Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Sydney Pistol Club v Commissioner of Police, NSW Police Force [2012] NSWADT 121
• Hearing dates: 19 March 2012
• Decision date: 21 June 2012
• Jurisdiction: General Division
• Before: C Huntsman, Judicial member

Decision

The decision is affirmed

• Catchwords: Supervision by Pistol Club of firearms possession and use of firearms by unlicensed shooters on the range; unlawful access to firearms; failure to prevent loss and theft of firearm; whether virtually no risk; whether public interest concerns; whether deterrent relevant
• Legislation Cited: Sections 3, 6B, 11, 24, 39 Firearms Act 1996; clauses 19, 87, 110 Firearms Regulation 2006
• Cases Cited: Ward v Commissioner of Police v New South Wales Police Service [2000] NSWADT28; Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149; DP v Commissioner of Police [2007] NSWADT 277; Hill v Commissioner of Police [2002] NSWADT 218; Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276; Brosowski v Commissioner of Police [2003] NSWADT 182; Lynch v Commissioner of Police, New South Wales Police Service (GD) [2006] NSWADTAP 43
• Category: Principal judgment
• Parties: Sydney Pistol Club Ltd (Applicant); Commissioner of Police, NSW Police Force (Respondent)
• Representation: Counsel; S Free (Respondent); Mainstone Lawyers (Applicant); Crown Solicitors Office (Respondent)
• File Number(s): 113244

Judgment

Background

1 The applicant, Sydney Pistol Club Limited, applied for review by the Tribunal, of a decision of the respondent, the Commissioner of Police, New South Wales Police Force, to revoke the applicant's category H firearms licence. The decision of the respondent was made pursuant to section 24 of the Firearms Act 1996 (the Act).

2 The issue for determination is whether the Commissioner's delegate made the correct and preferable decision having regard to any relevant factual material and any written or unwritten law: s 63(1) of the Administrative Decisions Tribunal Act (NSW) 1997 ("the Tribunal Act").

3 The revocation of the applicant's category H firearms licence flowed from events occurring on 22 August 2010. On that date Ms Fernando, a probationary member of the applicant Club, possessed and used a firearm at the applicant's shooting range. She was at that time not licensed under the Act to possess or use a firearm. A legislative exemption in section 6B of the Act provided that Ms Fernando could use the applicant's firearms pursuant to the applicant's category H licence. The legislative exemption required, amongst other things, that the applicant provide "direct supervision" of Ms Fernando's use and possession of the firearms on the shooting range. On 22 August 2010, after using one of the applicant's pistols at the shooting range, Ms Fernando left the shooting range in possession of the applicant's pistol. Subsequently, Ms Fernando used the pistol to shoot her father. Her father died, and Ms Fernando was charged with murder. Two of the Club officials present at the Club on the day were subsequently charged with offences under the Firearms Act and found guilty of those offences. (In respect of one of those persons, whilst the Court found the offence proved the Court did not proceed to record a conviction). The facts surrounding Ms Fernando's access to, and use of, the firearm are further detailed below.

4 On 22 August 2010 the applicant possessed the following approvals and licence under the Act: shooting range approval pursuant to clause 87 of the Firearms Regulation (the Regulation) which permits the operation of the shooting range at the Club; Pistol Club approval pursuant to clause 91 of the Regulation which provides eligibility for members of the Club to apply for a firearms licence for sport/target shooting reasons under s12 of the Act; and the category H firearms licence which was granted to the applicant under s11 of the Act. The licence was granted in September 2009 although the applicant had held earlier category H licences since at least 1999. The current matter concerns only the category H licence.

5 By way of further background it is noted that consent orders were made in tribunal proceedings between the parties in relation to a different matter - on 3 September 2010 the respondent had imposed a special condition on the applicant's range approval (suspending all shooting activities). By consent orders filed at the tribunal in 2011 that special condition was revoked however a number of other conditions were specified (tribunal file 103277; a copy of the order is annexed at tab 7b to the respondent's documents filed in this matter, exhibit R1). The conditions imposed on the range approval by the consent orders included conditions requiring direct supervision on the range by category H licence holders of unlicensed persons operating firearms pursuant to the exception in s6B of the Act.

6 On 27 August 2010 the respondent issued a notice to the applicant suspending the applicant's category H firearms licence. The respondent invited the applicant to provide reasons why the licence should not be revoked and submissions were provided by the applicant. On 19 April 2011 the respondent notified the applicant of the decision to revoke the applicant's category H firearms licence. Of 15 June 2011 the applicant sought an internal review of the decision. On 3 August 2011 the decision was affirmed on internal review. The applicant seeks a review by the Tribunal of the decision.

The evidence

7 The applicant relied on witness testimony, in the written and oral form, from the current President of the Sydney Pistol Club Ltd, Mr Ian George. Mr Ian George was subject to cross-examination. The applicant also relied on expert evidence from a forensic consultant, Professor Coyle, who provided a written report, and gave oral evidence and was subject to cross-examination. As detailed further below, Professor Coyle undertook a risk assessment in relation to the shooting range administered by the applicant. The applicant also made detailed submissions in written and oral form.

8 The respondent provided evidence including the section 58 documents (a bound folder entitled "Brief of Evidence"); a statement by Bradley Grady, Sergeant of Police, which contained a number of annexures including a statement given to police by the Club Captain, Mr Jefferies; a statement by Philip Houlton, General Manager, New South Wales Police Force Firearms Registry. Sergeant Grady was not required for cross-examination, however Philip Houlton gave evidence at the hearing and was subject to cross-examination. The respondent also made detailed submissions in oral and written form.

Evidence about the events of 22 August 2010 and use of firearms at the Club

9 Evidence about the use of firearms at the Club and the applicant's control of the firearms at the Club, as at 22 August 2010, was contained in various documents before the Tribunal, including records of interviews with police and statements given to police by various Club members and officials. Mr Philip Jefferies, Club Captain, in a statement to police dated 22 August 2010 states that in his role as Captain of the Club he operates safety courses which are run prior to people being allowed to become members. Once they pass the safety course Mr Jefferies decides if they are able to use the firearms within the Club. The Club has approximately 13 firearms which Club members can use. There are 5 air pistols, and eight live fire pistols. The Club firearms are not stored at the Club premises but are stored offsite at another Club member's home in an appropriate safe. Mr Jefferies stated that the firearms were stored at the relevant time overnight at the residence of Patrick Slavic. Once the firearms are brought to the Clubfor the day, they are put into a locked office. Only the directors on the Board of the Club have keys to the office. Club members who want to use one of the firearms have to see the duty officer who signs the firearms out and this is recorded on the log. The log is an official Register that must be kept by every pistol Club. The Register has the time that the firearm is taken in and out, the make, model, serial number of the firearm, and name of Club member who is using the firearm.

10 Mr Jefferies was at the Club on 22 August 2010. He was conducting a safety course that day. Three other Board members were at the Club, Patrick Slavic, George Petas, Peter Palmer. George Petas was the duty officer at the Club that day and responsible for signing the Club firearms in and out.

11 Mr Jefferies describes that after completing a second safety course, Ms Fernando became a probationary member of the Club on 4 July 2010. Being a probationary member meant she was permitted to shoot in the Club, but had to participate in six Club matches within a certain time frame to become a full member. On 22 August 2010 Mr Jefferies, while in the office, saw Ms Fernando being issued with a live fire pistol by the duty officer, George Pettus. He saw Ms Fernando sign the Register and take the pistol. He also saw her purchase ammunition, being two boxes of ammunition, totalling 100 rounds. It is normal for members to keep the extra rounds of ammunition they purchase,for use on the next time they come to the Club, according to Mr Jefferies. A short time later Mr Jefferies went to the range and told a couple of the older members to keep an eye on her because it was her first time. He then went back to the Clubhouse and did the theory session of the safety course. Later that day he saw Ms Fernando on the range competing, still using the pistol she had been signed out earlier. He was still on the range with the members of the safety course when he saw Ms Fernando pack up her things and leave the range. He did not see her again. He was advised during the day by Mr Petas that Ms Fernando had also signed for an air-rifle pistol, used it, and signed it back in. When she signed the air rifle back in she told Mr Petas she wasn't feeling well and was going home. Mr Jefferies left the Club about 2:30 pm About half an hour later he received a phone call from Mr Slavik who told him that Ms Fernando hadn't signed the live-fire pistol back in. He then spent time obtaining her phone number, and calling her home phone. He then called the Club to see if they had a mobile phone number for her, they did not have one, so Mr Jefferies rang the police

12 The record of interview between Mr Petas and police, provides further detail, as does the record of interview by police with Mr Slavik. Mr Slavik states that on 22 August 2010 he was responsible for transporting the firearms to the Club. When he was packing up the firearms later in the day at the Club to transport them back to his house, he looked at the Register and saw that one of the firearms had not been signed in as being returned. So he then signed a signature in the register to indicate that it had been returned, without physically checking the firearms to in fact ascertain that it had been returned. It was only when he later unpacked the firearms at his house, into the safe, that he noted that there was a pistol missing. He didn't check the firearms before leaving the Club until he was packing them into the safe at his home. The evidence of Mr Slavik in the record of interview with police was that, in his view, once a person such as Ms Fernando had gone to the safety course, she had proved that she could shoot guns, and such persons were not supervised anymore. People keep an eye on them on the range, but once they prove themselves, they are probationary members, they're not supervised. Mr Slavik agreed that when he went to lunch Ms Fernando was still shooting, and she was unsupervised. He did not agree that there was a requirement that she be directly supervised, as a probationary Club member. He said "doesn't have to be. Any probationary member as far as I can recall, once he goes through the safety courses and all that... They don't have to be supervised like directly somebody just keeping an eye, permanently, I mean like directly on them. Generally the range officer does that and us, like I said before, like... between us, okay."[Answer to Q584/585 police record of interview].

13 Professor Coyle, who reviewed documents in the context of provision of a risk assessment for the applicant, details the events on the day as follows. He notes that 9 am Ms Fernando attended the Club and was issued with the pistol and two boxes of ammunition by Mr Petas. She put the pistol in her backpack and walked to range one, was escorted to range two, pistol was loaded and she and Mr Slavik return to range one to participate in the Club shoot. The range supervisor supervised the shoot, there were 10 people in the shoot. At about 11:30 am Mr Slavik return to the office and secured his pistol: he made no enquiries, nor did Mr Petas, as to the whereabouts of the pistol issued to Ms Fernando. Mr Petas was approached by Ms Fernando who requested an air pistol, he issued it to her. At this time it is clear that she still had possession of the Ruger pistol [according to Professor Coyle]. She had trouble with the air pistol and Mr Slavik let her use his air pistol. At that time neither Mr Slavik nor Mr Petas ensured that the live-fire pistol signed by Ms Fernando was returned. Mr Slavik, Club firearm keeper, did not notice the pistol was missing until he returned home. [The Tribunal notes in the record of interview with the police Mr Slavik indicates the he left the range to put a pistol away at 11.30am and he did not know what Ms Fernando was doing at that time. He later went home for lunch and on his return around 1pm he found his air pistol, which he had lent to Ms Fernando, on the floor. He attended to the air pistol and then he returned to the office, around 1.15pm and noted that a pistol had not been signed in the Register as returned. So he signed for the return of the pistol when he saw the missing signature in the Register, he placed his own signature there. At the time he placed his own signature there he did not check the pistol had been returned].

Evidence in support of the applicant's case

14 The evidence relied on by the applicant is set out in paragraph 7 above. Mr Ian George, current Club President, gave detailed evidence. He stated that he first joined the Club at the age of 18, some thirty eight years ago. He was not the President of the Club on 22 August 2010, at that time he was the Senior Vice President. Mr George details that the Sydney Pistol Club is the oldest pistol Club in New South Wales having been established in 1953 in support of the sport and the 1956 Olympics in Melbourne. In the whole period of his association with the Club he is unaware of any incident at the Club which brought the Club under adverse notice of the New South Wales Police, prior to 22 August 2010. Mr George notes that the New South Wales Police Force, Federal Police and Corrective Services use the Club's shooting range as a backup range for training, and the Club does not charge them a fee. Corrective Service personnel from Long Bay Correctional Centre are currently using the shooting range fortnightly for essential training as the Long Bay Rifle range is in the process of closing. Further, when the Police Centre range was out of action for some two years, the Police used the Club range on a weekly basis. Mr George gives other details of the use of the Club's facilities by the New South Wales Police. He states that the Club has always been happy to allow the use of the range at no cost to such organisations. The Club is often involved in competitions given its close proximity to the airport. It provides ongoing training for Olympic and Commonwealth Games competitors.

15 Mr George details the regulatory framework prior to 2008 in relation to new members of the Club. Mr George notes that in 2008 amendments were made to the Firearms Act and Regulation, specifically section 6B of the Act and clause 110 of the Regulation. The effect of the amendments was to replace the previous process for vetting new members. Mr George notes there is now a system of the self declaration by use of the form known as the P650. Mr George stated his view that Ms Fernando incorrectly completed this form by stating she had no record of mental illness. Mr George states since the amendments in 2008 the Firearms Registry makes no check until the member applies for a probationary pistol licence which may be weeks after joining any Club.

16 Mr George noted that on 22 August 2010 probationary Club member, Ms Fernando, unlawfully removed a pistol and ammunition from the Club premises. She took the pistol home and later that day shot and killed her father. He notes the distress of the Directors and Members of the Club at the event. Mr George states that safety of Club members and the public will continue to be the Club's highest priority.

17 Mr George reports that the Club Captain, Mr Jefferies, did not pass Ms Fernando on her first safety course as he deemed her too excitable. She was required to attend a second safety course a week later, which she passed. Mr George maintains that on 22 August 2010 Ms Fernando was closely monitored on the range all times by the range officer, by two senior members shooting either side of her and tasked to that responsibility by the Club Captain, Mr Jefferies, and also by Mr Jefferies himself who was conducting a safety course adjacent to Range One when Ms Fernando was shooting. There was nothing in her conduct that was of concern to those supervising the range. Mr George was not present at the Club that day.

18 Following the incident on 22 August 2010 an emergency Directors Meeting was held, on 24 August 2010, and bylaws 36 and 37 were added to the Club's rules. At a subsequent date bylaw 38 was also added. Mr George states his opinion that the new bylaws have addressed issues of concern which the Commissioner could have had regarding the issuing of pistols and ammunition to persons on the range. A copy of the bylaws is annexed to Mr George's statement. On 22 August 2010 Mr George Petas was the Duty Director at the Club. Mr George notes that Mr Petas and another Director, Mr Slavik, were charged by police with offences under the Firearms Act and Regulation. Mr Petas was found guilty in the Local Court of selling ammunition to an unlicensed person. Mr George states that there was an Appeal to the District Court and the offence was proved however the Judge decided not to record a conviction. Mr Petas's membership of the Club has since been suspended as he is in ineligible to hold a firearms licence. He is no longer a Director of the Club. The second Director, Mr Slavik, was found guilty by the Local Court of not providing supervision to an unlicensed person while on the range and not taking all reasonable precautions to ensure a firearm was not lost or stolen. Under cross-examination Mr George agreed that when the two Directors were charged they were stood down until they were convicted. When convicted in the Local Court they were both suspended. They are now permanently removed as Directors, and at the end of the Appeal process both were expelled from the Club. (They were up until the convictions permitted to attend the Club participate but not as Directors). Mr George states that after the convictions there was no choice but to follow the rules.

19 After the events of August 2010 the Club asked Professor Coyle to examine safety procedures. The Club also require references to be provided in relation to prospective members- the referee has to say that the person is safe with firearms.

20 Mr George states that the impact of any revocation of the Club's category H licence would be that the Club would eventually have to close. The Club relies on revenue from existing and new members to survive. The revocation of the Club's Category H licence seriously impacts on the Club's future viability: new members who are unlicensed require access to Club pistols so they can undergo training, as required under the Act to enable them to obtain their Probationary Pistol licence and ultimately their category H licence. Members who have obtained their Probationary Licence can only continue to shoot using Club pistols as they are not permitted to purchase a pistol during the first six months. Therefore, without the Club pistols, they cannot continue their training. The lack of Club pistols could not be rectified by access to pistols owned by existing Club Members, in Mr George's view, as most pistol owners do not like to lend their pistols. Mr George states the Club's ongoing viability is reliant upon fees generated by members. Without being able to provide Club pistols to new Members the Club will not attract new membership. This will mean that the Clubwill need to remain viable due to ongoing enrolment of existing Members, and given natural attrition, there will be a drop in membership. Mr George states that membership has dropped steadily since the August 2010 events. He states that since revocation of the Club's H category licence, membership has declined from some 150 members to about 120 members. Mr George notes the change to the Club bylaws, and the retention by the Club of Professor Coyle to provide advice, and that such actions by the Club should reassure the respondent so that the Club should be able to have its licence reinstated.

21 Under cross examination Mr George agreed that Ms Fernando was treated as a Member of the Club once she became a probationary Member. He noted that they did consider that she was shooting under the authority of the P650 form initially, but once she had been given probationary membership the Club then considered that she was someone known to them who was undertaking training. When it was put to Mr George that she was in fact unlicensed, this was conceded. It was put to Mr George that the Club's approach was inadequate and he accepted this. He said words to the effect of "in hindsight we thought we were complying at the time but we weren't." Mr George also gave evidence of his view that the Firearm Registry's website did not really explain to the Club what "direct supervision" meant. It was put to him that the responsibility for complying with the law was the responsibility of the firearms licence holder and he agreed, but also indicated a view that inadequacy of information from the Firearms Registry about the requirements of the new system, after the 2008 amendments, was a contributing factor. Both Professor Coyle and Mr George appear to indicate a view that the Firearms Registry should have been able to access information about Ms Fernando, and their failure to do so was also a contributing factor. However, under cross-examination, Mr George did agree that after the 2008 amendments, a self declaration (P650 form) system was in place and the legislative requirement was for direct supervision of a person shooting on a P650 by the licence holder, in this case, the Club. Under cross-examination about the processes in place Mr George stated that once a person shooting on a P650 became a probationary member of the Club, they were treated in a more relaxed way because there were seen as a member, as known to the Club. As a probationary member of the Club there was a relaxed level of supervision. When it was put to Mr George that this level of supervision was inconsistent with the requirements of section 6B of the Act he stated that the Club understood they were undergoing training and asked people to keep an eye on them. He stated words to the effect of "we did not understand then that she was still shooting under a P650 and needed direct supervision".

22 Mr George maintained that the Club thought that Ms Fernando was off the casual P65o category and thought she was now on a training category as a probationary member and treated her more as a member. It was put to Mr George that becoming a member did not make her licensed and he agreed. It was put to him that there was nothing on the Firearms Registry website in 2010 that could lead the Club to conclude that by becoming a member of the Club, the Club did not need Ms Fernando to comply with section 6B of the Act and Mr George agreed.

23 Mr George stated it was possible that Ms Fernando had returned in possession of the firearm from the shooting range to the Clubhouse unsupervised. He agreed there were no systems in place at the Club to supervise the return of the firearm from the range to the Clubhouse. No one was assigned to walk with her from the office to the range, or return with her, under their previous rules. Under the new rules this lack of supervision would not occur.

24 Under cross-examination Mr George speculated how Ms Fernando had obtained and/or retained the firearm. He stated that she either retained the original pistol when she booked out the air pistol, and went to the pistol range still possessing the original pistol, and then when she returned the air pistol she just left the Club still retaining possession of the original pistol; or, Mr George speculated that the other way it could have occurred was she did return the live round pistol when she booked out the air pistol, and when she returned the air pistol to the secure office, she was let back in by the director to return the air pistol and at that time opportunistically took back the original pistol, placing it in her bag. Mr George agreed both scenarios revealed a lack of security in the Club's processes but re-iterated that this could not happen under the procedures which the Club now had in place.

25 Mr George stated in hindsight, the Club thought they were complying in 2010 with the legislative requirements but they were not.

26 Professor Coyle provided a detailed written report and gave oral evidence to the Tribunal. Professor Coyle provides his opinion that the decision to provide Ms Fernando with more ammunition then she needed was a mistake which had been rectified by procedural changes affected by the Club since the incident (where ammunition is now to be handed out as needed during one-to-one supervision). The decision to have one Club official sign the pistol out, has been rectified by changes to the Club's bylaws requiring that the supervision of probationary members be on a one-to-one basis. He further states:

"having said this, it is considered critical that one person be accountable for issuing and receiving returned pistols. In the event that the issuer has to leave the Club, for whatever reason during the course of the day, rules and procedures must be in place to ensure that clear accountability for this process is allocated to another suitably qualified/experienced individual."

27 Professor Coyle notes that the failure of Mr Slavik to continue supervising Ms Fernando after the shoot, to ensure that she returned the pistol, was a lapse which had been rectified by changes to the Club's bylaws requiring the person providing one-to-one supervision to issue the pistols and ammunition, and by removing Mr Slavik from his position.

28 Professor Coyle finds that the failure of Mr Slavik to check all pistols had been returned, before signing the Register to indicate they had been returned, was a lapse. It is said that this is rectified by changes to the Club's bylaws requiring that the person providing one-to-one supervision issue pistols on the range and ensure that pistols are returned and signed for. Further, Mr Slavik will not be committing any more lapses of this type as he is no longer in a position to. The failure of Mr Slavikto immediately notify the police when he found that the pistol was missing was a mistake however, this mistake does not need any action considering the other steps the Club has taken, in Professor Coyle's view, and noting his additional recommendations. A number of recommendations are made by Professor Coyle for implementation of further measures to ensure accountability for weapons collection and sign off, as well as the installation of physical barriers limiting pedestrian and vehicle access; and use of keys providing access to hot areas. Professor Coyle also states:

"In my opinion the superordinate cause of the tragedy resulting from Ms Fernando stealing a pistol from the Sydney Pistol Club and shooting her father was the failure by Firearms Registry to either access or utilise, for whatever reason, the information as to her mental health extant within the New South Wales Police Force COPS system at the time she applied to become a Probationary Member at the Sydney Pistol Club. Notwithstanding this, is abundantly clear that the systems and procedures extant at the material time within the Club could have been improved. This has since been done.

47. In my opinion, the steps undertaken by the Sydney Pistol Club to prevent a re-occurrence of the tragic incident involving Ms Fernando have been exemplary from a Human Factors Engineering and safety management perspective. Additional steps to failsafe the systems and procedures employed by the Club, to the extent that this is possible are recommended hearin."

29 In his oral evidence Professor Coyle maintained that if all of his recommendations were implemented by the applicant Club, as set out in Professor Coyle's report, then the risk of an event like the event of 22 August 2010, again occurring, would be virtually non-existent.

The respondent's case

30 The respondent relied on the written evidence filed, as set out above in these written Reasons for Decision, and the oral evidence of Mr Philip Houlton, General Manager, Firearms Registry. The respondent also made detailed written submissions. In summary the respondent states that it would not be in the public interest for the applicant to be issued with a category H firearms licence.

31 The respondent provides a chronology of Ms Fernando's interactions with Pistol And Rifle Clubs, her completion of P650 forms at two Clubs, and her application for a personal firearm licence through the Woollhara Rifle Club, in the statement of Mr Houlton. The history of the Ms Fernando's declarations on P650 forms, and application for a firearms licence, is as follows. On 27 June 2010 and 4 July 2010 Ms Fernando completed P650 forms at the Sydney Pistol Club (the applicant). On 4 July 2010 she completed a membership application form, for membership of the Sydney Pistol Club. She provided two written references in support of the membership application - both references related to her lengthy work as a volunteer journalist/producer at a community radio station, including a period of paid employment in 1996. One of the references was dated March 2006 and the other was undated. The references focused on skills and activities undertaken in community radio. A copy of a drivers licence and Australian passport was also provided. It appears that no further P650 forms were filled out at the Sydney Pistol Club by Ms Fernando. Ms Fernando also applied for a personal firearm licence and completed a P561 form as part of the application, on 25 July 2010, which was received by the Firearms Registry on 27 July 2010. Attached to the application was a completed P660 "genuine reason" form indicating sport/target shooting. Principal Club membership was stated on the form as being Woollahra Rifle Club. On the application for the personal firearm licence Ms Fernando stated, in answer to questions about her personal history, and in particular to a question "have you ever attempted suicide or self harm, or in the past 12 months been referred or treated for alcoholism, drug dependence, or mental or nervous disorder or disease?", "yes". She attached a letter detailing this, stating that 12 years ago, in February 1998, she had a psychotic episode and began taking antipsychotic medication and seeing a psychiatrist, and states that since December 2001 she has been regularly in treatment and is considered as being in remission. She further states she has never had a history of self harm or violence, or symptoms which would prevent her from handling a firearm safely. A document from Woollahra Rifle Club evidencing that Ms Fernando is a financial member of the Club is also attached, as is a certificate of completion of New South Wales firearms licence qualification course at the Woollahra Rifle Club, dated 24 July 2010. In relation to the P650 forms completed both at the Woollahra Rifle Club and at the Sydney Pistol Club Ms Fernando answer is "no" to the personal history question on the form "are you suffering from any mental illness or other disorder that may prevent you from using a firearm safely?".

32 The statement of Philip Houlton, General Manager of the Firearms Registry, states in relation to these documents, that Ms Fernando's application for a licence was received by the Firearms Registry on 27 July 2010 and was in the queue to be processed. When the events of 20 August 2010 occurred the Registry was about to send her a request for a mental health assessment. This is the standard process when a licence applicant has answered "yes" to the personal history question about a history of alcoholism, drug dependence or mental or nervous disorder etc. If Ms Fernando had answered "no" to the mental health question, the automated check on her identity would have identified that she was known to police and had incorrectly completed her application. Mr Houlton states that action would then have been taken to refuse the licence under section 70 of the Act. Such background checks for a licence application occur once all other application requirements have been considered and approved and the licence is recommended to issue. The Firearms Registry then conducts a check against police records, prior to photographic advice being forwarded to the applicant to obtain a licence.

33 Mr Houlton states in relation to the completion of the P650 forms that the legislation does not provide for the Firearms Registry to do background checks on such persons. The persons are exempted from such checks by the operation of section 6B of the Act. The Firearms Registry is given no opportunity nor legislative authority to do background checks on such people. Mr Houlton states:

"in fact the introduction of section 6B by the Shooters and Fishers Party was intended to remove that requirement".

34 Mr Houlton notes that had Ms Fernando applied for a firearm licence in August 2008 she would only have been able to obtain a firearm via a temporary Club membership, a probationary pistol permit or a firearms licence, which would have entailed background checks against police records. However, after the introduction of section 6B in October 2008, those requirements were removed and replaced with self declaration (the P650 form). Mr Houlton argues that the removal of the requirement to obtain a police clearance, prior to having access to a firearm, placed greater responsibility on Shooting and Pistol Clubs to ensure strict compliance with the requirements of section 6B and clause 110. Section 6B removes the opportunity for the Firearms Registry to assess the suitability of person such as Ms Fernando - until they lodge an application for a firearms licence. Unlike the temporary Club licence provisions removed with the introduction of section 6B, the Registry has no visibility of such persons unless they answer in the affirmative any questions on the P650 self declaration. However, if a personal licence application is approved, COPS safeguards are in place to prevent the issue of a licence to any person if police records indicate concerns. Ms Fernando's licence application would have hit the central names index and then have been refused - that action would not have been brought to the applicant Club's attention if the Club had not made Firearm Registry aware of her involvement with the Club, because the application for the firearms licence came through the Woollahra Club. Further, had Ms Fernando applied for a firearms licence in early 2008 and had a licence issued, with no declaration of prior mental illness, the Registry would have been alerted immediately to Ms Fernando's assertions to police in late 2008 and action would have been taken to assess her fitness to continue to hold such a licence. [It is stated variously in evidence before the Tribunal that at this time, late 2008, police recorded Ms Fernando as stating that her father had placed electrodes in her head]. The P650 forms were not sent to the Registry until after the murder.

35 Mr Houlton notes statements by Professor Coyle that documents were sent to the Firearms Registry and says this would relate to Ms Fernando's licence application which was undergoing adjudication at that time. That application did not mention her involvement with the applicant Club. Mr Houlton is of the view that Professor Coyle failed to recognise that being a temporary member of the Pistol Club does not authorise possession and use of firearms, and the Firearms Registry has nothing to do with vetting applicants for temporary or probationary Club membership. The Club appears, in Mr Houlton's view, to have a continuing misunderstanding of the distinction between Club member and licence holder. A person may be a Club member and be unlicensed as was the case with Ms Fernando. A probationary pistol licence is not issued until the person has been vetted against police records, and in the interim Clubs must abide by the requirements of section 6B and clause 110, requiring continuing declarations by unlicensed persons. Mr Houlton notes that a P650 form is not required on every occasion if the Club keeps a Register whereby the unlicensed person writes on every occasion, when they access the range, that nothing has changed since the last declaration by P650 form. Mr Houlton notes that the applicant did not maintain such a Register and that Ms Fernando did not fill in further P650 forms, nor sign a Register to say that nothing had changed since the last P650 form had been submitted. This includes on 22 August 2010.

The Law

Relevant Legislation

Firearms Act section 3:

3 Principles and objects of Act

(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.

(2) The objects of this Act are as follows:

(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(b) to establish an integrated licensing and registration scheme for all firearms,

(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,

(e) to ensure that firearms are stored and conveyed in a safe and secure manner,

(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

36 Revocation of an existing licence is provided for in section 24 of the Act

Firearms Act section 24 - Revocation of licence

(1) A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order.

(1A) The Commissioner must revoke a licence that is held for the purpose of employment as an armed security guard (within the meaning of the Security Industry Act 1997 ) if:

(a) thelicensee has failed to undertake any firearm safety training required under this Act or the regulations, or

(b) in the case of a licensee who holds a class P1F licence or a visitor permit authorising the licensee to carry out security activities of a kind authorised by a P1F licence under the Security Industry Act 1997 -the P1F licence or visitor permit is revoked under that Act or the licensee contravenes any condition of the firearms licence under this Act.

(2) A licence may be revoked:

(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or

(b) if the licensee:

(i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or

(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or

(iii) contravenes any condition of the licence, or

(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

(c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or

(d) for any other reason prescribed by the regulations.

37 Section 24(2)(b)(ii) of the NSW Firearms Act 1996 (the Act) provides that the Commissioner may revoke a firearms licence 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. Section 24(2)(a) of the Act provides that a licence may be revoked for any reason for which the licensee would be refused a licence. Section 11 of the Act sets out general restrictions on the issue of firearms licencesand subsections (7) and (8) state:

(7) Despite other provisions in 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;

(8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence.

38 Clause 19 of the Firearms Regulation 2006 stipulates 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

39 Section 19 of the Act sets out conditions of a licence:

19 Conditions of licence

(cf 1989 Act ss 21, 28, APMC 4 (b), 9 (c))

(1) A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.

(2) Without limiting subsection (1), each licence is subject to the following conditions:

(a) the licensee must comply with the relevant safe keeping and storage requirements under this Act,

(b) the licensee must not permit any other person to possess or use any firearm in the licensee's possession if that other person is not authorised to possess or use the firearm,

(c) the licensee must, in accordance with such arrangements as are agreed on by the licensee and the Commissioner, or, in the case of a licensed firearms dealer, at any reasonable time, permit inspection by a police officer (or such other person as may be prescribed by the regulations) of the licensee's facilities in respect of the storage and safe keeping of the firearms in the licensee's possession,

(d) the licensee must not possess, at any one time, any amount of ammunition that exceeds the amount (if any) prescribed by the regulations, unless authorised in writing by the Commissioner,

(e) the licence cannot be transferred to another person.

(3) A licence is subject to such other conditions as may be prescribed by the regulations.

40 Of particular relevance in the present matter is the exception provided in s6B of the Act:

6B Exemption for unlicensed persons shooting on approved ranges and for persons undertaking firearms safety training courses

(1) A person is exempt from any requirement under this Act to be authorised by a licence or permit to possess or use a firearm (other than a prohibited firearm) if the person possesses or uses the firearm only:

(a) at a shooting range approved by the Commissioner in accordance with the regulations and while under the direct supervision of a person who is authorised by a licence to possess or use a firearm of that kind, or

(b) while participating in a firearms safety training course approved by the Commissioner in accordance with the regulations and while under the direct supervision of a firearms instructor approved by the Commissioner in accordance with the regulations.

(2) Any such exemption from the requirement to be authorised by a licence or permit to possess or use a firearm is subject to the requirements prescribed by the regulations.

(3) This section does not apply in relation to a person who is under the age of 12 years

41 Clause 109A of the Firearms Regulation 2006 (the Regulation) also makes clear that there is the exemption for an unlicensed person shooting on approved ranges while the person is under the direct supervision of an authorised licensee:

Exemption for unlicensed persons shooting on approved ranges

109A Exemption for unlicensed persons shooting on approved ranges

The exemption provided by section 6B of the Act (to the extent that it applies to persons who possess or use a firearm at an approved shooting range) extends to any such person while the person is under the direct supervision of a person who is authorised to possess or use a firearm of that kind by a licence issued under the law in force in another State or Territory.

42 Clause 110 of the Regulation provides further requirements in relation to the exemption under s6B of the Act:

110 Requirements relating to exemption for unlicensed persons shooting on approved ranges and for persons undertaking firearms safety training courses

(1) The purpose of this clause is to prescribe requirements relating to the exemption under section 6B of the Act of persons from the requirement to be authorised by a licence or permit to possess or use a firearm.

(2) It is a condition of the approval under clause 87 of a shooting range that a Club or range official must ensure that each person who, in accordance with section 6B (1) (a) of the Act, possesses or uses a firearm at the shooting range but who is not authorised by a licence or permit to do so completes and signs a form containing the following questions before the person uses any firearm at the shooting range:

(a) Have you, in New South Wales or elsewhere:

(i) been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked?

(ii) been the subject of a firearms prohibition order?

(iii) within the last 10 years, been convicted of an offence involving firearms, weapons, prohibited drugs, robbery, violence or terrorism?

(iv) within the last 10 years, been convicted of an offence of a sexual nature?

(v) within the last 10 years, been the subject of a family law or domestic violence order or an apprehended violence order (other than an order that was revoked)?

(b) Are you currently, in New South Wales or elsewhere:

(i) subject to a good behaviour bond?

(ii) subject to an interim apprehended violence order?

(iii) suffering from any mental illness or other disorder that may prevent you from using a firearm safely?

(3) It is a condition of the approval under clause 122 (4) of a person to be an instructor for a firearms safety training course that the person must ensure that each person who, in accordance with section 6B (1) (b) of the Act, possesses or uses a firearm while participating in the course but who is not authorised by a licence or permit to do so, completes and signs a form containing the questions set out in subclause (2) before the person uses any firearm as part of the course.

(4) It is a condition of any such approval referred to in subclause (2) or (3) that the Club or range official, or the instructor, as the case requires, must:

(a) prevent a person from possessing or using a firearm at the shooting range, or as part of the course, if the person has answered "Yes" to any of the questions set out in subclause (2), and

(b) record the name, address and date of birth of each person who possesses or uses a firearm at the shooting range, or as part of the course, in accordance with section 6B of the Act, and

(c) make available for inspection, by the Firearms Registry of the NSW Police Force, any record made under paragraph (b) and any completed and signed forms under subclause (2) or (3).

(5) Without limiting the operation of subclause (4) (a), if the person concerned has answered "Yes" to any of the questions set out in subclause (2), the Club or range official, or the instructor, as the case requires, must prevent the person from possessing or using a firearm at the shooting range or as part of the course.

Maximum penalty: 50 penalty units.

(6) The Club or range official, or the instructor, as the case requires, must ensure that the person who is possessing or using a firearm at the shooting range, or as part of the course, does so only while under direct supervision as required by section 6B (1) of the Act.

Maximum penalty: 50 penalty units.

(7) The record under subclause (4) (b) must also include details of the photo identification of the person concerned or, if the person is a minor, details of the photo identification of a parent or guardian of the minor and a copy of the parent's or guardian's written consent to the minor possessing or using the firearm.

(7A) If a person who is possessing or using a firearm at the shooting range in accordance with section 6B (1) (a) of the Act is an overseas resident visiting the State (an "overseas tourist"), the record made under subclause (4) (b) in relation to that person must also include the following details:

(a) the date on which the overseas tourist used the shooting range,

(b) the name of the person who supervised the overseas tourist at the shooting range.

(7B) A reference in subclause (7) to the photo identification of a person is, if the person is an overseas tourist, taken to be a reference to the person's passport.

(8) In this clause:

"Club or range official" means:

(a) in the case of a Club within the meaning of Part 9-a member of the Club who has been authorised for the purposes of this clause by the secretary or other relevant office holder of the Club, or

(b) in the case of a shooting range-a person authorised for the purposes of this clause by the holder of the approval of the range under Part 8.

43 The sale of ammunition is subject of regulation pursuant to s65 of the Act:

65 Sale, purchase and possession of ammunition

(cf APMC 9 (c), 1989 Act s 17)

(1) A person must not sell ammunition for any firearm unless:

(a) the purchaser is the holder of a licence or permit for a firearm which takes that ammunition, or

(b) the purchaser is authorised to purchase it by a permit,

and the seller has seen the licence or permit.

(2) A person must not purchase ammunition for any firearm unless the person:

(a) is the holder of a licence or permit for a firearm which takes that ammunition, or

(b) is authorised to purchase it by a permit,

and the amount of ammunition that is purchased at any one time does not exceed the amount (if any) prescribed by the regulations.

(3) A person must not possess ammunition unless the person:

(a) is the holder of a licence or permit for a firearm which takes that ammunition, or

(b) is authorised to possess it by a permit.

(4) A person is not guilty of an offence under subsection (3) only because of possessing ammunition that is being conveyed or stored in the ordinary course of the person's duties in the business of a carrier or warehouse operator.

Maximum penalty: 50 penalty units.

44 The firearms licence in issue in the present case is a category H licence (for sport/target shooting). This licence is provided for in s 16 of the Act:

16 Category H licences-restrictions on issue

(cf APMC 3 (c), 1989 Act s 21 re pistols)

(1) The Commissioner must not issue a category H licence to any person unless:

(a) the genuine reason established by the person for being issued with the licence is any one or more of the following:

(i) sport/target shooting,

(ii) business or employment,

(iii) firearms collection, and

(b) in addition to establishing any such genuine reason, the person produces evidence to the Commissioner's satisfaction that there is a special need for the person to possess or use a pistol.

(2) The Commissioner must not issue a category H (sport/target shooting) licence (other than a probationary pistol licence) to a person unless:

(a) the person has previously been issued with a probationary pistol licence, and

(b) the probationary pistol licence has expired, and

(c) the application for the category H (sport/target shooting) licence is supported by a written statement by the secretary or other relevant office holder of the pistol shooting Club of which the person is a member confirming that the person has complied with the conditions specified in section 16A (2).

(3) Subsection (2) does not apply in relation to a person if the person has previously held a category H (sport/target shooting) licence.

45 Safe storage requirements for holders of category H firearms are set out in s41 of the Act:

41 Category C, D and H licence requirements

(1) The holder of a category C, category D or category H licence must comply with the following requirements in respect of any firearm to which the licence applies:

(a) when any such firearm is not actually being used or carried, it must be stored in a locked steel safe of a type approved by the Commissioner and that cannot be easily penetrated,

(b) such a safe must be bolted to the structure of the premises where the firearm is authorised to be kept,

(c) any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the safe containing any such firearm,

(d) such other requirements relating to security and safe storage as may be prescribed by the regulations.

Maximum penalty: 50 penalty units or imprisonment for 2 years, or both.

(2) A licensee does not have to comply with the requirements of this section if the licensee satisfies the Commissioner that the licensee has provided alternative arrangements for the storage of firearms in the licensee's possession that are of a standard not less than the requirements set out in this section.

46 The general requirement for safe keeping and possession of firearms is contained in s 39 of the Act:

39 General requirement

(1) A person who possesses a firearm must take all reasonable precautions to ensure:

(a) its safe keeping, and

(b) that it is not stolen or lost, and

(c) that it does not come into the possession of a person who is not authorised to possess the firearm.

Maximum penalty: 50 penalty units or imprisonment for 2 years, or both, if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or a pistol, or 20 penalty units or imprisonment for 12 months, or both, in any other case.

(2) The regulations may specify the precautions that are taken to be reasonable precautions for the purposes of this section.

47 The Regulation provides for special requirements that shooting range approval is subject to a responsibility to ensure the person using a firearm on the shooting range holds a licence or a permit, with the exception where s6B of the Act applies to the person:

88 Special conditions relating to shooting ranges

Without limiting the conditions to which the approval of a shooting range may be subject, any such approval is subject to the condition that the person who holds the approval for the range must ensure that, before any person uses a firearm at the shooting range, the person is authorised by a licence or permit to use the firearm for the purposes established by that person's genuine or legitimate reason, unless:

(a) section 6B of the Act applies in relation to the person, or

(b) an open day permit under clause 66 has been granted in relation to the shooting range (but only for the period of time specified in the permit).

48 Shooting and pistol Clubs are specifically provided for in clauses 90 to 98 of the Regulation, and clause 90 provides:

90 Definitions

(cf 1997 cl 77)

In this Part:

"Club" means:

(a) in relation to the genuine reason of sport/target shooting-a shooting Club, or

(b) in relation to the genuine reason of recreational hunting/vermin control-a hunting Club, or

(c) in relation to the genuine reason of firearms collection-a collectors' society or collectors' Club,

that has been established for at least 3 months.

"pistol Club" means a shooting Club that conducts or organises approved pistol shooting competitions.

49 With limited exceptions, section 75(1)(c) of the Act provides a person may apply to the Tribunal for a review of the decision to revoke a licence.

50 Section 63 of the Administrative Decision Tribunal Act 1997 ("the Tribunal Act") provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the Commissioner, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

51 A frequently used phrase is that, when conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker.

52 Section 63(3) of the Tribunal Act provides that in determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

Discussion and findings

53 The Tribunal, on review of the respondent's decision, is to decide what the correct and preferable decision is having regard to the material then before it. The Respondent contends that it is not in the public interest for the Applicant to hold a licence.

54 The applicant's case is that given reforms by the Club since August 2010 the applicant should be granted a licence as there would be virtually no risk in the applicant possessing the licence. The applicant is also willing to comply with any further requirements or conditions which the Tribunal might place upon its licence. The applicant relies on the risk assessment by Professor Coyle, as well as the applicant's history as the oldest pistol Club in New South Wales with a previously unblemished record. The applicant states it is relevant that the revocation of the licence puts the continuing viability of the Club at risk through falling membership of the Club. The Tribunal has no reason to reject the evidence of the applicant that for several years the Club has operated without incident (in fact, for some decades). The Tribunal also has no basis to reject the evidence of the applicant, that the applicant makes contributions to the community through allowing public authorities such as police and correctional officers to practice firearms training on the applicant's shooting range free of charge. The applicant also submits that actions of the respondent, through the Firearms Registry, are relevant considerations.

55 The applicant submits that the processes of the Firearms Registry were relevant in two ways: the Police and the Firearms Registry failed to identify risk attaching to Ms Fernando because they failed to advise the Club that she had been recorded as having a mental illness and failed to act on the information provided in her licence application (this application for a personal firearms licence was submitted through the Woollahra Rifle Club, refer above); and the applicant further submits that the instructions on the Firearm Registry website as to what constitutes "direct supervision" were inadequate and provided no guidance to Clubs.

56 The Tribunal finds as follows about these issues. The actions of the Firearms Registry do not alter the applicant's responsibility, as a licensed firearm holder, to comply with the Act and Regulation, to know its responsibilities under that legislation, and to exercise control of firearms, and to only provide access to Club firearms to unlicensed users of those firearms in accordance with the legislation. Much was made in the proceedings of the fact that the Firearms Registry has changed the website after the incident of 22 August 2010. In particular, reference was made to the fact that the explanation on the website in relation to what constitutes "direct supervision" is now much more comprehensive than what was in existence as at 22 August 2010. At that time the website directed that each Club should satisfy itself as to "direct supervision". The Tribunal considers that the new website instructions are more comprehensive and appropriate. However, the prior instructions were not ambiguous, particularly read in the context of the instruction as a whole. Those instructions stated:

"What is direct supervision? This is a matter for each individual Club to interpret and apply, having regard to the safety of participants, the general public and the setup of the range and the premises. Who is authorised to directly supervise unlicensed persons on the range? A person who is the holder of a licence to possess or use a firearm of the kind being used by the unlicensed person may directly supervised the unlicensed person. The supervising person must also be authorised by a Club or range official."

57 The Tribunal considers that the instruction as it stood in August 2010 clearly indicates that whilst direct supervision was to be interpreted by the Club, the supervision was to be by a "supervising person" with experience and authority. The instruction clearly indicates that a person is to directly supervise an unlicensed person: thereby indicating one to one supervision. The instruction in no way indicates that a number of different people may supervise the unlicensed person at the same time as they are doing other activities on the range.

58 Further, the Tribunal considers that the obligation is on the holder of a firearm licence to ensure that they understand their legislative obligations. It has been made very clear that a firearms licence is a privilege, not a right, and in such a context it is clear that the holder of the privilege has the responsibility of ensuring ongoing compliance with the legislation which extends the privilege to the licensee. The Tribunal has detailed the history of Ms Fernando's licence application because the applicant submitted this as being material; however, the Tribunal cannot see how this explains or excuses the applicant's failures on 22 August 2010. Those failures were comprehensive and multiple. Two Club officials were charged and convicted in relation to those failures, although the applicant Club was not subject to prosecution. [Mr Slavik was charged with a breach of section 39 (1)(B) of the Act - not prevent theft/loss of firearm; and also with a failure to provide direct supervision; and Mr Petas was charged with selling ammunition in breach of section 65(1) of the Firearms Act]. In the Tribunal's view the failures by the Club on 22 August 2010, some of which were direct breaches of legislative requirements and some of which were failures to ensure safe and responsible use of firearms, include:

• A failure to directly supervise a shooter on the range, who was unlicensed, being Ms Fernando;
• A failure to comply with s6B of the Act through failing to require Ms Fernando as an unlicensed person to complete a P650 form on each occasion;
• general ignorance of the legislative requirement for such direct supervision - the evidence of Mr George and Mr Slavik indicates that the Club did not generally comply (probationary members who were unlicensed were generally not subject to direct supervision);
• a failure to keep control of firearms given to an unlicensed person at the Club - is clear from the evidence that Ms Fernando was able to possess the pistol unsupervised at the Club after it was signed out to her, including walking around the Club premises and to and from the range with the pistol in a bag. It is also clear on the evidence that she was able to leave the Club with the pistol;
• a failure to properly keep a record of the person possessing the firearms of the applicant Club - the evidence is that Mr Slavik, when he saw that the register did not have a signature entry for the return of the pistol signed out to Ms Fernando and used by her, signed the register himself without physically checking to see that the pistol had been returned;
• allowing Ms Fernando to possess and use on the range the air-pistol of Mr Slavik without directly supervising her use of the air-pistol on the range;
• a failure to comply with s65 of the Act in relation to sale of ammunition; and failure to ensure safety by retaining rounds not used on the range by the unlicensed person, thereby allowing an unlicensed person to be sold "take home" ammunition;
• a failure to safely supervise unlicensed persons - the supervision was by club officials who were also themselves engaged in other activities such as a shoot, and who were not individually responsible for the unlicensed person;
• failure to have clearly delineated roles as to who was responsible for ensuring supervision of unlicensed persons on the range.;
• lack of security at the Club - there is a clear indication in the record of interview by police [answers to Q237 -Q241] with Mr Slavik of the possibility, under systems then in place, for a person to walk out of the Club in possession of one of the Club firearms, undetected, "But we've been doing it for decades ever since the Club was established"[Answer to Q241]

59 The applicant submits that the failures have been addressed by the Club through changes and reforms instituted by the Club after 22 August 2010. Professor Coyle's report gives details of the reforms, and of other protective measures which could also be adopted. In particular the applicant relies on changes to the Club bylaws. A reading of bylaw 38 indicates that it provides for adherence with the legislative requirement of direct supervision and states that - firearms to be used by an unlicensed member must be booked out and returned by the fully licensed Club member who is providing one-to-one supervision. Ammunition to be used by the unlicensed member must be issued strictly as required for the series or shots to be fired and all ammunition must remain in the possession of the fully licensed person providing one-to-one supervision. New bylaw 37 notes that any firearm booked out to probationary photo licence holders who are not yet eligible to obtain a firearm, at the time of booking out a pistol, will have their shooting Bay number [on the range] also recorded so range officers together with the duty person in charge of Club pistols on the day can ensure further compliance with bylaw 36. Bylaw 36 provides that a member who has booked out a Club pistol and fails to have it signed back into the Register and leaves the Club with the pistol will have their membership terminated. The evidence of Mr George is that immediately following the events of 22 August 2010 at an emergency directors meeting bylaws 36 and 37 were added to the Club's rules. Bylaw 38 was added at a later date. In his oral evidence at the hearing Mr George also referred to further action taken by the Club, namely engaging Professor Coyle to examine their procedures; and changing their reference requirements for prospective members to include a requirement that the reference is contemporaneous and the referee has to make a statement that the person is safe with firearms.

60 The Tribunal must decide what is the correct and preferable decision, according to the law and the evidence in this matter. The evidence has been set out in some detail in these written Reasons for Decision. The Tribunal's findings are also detailed above. The respondent submitted that the Tribunal should consider the importance of deterrence in deciding the present matter. The Tribunal does not accept that the Firearms Act 1996 includes considerations of general deterrence, nor does it give the Tribunal this specific function. However, it might be argued that the decision of the Appeal Panel in Lynch v Commissioner of Police, New South Wales Police Service (GD) [2006] NSWADTAP 43 provides some basis for such an approach:

It is necessary for an administrator to take a stand in dealing with serious contraventions that is seen as credible by the broader community, and sends the appropriate signal to licence-holders as to what is unacceptable. The administrator and the Tribunal can not take an approach, as seems to have been urged on behalf of Mr Lynch in this case, that ignores the systemic implications of its decisions.

61 However, I have not decided this case on the basis of sending a message to licence holders or to provide general deterrence. In deciding the current matter I have focused on the evidence in this particular case, the findings of fact which I have made as set out in these Reasons for Decision, and the applicable legislation. I have also considered guidance offered in prior tribunal decisions. In this matter I have also carefully considered the issue of whether it would be contrary to the public interest for the applicant to be licensed. That the public interest is a consideration for the Tribunal is clearly set out in the legislation: refer sections 11(7) and 24(2) of the Act set out above (and also s11(8) of the Act and clause 19 of the Regulation).

62 A discussion of relevant case law was set out by the Tribunal in the case of Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276:

69 The Applicant's individual interest in retaining his licence must be subordinate to the public interest in ensuring public safety. This position is supported by the decision of Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 where it was stated at 681:

"The purpose of the reference to 'public interest is to ensure that private interests are not only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation."

70 In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at paragraph [25], the Appeal Panel said that the 'public interest' "is an inherently broad concept giving [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual".

71 There is discretion with respect to whether to revoke the licence in this case. The Tribunal has previously found that any discretion must be exercised to promote the objects of the firearm legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and the discretion is to be exercised in clear preference to the public interest than an individual's private interests. That view has been followed in numerous decisions and I agree that it is the correct approach to be taken in this matter.

72 In Wilkinson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 59 Deputy President Hennessy stated at paragraph [25]

25 As the Firearms Act does not list factors which a decision maker must take into account when exercising a discretion about revocation, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act. ...

73 A firearm licence is a privilege and not a right. Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 at paragraph [25].

74 The underlying principles of the Act stated in section 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at paragraph 28, Deputy President Hennessy said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk".

63 The likelihood of risk is to be assessed by reference to relevant prior conduct: Brosowski v Commissioner of Police [2003] NSWADT 182 at [41].

64 In the case of Bottomley v Commissioner of Police, New South Wales Police [2005] NSWADT 211 the Tribunal observed:

Nevertheless, I am satisfied that his conduct indicates a lack of attention to the storage requirements of the Act. In my view, the Commissioner is rightly concerned that all licensees have an appropriate level of understanding and appreciation of these requirements. While I am satisfied that Mr Bottomley's failures are on the lower end of the scale of firearm offences, they evidence an attitude that is still significant.

19 One of the underlying principles of the Act is the improvement of public safety by imposing strict controls on the possession and use of firearms, and promoting the safe and responsible storage of firearms. Ensuring that only permitted firearms are in the possession of licensees and that those firearms are stored in a safe and secure manner decreases the likelihood that they may be used in committing serious offences against the community. It is clear from the legislation that Parliament has identified these matters as central and critical objectives of the legislation. Those principles and objectives have been reinforced in numerous decisions of this Tribunal. Mr. Bottomley's conduct must be viewed with reference to them. Parliament did not leave the matter of the manner in which firearms are to be stored to the discretion of licence holders but instead elected to impose detailed and prescriptive requirements on all licences.

65 In the case of DP v Commissioner of Police, New South Wales Police [2007] NSWADT 27 the tribunal considered the public interest provisions of the Act, the case also focussed on the consideration which could be given to spent convictions. The tribunal found in that case that the applicant's conduct was risky and exhibited a lack of understanding of obligations under the Act. The tribunal stated:

57 In my view the circumstances relating the conduct which led to DP being charged, and the other conduct detected at that time with respect to his possession of an unregistered firearm and his intention to use a registered firearm in a foolhardy and risky manner, give rise to significant public interest concerns should DP continue to hold a firearms licence. I refer not only to the overriding public interest in protecting the public safety, but also to the public interest in ensuring that licence holders have an understanding of their obligations, and the maturity to follow them, as well as the public interest in ensuring the maintenance of a credible and consistent licensing regime, which ensures that the possession of a firearms licence is privilege in accordance with the principles and objects of the FA Act. Those concerns are sufficient to justify the revocation of his firearms licence on public interest grounds.

66 The Tribunal observed in Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149 :

27 The Firearms Act 1996 sets up a comprehensive scheme for licensing persons in New South Wales to possess and use firearms. The principles and objects of that Act are set out in section 3. Relevantly they are to confirm that firearm possession and use is a privilege conditional on the overriding need to ensure public safety and to improve public safety by imposing strict controls on the possession and use of firearms.

28 This was acknowledged in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at 27:

"One of the objects of the Act, as set out in s 3, is to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety."

29 This principle has again recently been confirmed as fundamental to the Firearms Act 1996 in Rosenboom v Commissioner of Police, New South Wales Police [2006] NSWADT 10 at paragraph 20.

30 At paragraph 28 of Ward the Tribunal continued:

"The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk."

31 Although in that case the consideration for the Tribunal was whether the Applicant themselves would pose any risk to public safety if access to firearms were granted, similar considerations apply in the present case. Given the breadth of the Commissioner's discretion and the overriding object of public safety there is no basis for differentiating between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence.

32 Public safety is not defined in the Firearms Act 1996. However, the Tribunal's Appeal Panel considered the public interest in the context of security industry licencing in Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9. At paragraph 25 it stated that the public interest is:

"... an inherently broad concept giving the [decision maker] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual.

33 These comments have been held to apply equally to the firearms legislation (see Ward at para 33).

34 See also Comalco Aluminium (Bell Bay) Ltd v O'Connor & Ors (1995) 131 ALR 657 at 681:

"The purpose of the reference to public interest is to ensure that private interests are not only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation".

35 Public safety is similarly broad and involves similar considerations.

67 In the case of Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218, which was a case where the public interest was the only ground relied upon for revocation, the tribunal observed:

21 The sole ground relied upon by the Respondent in these proceedings was cl 17 of the Regulations which provides that a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue hold that licence.

22 I accept Mr Lunney's submission that the fact Mr Hill committed an offence under the Firearms Act of itself does not mean that his licence must be revoked. The relevant offence is not an offence, which leads to automatic revocation. (See for example s 24(1) of the Firearms Act). While the consequence of licence revocation may be that the licensee is in effect "punished" the discretion granted under s 24 should not be exercised for that purpose alone. Conversely, of course, a decision maker should not shy from an exercise of that discretion merely on the grounds that the licensee may suffer hardship and or inconvenience. While not determinative, an offence under the Firearms Act and/or a breach of a condition of licence will, in my view, be highly relevant to a decision to revoke a licence. All of the circumstances surrounding the offence must be taken into account.

23 The evidence shows that the victim of the shooting incident mercifully suffered only minor injuries. This does not detract in any way from the serious nature of the incident and Mr Hill's conduct. As he properly acknowledges, the incident could have ended tragically. The evidence shows that Mr Hill who had significant experience with firearms allowed two young boys, one unarmed and unlicensed, to run off into dense shrub, away from his view, in pursuit of a wild pig. The only conclusion that can be drawn is that Mr Hill was reckless in the supervision of his firearm. It is relevant that he had consumed alcohol before the incident. While the evidence does not indicate that Mr Hill was intoxicated or affected by alcohol at the time of the incident (nor is that the Commissioner's contention), in my view the consumption of any alcohol prior to the firearm use shows a serious lack of judgment and must be seen as reckless conduct.

24 The critical issue for determination is whether it is in the public interest for Mr Hill to continue to hold a firearms licence. As mandated by the legislation, public safety is to be given paramount consideration in any licensing decision. I concur with the view of Deputy President Hennessy in Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 [at 23] that the discretion to revoke a licence should be exercised in a way that promotes the responsible use of firearms. The legislation does not prescribe the factors to be taken into account in the exercise of this discretion. However in a case such as this it is apparent that a critical issue to be determined is whether the behaviour that gave rise to the offence will be repeated.

25 Mr Hill's sons now hold appropriate firearm licences. In my view there is little if any risk that Mr Hill will once again allow his firearm to be used by an unlicensed person . It is more difficult to determine whether he will in the future fail to maintain the high standards of care and concern for public safety as mandated by the legislation.

26 Mr Hill says, and I accept, that he is contrite and deeply regrets the incident. He claims that there is no chance of a repeat offence or of any offence relating to firearms. There is character evidence before the Tribunal that attests that Mr Hill is unlikely to re-offend and/or act in an inappropriate way in the use and possession of firearms.

27 This is the only offence (or adverse notification) in Mr Hill's otherwise unblemished history in dealing with firearms. However, I note that this is not the first time that he allowed an unlicensed minor to use his firearms, nor could I be comfortably satisfied on the material before me that this was the sole occasion he failed to exercise a reasonable level of care and supervision in respect of the use of his firearm.

28 It is course impossible to say with absolute certainty how any individual will behave in the future. The Commissioner is properly concerned that Mr Hill's serious lack of judgment and failure to properly supervise his firearms may be repeated. As I understand Mr Tunks to argue, notwithstanding the applicant's good character given the seriousness of the incident the public interest dictates that a decision maker err on the side of caution and, in effect, guarantee, by the revocation of the licence, that a similar incident will not be repeated.

29 Despite the fact that Mr Hill has shown genuine contrition and acknowledges the seriousness of the matters that gave rise to his licence revocation I am not satisfied on balance that that conduct and or similar conduct will not be repeated. Accordingly taking into account all relevant considerations, in my view it is not in the public interest for him to continue to hold a firearms licence.

68 The Appeal Panel of the tribunal in Lynch v Commissioner of Police, New South Wales Police Service (GD) [2006] NSWADTAP 43 stated at [46-48]:

46 The regulator of a licensing scheme will frequently be dealing with situations where licence-holders have not previously come to notice. Again, some allowance will often be made if the licence-holder's conduct is minor or has some special explanation.

47 In this instance the contraventions were numerous and very serious. That Mr Lynch escaped a criminal conviction does not mean that he should therefore automatically escape an administrative sanction against his licence. It is necessary for an administrator to take a stand in dealing with serious contraventions that is seen as credible by the broader community, and sends the appropriate signal to licence-holders as to what is unacceptable. The administrator and the Tribunal can not take an approach, as seems to have been urged on behalf of Mr Lynch in this case, that ignores the systemic implications of its decisions.

48 In our view, the contraventions that occurred in this case were serious enough, giving due weight to Mr Lynch's history and the explanations given for his conduct, to make the Commissioner's and Tribunal's decisions the correct and preferable ones in exercise of the discretion given by s 24(2)(b)(ii). Similarly the separate 'public interest' basis for the decision was available in the circumstances. There were aspects of his conduct and explanations which gave rise properly, we think, to the concerns expressed about his misunderstanding of current policy in relation to the personal possession of firearms.

49 The new material filed in these proceedings (evidence of the course undertaken by Mr Lynch) shows a preparedness, we accept, to deal with the problem. It is also to Mr Lynch's credit that he acknowledged his guilt from the outset.

50 In our view, the decision of the Tribunal and the Commissioner should not be disturbed. In our view it remains the 'correct and preferable' one.

51 On the other hand, we think the 'public interest' case is not as strong as it was. Mr Lynch is contrite and has taken remedial steps. It may be that at some point in the future the Commissioner might be prepared to reissue a licence, possibly subject to special conditions in relation to the type and number of weapons that can be held and their manner of storage.

69 As set out above in these Reasons for Decision, in the present matter there were a number of breaches of the Act and the Regulation in relation to the applicant's category H firearms licence and office holders of the applicant Club were prosecuted in relation to some of those breaches. Of significant concern to the tribunal is the lack of awareness of the applicant of its obligations under the legislation. The general tenor of the applicant's written material, submitted to the respondent and the tribunal, is of concern to the tribunal: there is significant focus in the material on the alleged responsibility of the Police and Firearms Registry, rather than a recognition and acknowledgment of the applicant's breaches of the Act and Regulation and failures to ensure safety of its firearms. The applicant's suggestion that the events could have been avoided if the respondent had notified the applicant of the mental health status of Ms Fernando, is a further indicator of the lack of acknowledgment/responsibility by the applicant, for its breaches of the legislative requirements and for its failure to provide the public with safety in relation to use of the applicant's firearms. The mental health status of Ms Fernando is not the issue - it was the applicant's lack of compliance and lack of safe keeping of firearms which is the issue - a violent person who is not mentally ill, on the evidence in this case, could have made off with a firearm and harmed the public. It is not Ms Fernando's mental health, but the applicant's failure to safely control firearms and to comply with legislation aimed at ensuring public safety, which is the issue.

70 As discussed in paragraphs 54 to 57 above, I also do not accept that the instructions on the website of the Firearms Registry were a cause of the events of 22 August 2010, or the reason for the applicant's failures - the reason was the applicant's lack of knowledge of its legislative obligations and subsequent failure to ensure the safe possession and use of its firearm. I also consider that the applicant's submission that the Firearms Registry was responsible, is further indication of the lack of acknowledgment by the applicant of its failures and lack of real contrition for such failures.

71 The lack of acknowledgment by the applicant of its primary responsibility for the events of 22 August 2010, in particular the responsibility which flowed from a failure by the applicant to keep safe its firearms, and to allow a pistol to be possessed, retained and used by an unlicensed person, concerns the tribunal. My concern is that without such acknowledgment of responsibility I cannot be satisfied that the applicant will take responsibility for safety of its firearms in the future. Without acknowledgment of responsibility, it is hard for the tribunal to find that the applicant will be able to implement and commit to reform of its practices so as to ensure there is no risk of repeat behaviour. Given the applicant's lack of knowledge of the legislative requirements as a holder of a category H firearm licence, and the lack of a real acknowledgment of its failures in this respect, I cannot be satisfied as to future responsible compliance. As such I cannot be satisfied that there is virtually no risk in the applicant retaining a category H firearms licence.

72 In so finding the tribunal has considered and given weight to the risk assessment which the Club arranged through Professor Coyle. Professor Coyle expresses the same view that the main cause of the incident was the failure of the Firearms Registry to identify Ms Fernado as a person of risk. For reasons discussed above the tribunal does not agree with this view. Professor Coyle also makes recommendations for further safety measures which could be implemented and states the view that with the measures introduced to date by the applicant there is now virtually no risk of another incident. However, Professor Coyle does not address the problem of the applicant's ignorance of its legislative obligations, and lack of demonstrated commitment to ensuring compliance, in making his assessment and recommendations. Yet it is this area of the applicant's conduct which causes the tribunal to not be satisfied that there is virtually no risk. In making this finding the tribunal has also considered that there are now special conditions on the applicant's range authority which provide further direction to the applicant in relation to ensuring direct supervision of unlicensed persons. However, these further conditions which make clear the legislative obligations of the applicant, do not remove the tribunal's concerns. There is no evidence of a period of demonstrated commitment by the Club to compliance with the legislation which would address such concern. Nor is there evidence of an acceptance by the Club of its responsibility for past failures, which could reassure the tribunal that future non-compliance with legislation or future breaches of firearm safety are unlikely. Nor do the new bylaws, in the context of an ongoing attitude by the applicant to assert that the fault lies with the Police or Firearms Registry, reassure the tribunal of real reform by the applicant.

73 In relation to the public interest, noting the objects of the Act, in particular to ensure public safety through responsible use and storage, and control of possession, of firearms, the tribunal cannot be satisfied that it is in the public interest for the applicant to be licensed. It is not in the public interest for the Club to be extended the privilege of a firearms licence given that there have been such serious breaches of the legislative requirements, (which led to a firearm being possessed by an unlicensed person), and given the Club's lack of acknowledgment of responsibility for those breaches, and lack of contrition. It is not in the public interest for a Club to be licensed where the Club has been demonstrated to have failed to keep firearms safe, and to have been ignorant of its legislative obligations, and to have not acknowledged responsibility (given the ongoing focus on blaming the police and firearms registry). The applicant has expressed regret for the tragedy but not contrition for its failures.

74 I consider that it is contrary to the public interest for a firearms licence to be retained by a Club who is not responsible in observing the obligations of the Act and Regulation, and which has demonstrated a lack of responsibility in exercising control over the firearms. I concur with the view of Deputy President Hennessy in Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 [at 23] that the discretion to revoke a licence should be exercised in a way that promotes the responsible use of firearms. I concur also with the approach of the tribunal in DP v Commissioner of Police, New South Wales Police [2007] NSWADT 27:

I refer not only to the overriding public interest in protecting the public safety, but also to the public interest in ensuring that licence holders have an understanding of their obligations, and the maturity to follow them, as well as the public interest in ensuring the maintenance of a credible and consistent licensing regime, which ensures that the possession of a firearms licence is privilege in accordance with the principles and objects of the FA Act. Those concerns are sufficient to justify the revocation of his firearms licence on public interest grounds.

75 In so finding I have also considered the private interests of the applicant in retaining the category H licence and I accept that the financial viability of the Club may be at risk, and the future of the Club, without the licence. However the authorities cited above indicate that in the context of the Act and its object of public safety, the public interest in ensuring public safety is paramount.

76 I have considered whether the applicant should be issued a category H licence subject to special conditions to address compliance and safety, and have also considered in this context the conditions on the range authority. However, given my findings about the applicant's lack of contrition and lack of acceptance of responsibility, in which any real reform of poor practice must be grounded, I am not satisfied that this would ensure that there was virtually no risk.

77 Further, in relation to the issue of whether a licence might be issued with special conditions, I have found, as discussed above, that it is contrary to the public interest for the applicant to be the holder of a category H licence. I consider that the public interest requires, on the evidence in this case, that the applicant evidence a demonstrated commitment to ensuring legislative requirements are met, and as such demonstrates a responsible approach to firearms safety and its legislative obligations.

78 Such commitment might be demonstrated by implementation by the Club of accountable and responsible systems to ensure safety through compliance with legislative obligations. It might be that a system could be adopted similar to that noted by Professor Coyle set out at paragraph 26 above, but perhaps more extensive. The Club might also consider voluntarily adopting Professor Coyle's further recommendations. Perhaps after a period of time, of demonstrated commitment to reform of Club practices, and a period of demonstrated commitment to a culture of legislative compliance and firearms safety, then a further application for a licence could be made. However at the current time, on the evidence before the tribunal, the tribunal finds that it is contrary to the public interest for the applicant to be the holder of a category H licence. Accordingly the correct and preferable decision, on the evidence and according to law, is that the decision of the respondent to revoke the applicant's category H licence be affirmed.

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Decision last updated: 21 June 2012