmed the refusal. 5. The Applicant does not dispute his criminal record or his traffic record. He accepts that as a young man, he had made several criminal mistakes. He regrets the bad decisions that he made. He said that he took responsibility for them, and accepted the punishments handed down. However, he submitted that the criminal record predates the grant of his firearms licence and most of the traffic offences also predate the last renewal of the licence. 6. He also submitted that he was granted a firearms licence notwithstanding the criminal record and the licence was renewed for 9 years notwithstanding the criminal record and the traffic record. He does not dispute the traffic record and accepts that it demonstrates irresponsible conduct. 7. The Applicant also accepts that he incorrectly answered 'No' to the question relating to whether he had been referred or treated for a nervous disorder in the previous 12 months that is referred to in paragraph 7 above. 8. He stated that he was not trying to be misleading in relation to the 'No' answer. He said that he was rushing when he completed the form and that he overlooked the reference to being referred or treated for a nervous disorder. He does not believe that his condition would affect his ability to hold a firearms licence responsibly. He relies on Dr Paul's report in support of this contention. 9. The Applicant does not dispute that a mental health anxiety notation was placed on his driver's licence in May 2022. However, he stated that this was done in error, and it has subsequently been removed. 10. As noted, he is required to undergo a medical assessment by a GP every 2 years. The Applicant's evidence is that his regular GP, Dr Ferdinand Maranaan, conducted a review in May 2022. Dr Maranaan concluded that there was no longer a need to have any such condition placed on the Applicant's driver's licence. Dr Maranaan completed the necessary Roads and Maritime documentation, and the Applicant lodged the documentation at his local RMS registry. Notwithstanding Dr Maranaan's conclusion, the notation was placed on his driver's licence in May 2022 11. The Applicant contacted RMS in September 2022 and pointed out the error. As a result, and the notation placed on his driver's licence was removed immediately. 12. The Applicant stated that he has taken the privilege of holding a firearms licence responsibly, and that in the 9 years that he held a licence he never abused this privilege or posed any risk to the public or himself. He said that he always adhered to the safekeeping of any firearms he acquired and always put safety as a priority when using any firearms. 13. He stated that he has held responsible positions in his employment whilst raising his son on his own. He provided several character references which support his contention that he has been regarded highly in regard to his work. 14. He attributes the panic attack that he suffered in August 2019 to a high stress workload at the time, a breakdown in a long term relationship with his child's mother, and the subsequent situation of his 3 year old son coming into his fulltime care. He said that he was trying to juggle an extremely demanding career whilst driving 2 hours to and from work daily, long hours, and the challenges of being a single father. 15. He said that he is no longer subject to those stresses. He has a new partner and is no longer in a stressful job. As a result, he is in a better place emotionally and psychologically. Consideration 1. This is a matter in which the Applicant's past is in stark contrast to his current situation. There is no doubt that as a young man he engaged in the conduct which resulted in his criminal record. Similarly, his traffic record demonstrates a disregard for the road rules and by implication a lack of proper regard for the safety of himself and others. 2. In my view, the Applicant's criminal history should be given little weight in regard to his suitability to hold a firearms licence. A significant period of time has passed since those offences were committed. They were committed when the Applicant was a young man, and the conduct has not been repeated. 3. The Applicant's traffic record has extended over a significant period. However, with few exceptions, the offences are low-level offences. I accept the Applicant's evidence that his circumstances have changed, and it is reasonable to anticipate that as a result of the changes the pattern of offences will not continue. 4. The Applicant's traffic record is comparable to that considered by Senior Member Gatland in Kemball v Commissioner of Police, NSW Police Force [2023] NSWCATAD 104. At paragraphs [69] – [71] she stated: 9 [T]he traffic record report shows a history, as the Commissioner describes it, of low-level offending, including driving with an expired licence and several offences where Mr Kemball was found to be exceeding the speed limit by more than 10 km/hr but less than 20 km/hr. The most serious offence was in April 2018 when Mr Kemball was fined for exceeding the speed limit by more than 20 km/hr but not more than 30 km/hr while driving a heavy vehicle. 70 Mr Kemball's driving record does not indicate a lack of proper regard for the safety of others. His offending, which the Commissioner submits is "low-level", is not as frequent - or as serious - to place him at the same level as the applicants in Kammoun and Keegan-Jaques or, for that matter, the applicants in El-Ashrafi v Commissioner of Police, NSW Police Force [2017] NSWCATAD 103, Madziala v Commissioner of Police, NSW Police Force [2021] NSWCATAD 269 or Tannous v Commissioner of Police [2011] NSWADT 116. The applicants in those cases, in addition to lengthy and serious histories of traffic offences, had criminal convictions for serious offences or were charged with serious criminal conduct, which reinforced the findings that the applicants in those cases had little regard for legislative and regulatory schemes aimed at ensuring public safety. None of those matters arises in this case. 71 Accordingly, and having regard to the nature and extent of Mr Kemball's traffic offences, I do not consider his history of traffic offences, whether considered alone or cumulatively with the other matters raised by the Commissioner, leads to a finding that Mr Kemball is not a fit and proper person to hold a firearms licence nor that he has demonstrated a lack of proper regard for the safety of others. 1. In regard to the Applicant's traffic record in the present matter I have formed a similar view to that expressed by Senior Member Gatland in Kemball. Given the Applicant's changed circumstances and the removal of the main stressors that were impacting on his life, I do not consider that the Applicant's traffic record, whether considered alone or cumulatively with the other matters raised by the Commissioner, leads to a finding that the Applicant is not a fit and proper person to hold a firearms licence or that it is not in the public interest for him to do so. 2. In regard to the Applicant's mental health, he does not dispute that he has been treated for his condition or that he has been taking medication for it. It is not in dispute that he did not disclose that he had been treated for a nervous disorder or illness in his firearms licence application. I accept the Applicant's evidence that he overlooked the reference to a nervous disorder on the application form and that he did not intend to mislead when he provided incorrect information. However, I agree with the Respondent that the Applicant is prone to rushing. Again, given his changed circumstances it is reasonable to expect that this pattern of conduct will not continue. 3. I am satisfied that Dr Paul was made aware of the Applicant's panic attack history. I am also satisfied that Dr Paul was in a position to assess the Applicant's mental health and to express an opinion in regard to whether there was cause for concern should the Applicant have access to firearms. 4. I do not agree with the Respondent's the view that the Tribunal cannot be satisfied in regard to the Applicant's mental health because the Applicant was not completely frank with Dr Paul. In that regard I accept the Applicant's explanation. The Firearms Registry asked him to provide a mental health risk assessment. In response to that request, the Applicant saw Dr Paul. His evidence was that he passed on the material that he had received from the Firearms Registry to Dr Paul, who prepared a report. In that report, Dr Paul addressed the substantive questions put in the request from the Firearms Registry. 5. Dr Paul reported: Impression and Recommendation Aaron appears very stable from a mental health perspective. It is possible that he had a stress related panic attack once that led to the driving infringement. However, he is taking his medication regularly and has had no further symptoms of concern. Moreover, he has no past psychiatric history, no family history and no substance abuse issues and other trauma related concerns. I do not find any psychiatric reasons for Aaron to not continue having his firearm license. 1. I note the Respondent's submission that Dr Paul's report should be disregarded because in May 2022, that is after Dr Paul's report was prepared, the notation, Mental Health-Anxiety, was placed on the Applicant's driver licence. I accept that the May 2022 condition was placed on the Applicant's driver licence in error and that it has been removed. I therefore give no weight to the Respondent's submission in regard to the May 2022 notation. 2. I agree with the opinion expressed in the internal review that a person should not be penalised for their mental health. The question for the decision maker is whether an applicant's mental health issues give rise to concerns in regard to public safety. A psychiatric assessment is relevant to this issue. 3. Dr Paul's observations and findings were consistent with how the Applicant presented himself in the Tribunal. I accept Dr Paul's findings and opinions. I do not agree with the Respondent's contention that there is reasonable cause to believe that the Applicant's mental health impacts his ability to personally exercise continuous and responsible control over firearms. I am satisfied that there are no mental health issues that would lead to the conclusion that it is not in the public interest for the Applicant to hold a firearms licence. Conclusion 1. On the material that is before me I am satisfied that the Applicant is a fit and proper person to hold a firearms licence. I am not satisfied that it would be contrary to the public interest for him to do so. In the circumstances, the correct and preferable decision is that the Applicant should be issued with a category AB firearms licence. Accordingly, the decision under review should be set aside. Orders 1. The decision under review is set aside. 2. The application by Aaron Paul Taggart for a category AB firearms licence is granted. ********** 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: 19 May 2023