Civil and Administrative Tribunal New South Wales Medium Neutral Citation: GKJ v Commissioner of Police, NSW Police Force [2024] NSWCATAD 306 Hearing dates: 24 June 2024 Date of orders: 15 October 2024 Decision date: 15 October 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: J D Little, Senior Member Decision: The decision the subject of the review is affirmed. Catchwords: FIREARMS ACT – firearms – revocation of licence – contrary to the public interest Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Law Enforcement (Powers and Responsibilities) Act 2002 Firearms Act 1996 Firearms Regulation 2006 Cases Cited: Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 Cramp v Commissioner of Police, NSW Police [2023] NSWCATAD 251 Kogias v Commissioner of Police [2020] NSWCATAD 297 McDonald v Director General of Social Security (1984) 1 FCR 354 Oliver v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 95 Texts Cited: None cited Category: Principal judgment Parties: GKJ (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Self-represented (Applicant) Counsel: J E Curtin (Respondent) Solicitor: Office of General Counsel File Number(s): 2024/00078232 Publication restriction: The publication of the Applicant's name in these reasons is prohibited. REASONS FOR DECISION 1. This is an application brought by the Applicant seeking review of a decision under the Firearms Act 1996 (the Act) by a delegate of the Commissioner of Police (the Respondent). The delegate determined to revoke the Applicant's category AB firearm licence. 2. For the reasons that follow, I affirm the decision the subject of this review. Background 1. On 26 October 2016, police attended the Applicant's restaurant which is subject to an on-premises liquor licence. The purpose of the visit was to conduct an overt audit of compliance with the liquor licence. The police issued verbal warning to the Applicant as well as issuing an infringement notice for liquor with respect to offences observed on the premises. 2. On 2 November 2016, the Applicant's Category AB firearms licence was issued. The application, which was dated 10 June 2016, stated that the genuine reason to hold a licence was "Recreational Hunting/ Vermin Control". The Applicant provided evidence of his membership with the SSAA with that application. 3. SSAA attendance records evidence that the Applicant attained membership of the SSAA on 10 June 2016 but that the membership expired on 30 June 2017. The evidence also supports that in the seven period between when the Applicant attained membership of the SSAA and when the firearms was suspended in May 2023, the Applicant had not attended an SSAA hunting club event. 4. On 4 November 2021, the Applicant re-applied for his firearms licence again citing his genuine reason as "Recreational Hunting/ Vermin Control" and asserting he was a member of an approved hunting club. In that application the Applicant certified that there had been no change in relation to the information and/or documentary evidence that he had previously provided in support of his genuine reason for possessing a firearm. The Applicant was reissued with his category AB firearms licence on 1 December 2021. 5. On 24 April 2023, police attended the Applicant's home in response to an alleged domestic violence incident. On arrival the police spoke with the Applicant's wife who reported that the Applicant had been physically assaulting, threatening, and controlling her for a period of six months. The Applicant was traveling overseas at the time when his wife made the report to the police. The Applicant's wife indicated she wanted an ADVO for her protection and the protection of her two daughters. The Applicant's firearms were seized as required by s 85(2) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). 6. On the same day as the police visiting the Applicant's home and speaking to his wife, the police spoke with the Applicant by telephone (as the Applicant was overseas) and the Applicant denied the allegations. 7. On 24 April 2023, a provisional ADVO was issued. 8. On 5 May 2023, a notice of suspension was issued to the Applicant on the grounds that he had become subject to an ADVO. 9. On 7 November 2023, the application for the ADVO was withdrawn and dismissed. The Tribunal is informed that the police records do not disclose the reason for the withdrawal. 10. With respect to the Applicant's history if traffic offences, between 2009 and 2023 he has committed 13 offences including multiple instances of speeding, several instances of using a mobile phone when not permitted, disobeying traffic lights and failing to wear a seatbelt. Two suspensions of his driver's licence in 2018 and 2015 were converted to good behaviours conditions. 11. On 7 December 2023, a delegate of the Respondent decided to revoke the Applicant's firearms licence. The grounds were, in summary: 1. The Applicant dd not have a genuine reason to hold a firearms licence. 2. The Applicant had failed to comply with his participation requirements for his genuine reason. 3. It would not be in the public interest for the Applicant to continue to hold a firearms licence. 1. On 11 January 2024, the Applicant applied for an internal review of the revocation decision. On 30 January 2024, the decision was affirmed on the ground provided in the additional decision as well as in consideration of the Applicant's history of traffic infringements and breaches of liquor legislation. Legal framework The Tribunal's jurisdiction 1. The Tribunal has jurisdiction to review the Respondent's decision pursuant to s 75(1)(c) of the Act and s 30 of the Civil and Administrative Tribunal Act 2013 (CAT Act). 2. 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 or set it aside and remit for reconsideration. 3. Section 63(1) of the ADR Act provides that in determining an application for a review of a reviewable decision, 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. It makes its own decision in place of the Commissioner's, and there is no presumption that the Commissioner's decision is correct: McDonald v Director General of Social Security (1984) 1 FCR 354 at 357. 4. 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: Civil and Administrative Tribunal Act 2013, s 38(2) (CAT Act). The Act 1. The underlying principles of the Act are outlined in section 3. Relevantly they are: 1. to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and 2. to improve public safety: 1. by imposing strict controls on the possession and use of firearms, and 2. by promoting the safe and responsible storage and use of firearms. 1. Pursuant to s 23(1) of the Act, a firearms licence is automatically suspended on the making of an interim apprehended violence order. Section 23(2) provides that the licence is suspended until the interim apprehended violence order is confirmed or revoked. 2. Sub-section 24(2)(a) of the Act provides that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. Sub-section 24(2)(b)(ii) provides that a licence may be revoked if the licensee contravenes any provision of the Act or the Firearms Regulation 2006 (the Regulation), whether or not the licensee has been convicted of an offence for the contravention. Sub-section 24(2)(d) of the Act provides that a licence may be revoked for any other reason prescribed by the Regulations. Clause 20 of the Regulation states that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence. 3. Additionally, section 12(1) of the Act provides that the Respondent must not issue a licence that authorises the possession and use of a firearm unless the Respondent is satisfied that the applicant has a genuine reason for possessing or using the firearms. Section 12(4) of the Act states: 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 1. The Table to s 12 of the Act includes "Recreational Hunting/ Vermin Control" as a genuine reason. An applicant wishing to satisfy the requirements in respect of this reason must: 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. 1. Clause 31 of the Regulations provides that a licence that is issued for the genuine reason of "Recreational Hunting/ Vermin Control" is subject to the condition that the licensee must comply with any applicable requirements in Part 10 of the Regulations. Part 10 provides that members of an approved hunting club must participate in at least two hunting club events during each compliance period (being consecutive e12 month period determined by the club for the purposes of participation by club members). 2. If this cannot be established, the licensee must notify the Respondent within 14 days after becoming aware that they have ceased to have that genuine reason: clause 15 of the Regulations. Public interest 1. There are many cases, not only in this Tribunal but elsewhere, that have discussed the public interest concept. 2. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 an Appeal Panel of the former Administrative Decisions Tribunal (ADT) said at [25]: The 'public interest' is an inherently broad concept giving the appellant [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. 1. Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 is another decision of the Appeal Panel of the former ADT. At [33] the Panel said: The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system. 1. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court stated at 681: The purpose of the reference to 'public interest' is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commission's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation. 1. As an Appeal Panel of this Tribunal explained in Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 at [24]-[25]: 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). 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. Submissions and evidence 1. The Applicant submitted that the correct and preferable decision was to set aside the decision and reissue the Applicant's firearm because: 1. In response to the SSAA membership, the Applicant denied that he was aware that his membership had expired until it was drawn to his attention when his firearms was revoked. He states that he was unaware when he reapplied for his firearms licence in 2021. He indicated that he had forgotten to renew membership as he "hadn't used it for a while". 2. He alleged that he had attended a rifle range as a non-member two times in June or July 2023 at Silverdale Shooting Range. St Marys Indoor Shooting Centre confirmed in an email that they had the Applicant's attendance of record for 23 November 2021 as a hunting non-member. 3. In response to the domestic violence allegations, the Applicant contends that the circumstances were due to a misunderstanding of the facts by his wife. According to the Applicant, he spoke with the judge and the case was dismissed. In the Applicant's oral evidence he indicated that he denied the allegations and that his wife made the claims to police because the Applicant had gone overseas and she was upset. 4. In respect of the infringement notice of his licensed premises, he contended that he never used the bar licence but kept it for business purposes and that he was new to the system. 5. In respect of his traffic violations, the Applicant acknowledged his mistakes and drew the Tribunal's attention to the fact that he has never used drugs or driven under the influence of alcohol. 1. In addition to the Applicant's oral submissions and oral evidence, the Applicant relied upon 1. The application for administrative review marked "A1". 2. Written submissions marked "A2". 1. The Respondent submitted that the correct and preferable decision was to affirm the decision to revoke the Applicant's firearms licence because: 1. The Applicant has not held a genuine reason for possessing or using a firearm since 1 July 2017 following the cessation of his membership of the SSAA on 30 June 2017. Since that time, the Applicant has not been a member and is still not a member. 2. The Applicant failed to notify the Respondent that he could no longer establish his genuine reason within 14 days of becoming aware in breach of clause 15(1) of the Regulations. 3. The Applicant certified that there had been no change in relation to the information or evidence he had previously supplied when reapplying for a firearms licence which was misleading and false. In this respect, the Applicant took no positive steps to check his membership before lodging his application. 4. For the entire seven-year period between the Applicant first attained membership and when his licence was suspended, he was in breach of his minimum participation requirements for the time he held a firearms licence contrary to clauses 31 ad 108 of the Regulations. Even if the Tribunal was to accept the Applicant's account of attending a firing range as a non-member as summarised above, this would still not comply with his obligations. 5. The Applicant shows an ignorance of the requirements of a firearms licensee or a wilful disregard of those requirements. 6. The Respondent also relied upon the Applicant's traffic history, breaches of liquor legislation and becoming subject to a provisional and then interim ADVO. 1. The Respondent relied upon the following evidence in addition to his oral submissions and cross-examination of the Applicant: 1. Section 58 bundle marked "R1". 2. Supplementary s 58 bundle marked "R2". 3. Respondent's written submissions marked "R3". 4. Statement of Leading Senior Constable Natalie Grimson dated 22 May 2024 marked "R4". 5. Statement of Senior Constable Joshua Panetta dated 24 May 2024 marked "R5". Consideration 1. I accept the Respondent's submissions that the correct and preferable decision is to affirm the decision of the Respondent that the Applicant's firearms licence should be revoked. I find that this is the correct and preferable decision because: 1. The Applicant does not have a genuine reason to possess or use a firearm. 2. The Applicant has failed to comply with his minimum participation requirements relating to the genuine reason of "Recreational Hunting/ Vermin Control" for which he was issued his firearms licence. 3. The Applicant failed to notify the Firearms Registry that he no longer held a genuine reason for possessing or using a firearm within the time required and further, certified that he maintained a genuine reason to possess or use a firearm in his 2021 reapplication. 1. The Tribunal has held that the firearms legislation requires strict compliance: Oliver v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 95 at [23]. I accept that the Applicant's failure to maintain a genuine reason and comply with his participation requirements stems from either a wilful disregard of the requirements prescribed by the Act and Regulations or an ignorance of those requirements. In either case, his conduct represents a continuing breach. Further no satisfactory explanation has been offered by the Applicant with respect to these matters or his failure to notify the Firearms Registry or the provision of untrue information in his reapplication form. 2. The provision of true and accurate information in firearms licence applications is central to protecting the public interest and ensuring the integrity of the firearms licensing system. As stated in Kogias v Commissioner of Police [2020] NSWCATAD 297 at [114]: The functioning of a proper system of firearms licensing is one of the stated objectives of the Firearms Act, which depends on applicants providing true and correct information in a comprehensible manner. … [The Firearms Registry] should be able to rely on the veracity of persons having dealings wit it in determining whether to give an application closer attention. 1. See also Cramp v Commissioner of Police, NSW Police [2023] NSWCATAD 251 at [95]. 2. I am therefore satisfied that it is not in the public interest for the Applicant to hold a firearms licence because the Applicant's conduct shows a disregard for legislative requirements under the Act and Regulations. 3. In respect of the additional grounds relied upon by the Respondent related to traffic offences, liquor licensing requirements and allegations of domestic violence, I make the following findings: 1. While I accept, as submitted by the Respondent, that a history of traffic offences (and in this case, non-compliance with liquor licensing requirements) may, in the appropriate circumstances, show a disregard for public safety and the regulatory regime aimed at ensuring public safety (Tannous v Commissioner of Police [2011] NSWADT 116 at [32]), I do not think these offences, in this case, rise high enough to draw that conclusion. 2. With respect to the Respondent's contentions based upon an alleged history of domestic violence, I do not accept that the evidence that is before the Tribunal is sufficient to establish that history. While I accept that matters where no conviction have been recorded (either because no conviction was pursued, or the criminal proceedings have not yet been heard) can be considered and given any weight in the matter for the reasons in FZQ v Commissioner of Police, NSW Police Force [2024] NSWCATAD 11 at [39] to [42], the Tribunal needs to be satisfied that the conduct occurred. In this case, the Respondent relies upon police reports recording the impressions of police officers of the Applicant's wife account of events where the Applicant's wife gives no direct evidence and which the Applicant has denied and been cross-examined. This is also in circumstances where the charges were withdrawn and there is no evidence as to the circumstances of that withdrawal. In those circumstances, I am not satisfied that the conduct occurred even applying the lesser standard of proof as compared with the criminal standard as applies in this Tribunal: El-Ashrafi v Commissioner of Police, NSW Police Force [2017] NSWCATAD 103 at [37] to [41]. 1. Despite my findings with respect to the Respondent's contentions related to traffic offences, liquor licensing requirements and allegations of domestic violence, I am nonetheless satisfied that the decision the subject of the review be affirmed for the reasons in paragraphs 35 to 39 above. In all the circumstances, the correct and preferable decision is to make the orders below. Order 1. I make the following order: 1. The decision under review is affirmed. ********** 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: 15 October 2024