Administrative Law - firearms licensing - revocation of licence - public interest.
Source
Original judgment source is linked above.
Catchwords
Administrative Law - firearms licensing - revocation of licence - public interest.
Judgment (14 paragraphs)
[1]
The Applicant previously held a firearms licence as a primary producer for approximately two years. She understands that firearm possession and use is a privilege that is conditional on the need to ensure public safety.
She is in good physical and mental health and has submitted the Akers report as a testament to her health and her capacity to hold a firearms licence. She says that she is a fit and proper person to hold a firearms licence.
[2]
Her evidence is that she is employed as an interstate truck driver, a part time farm assistant and a Primary Producer. She held a Primary Producer firearms licence which she used to humanely euthanize sick or injured livestock as well as controlling vermin such as foxes.
She does not dispute that she took antidepressants/anxiety medication for a brief period during the drought. However, she said that she didn't take the medication for long as the side effects of drowsiness was affecting her casual truck driving.
With respect to her conviction for assault she says that on the day of the incident that resulted in the charge she had acted in self-defence. When interviewed by police she had no legal representation and she had made admissions. She was subsequently told that once she had given a police statement she would not be able to change the statement. She said that she did have legal representation for the hearing but that her legal representation was poor. She also said that she had entered a guilty plea to keep her former partner out of trouble and to make every attempt at sustaining the relationship with him.
Her evidence is that her former partner told her that he had gone to the Armidale Police station to drop the charge and to revoke the ADVO. She received no paperwork or documentation to verify that this had been achieved. However, she took her former partner at his word. She was of the genuine belief that the charge had been dropped and that the ADVO revoked. She said that she never intended to provide false information on her firearms application.
She referred to a training course that she had undertaken as demonstrating that she had shown initiative in developing her understanding of her obligations as a licensee. She enrolled in the firearms training and safety training course, which was a pre-licensing requirement. She also obtained a certificate to be able to euthanase livestock foot and mouth disease encroached on the state of NSW.
With respect to the Akers report she said that the Firearms Registry had requested that she see a psychologist for risk assessment/mental health assessment. She had done so and obtained the report from Dr Akers.
[3]
Ms Amanda Akers, Clinical Psychologist carried out an assessment in relation to the Applicant in September 2024. The Applicant consulted Ms Akers at the request of the Firearms Registry following the suspension of her firearms licence. Much of the background information contained in the report was provided by the Applicant.
Ms Akers reported that the Applicant completed a Bachelor of Rural Science (Hons), and a Master of Agriculture. She reported being in good health. And that she has not suffered from suicidal ideation or thoughts of self-harm. Ms Akers carried out psychological testing and found that the Applicant showed a high level of self-awareness and insight into her thoughts, feelings, and behaviours, and her mood and mental status.
Ms Akers reported that the results of the assessment indicate that the Applicant:
provided consistent responses.
attended appropriately to item content.
did not attempt to present a more negative impression than was warranted nor to portray an unrealistically favourable impression.
was being as honest as the average person, and was not attempting to portray mental illness.
was not being defensive in her responses.
Ms Akers reported that these findings indicate that the Applicant's test results were valid. Further, the assessment indicates that the Applicant:
is not suffering from a formal thought disorder or mood disorder.
is modest and retiring, self-conscious in social situations, not overly skilled in asserting herself, and uncomfortable when she is the focus of attention.
does not place a high premium on close lasting relationships.
views herself as independent, practical and less pre-occupied with the opinions of other people.
was not experiencing symptoms of depression, anxiety, or stress at the time of the assessment.
was not suffering from a formal thought disorder or a mood disorder.
was devoid of grudges or resentments, with appropriate respect for the community and the law and regulations.
was able to end the relationship with her former partner and keep herself safe and protected by making contact with police as required.
is not an aggressive person, she has stable mood and has a decent level of insight into her thoughts, feelings, and behaviours.
is a supportive and caring person, with a focus on handling animals in a humane manner.
Ms Akers concluded that as the Applicant is not suffering from a mental illness, has good insight into her thoughts and behaviours, significant experience running a farm under the guidance and support of her father, and manages her firearms for legal purposes, she does not pose a threat to public safety (or a threat to her own safety) if in possession of a firearm.
[4]
Mr Battersby is a work colleague who provided a personal character reference in support of the Applicant's application. He has known the Applicant for three years, during which time he has come to admire her for her exceptional personal qualities and achievements outside of work.
He said that he cannot recommend her enough for her firearms re-instatement.
[5]
Mr Kalinowski has worked alongside the Applicant for approximately 10 years. He said that in that time she has always shown the utmost integrity and accountability. She has proven herself as strong, courageous, dependable and always willing to go the extra mile to help her colleague and always places animal welfare as her number one priority.
Mr Kalinowski said that outside of work, the Applicant has shown determination and motivation throughout her studies, ultimately achieving a Master of Agriculture. She also volunteers at the Armidale Regional Animal Shelter on weekends; feeding and cleaning the cages of the homeless cats and dogs as they wait for adoptions. In her personal life, the Applicant is a talented athlete.
Mr Kalinowski said that the Applicant is an intelligent, compassionate and competent person who is able to hold and use a firearm licence responsibly and within all facets of the law.
[6]
With respect to the ADVO the Applicant contends that she was in a relationship in which there were extensive periods of domestic violence perpetrated by her then partner. As a result, she was put in a position where she had to physically defend herself.
A report by her then partner resulted in a police-issued AVO being issued against her. She was legally represented when she attended Court and plead guilty to common assault. Her legal representative did not advise her that she had the legal defence of self-defence. As a result of the conviction, she completed 120 hours of community service. This is the only criminal conviction against her.
She said that she subsequently reconciled her relationship with her former partner. He attended the Armidale Police Station and provided the police with an updated statement on the circumstances surrounding the incident and requested the police withdraw the ADVO.
The Applicant understands that the charges could not be withdrawn, as she had already been convicted.
When completing the firearms application form she answered "No" to the question "At any time within the past 10 years, have you been subject to an Apprehended Violence Order (AVO)? This does not include an AVO that has been revoked". She answered "no" to this question in circumstances where she was of the genuine understanding that the was revoked in July 2019 and she was of the further understanding that this would not affect her ability to apply for a firearms licence.
She said that she did not in any way intend to mislead the NSW Police or provide false information pertaining to her firearms licence.
[7]
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. The Tribunal has held that ensuring that only permitted firearms are in the possession of licensees decreases the likelihood that they may be used in committing serious offences against the community.
As noted above, the Applicant's firearms licence was issued in July 2022, to expire in September 2027, and it was revoked in October 2024. The revocation was on the basis of the criminal record and the fact that the Applicant had provided false and misleading information in connection with her application for the firearms licence.
The question for the Tribunal is whether or not the decision to revoke the Applicant's license is the correct and preferable decision. Any discretion must be exercised to promote the objects of the firearm legislation: Cusumano v Commissioner of Police, NSW Police Service at paragraph [23] and the discretion is to be exercised giving clear preference to the public interest rather than an individual's private interests.
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.
It is not in dispute that in April 2019 she became subject to an AVO with her former partner named as the victim. The AVO expired in April 2021 and had not been revoked. Further, in April 2019 she was convicted of common assault and entered into an Intensive Correction Order for nine months and an Order for 80 hours of community service work.
The Respondent has correctly noted that the Applicant was a disqualified person for the purposes of the Act at the time of her application for a firearms licence, and therefore she was not eligible to be granted a licence. A conviction for a prescribed offence operates to remove the privilege to have a firearms licence for a period of ten years from the time of the conviction. If she had correctly declared the existence of the AVO and the conviction, the licence application would have been refused. There is an obligation on an applicant to provide accurate information and she did not do so.
Section 24(2)(a) of the Act provides that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind.
While the decision to revoke a firearms licence remains a discretionary one, the power of revocation should be exercised in a way that promotes the objects of the Act and is consistent with its context. Where a licensee would be required to be refused a licence because of a prescribed offence, there must be some feature of the circumstances that justifies the position that the licensee should retain their licence until its expiry.
In Commissioner of Police, NSW Police Force v Hogan[2024] NSWCATAP 77 the Appeal Panel considered a number of Tribunal decisions that had dealt with matters in which a licence had been revoked in circumstances where the licensee had not been eligible to obtain a licence. The Appeal Panel observed at paragraphs [53] - [56]:
[8]
53. We are mindful that the statute does not expressly require that there be special or extraordinary circumstances before there may be an exercise of discretion in favour of a licensee maintaining their licence in circumstances where they are not eligible to obtain a licence. In Grant v Commissioner of Police[2020] NSWCATAD 158 ("Grant") at [30]-[31], Senior Member Lucy noted that a differently constituted Tribunal had indeed approached the task by considering whether there were special or exceptional circumstances; yet the Senior Member identified that those words were not in the Act. The Senior Member adopted the approach of asking what exercise of discretion would promote the principles and objects of the Act.
[9]
54. We prefer the approach adopted by Senior Member Lucy in Grant that the discretion must be exercised in a way that promotes the objects of the Act and is consistent with its context. Further, with regard to the cases referred to above that the appellant submitted followed the "ordinary approach" we see that each case turned on its facts. That said, each is consistent with the proposition that the discretion is to be exercised in such a fashion that promotes the objects of the Act and that where a licensee is not eligible for a fresh licence, because, for instance, they have been convicted for a firearms offence, there must be some feature of the circumstances that justifies the position that the licensee should retain their licence until its expiry.
[10]
55. The Appeal Panel is satisfied that the Act calls for some circumstance, or justification to not treat a relevant conviction as the basis for revocation. That justification would not be present merely because the offence was a first offence or because the person had a history of compliance with the Act. To do so would be akin to giving every licensee a single opportunity to breach the conditions of the licence or the Act. Given the purpose of the Act is to protect the public, that would not promote its objects. Something more must be engaged before the privilege of maintaining a licence would be extended to someone who is no longer eligible to hold a licence. There must be some clear basis to justify the continuation of a licensee's licence, in circumstances where the Act is clear that that person is ineligible to obtain a licence. In Uzelac v Commissioner of Police[2003] NSWADT 226 at [19] Hennesy DP set out various factors that might be significant. Some may be more applicable than others, depending on the circumstances, and these may not be the only matters.
[11]
56. Further, for the reason that a licence may be revoked where the person is ineligible to obtain a new licence (as is the case here), it is not sufficient justification, for the maintenance of the privilege, that they satisfy other tests for being a licensee such as the fit and proper person test or that it would not be against the public interest. The architecture of the provisions indicates that being ineligible for a new licence, of itself, is sufficient for the appellant to revoke the licence. Therefore, there must be some justification for not regarding the conviction as sufficient basis for revocation.
[12]
In the present circumstances it is beyond doubt that the Applicant was not eligible for a licence at the time it was issued. Therefore I must be satisfied that there is some justification for not regarding the conviction as sufficient basis for the revocation.
I can accept that the Applicant's former partner had told her that he would take steps to have the AVO removed. I can also accept that she believed that he had done so. However, I agree with the Respondent that she should have made inquiries to establish the true situation. It is difficult to accept that a person of the Applicant's education and experience would not have known that she had been convicted of the assault charge. She had entered a guilty plea and had undertaken the community service work that the Court had ordered. An intensive correction order for nine months is a significant penalty and not to be treated lightly. The breach of an intensive correction order could have had significant consequences for her.
I also find it difficult to accept that the Applicant would not have been aware of the assault conviction at the time she completed her firearms licence application form. Nevertheless, I note that Ms Akers was satisfied about the Applicant's honesty.
The Applicant has provided evidence that suggests she is a person of good repute. While her personal references do not refer to the AVO or the conviction they speak highly of her character.
In the circumstances of this matter, it is not necessary that I make findings in relation to the Applicant's character. That is because she has not satisfied the standard set out by the Appeal Panel in Commissioner of Police, NSW Police Force v Hogan. As the Appeal Panel noted, it is not sufficient justification merely because the offence was a first offence or because the person had a history of compliance with the Act. To do so would be akin to giving every licensee a single opportunity to breach the conditions of the licence or the Act. I am not satisfied that there is justification for not regarding the conviction as sufficient basis for revocation or that would warrant the Applicant retaining her firearm licence.
I agree with the Respondent that it would not be in the public interest for the Applicant to continue to hold a licence. In the circumstances of this matter, it is my view that the correct and preferable decision is to affirm the Respondent's decision to revoke the licence.
[13]
The decision to revoke the Applicant's firearms licence is affirmed.
[14]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Parties
Applicant/Plaintiff:
Austin
Respondent/Defendant:
Commissioner of Police, NSW Police Force [2025] NSWCATAD 311;
Legislation Cited (2)
Administrative Tribunal Act 2013
Decisions Review Act 1997
Cases Cited (14)
There is no formal onus of proof. In considering the Application, the Tribunal may have regard to any relevant material before it at the time of its review. Its consideration is not limited to material that was before the Respondent at the time it made the decision which is under review.
The Tribunal is to make its own decision and there is no presumption that the Respondent's decision is correct. The Tribunal should consider all relevant materials and ignore all irrelevant materials.
The requirements for proof of questions of fact in administrative review proceedings generally were summarised by an Appeal Panel in Meacham v Commissioner of Police[2020] NSWCATAP 107 at paragraphs [54] and [83]:
"[54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on "logically probative material", and not on "mere suspicion or speculation", as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi[1980] FCA 85; (1980) 44 FLR 41 ("Pochi") at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 ("Sullivan") at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it.
As Principal Member Britton observed in BSR v Office of the Children's Guardian[2015] NSWCATAD 264 at paragraph [17]:
... a practical or "forensic" burden can arise from the material presented. A party who asserts a fact has a responsibility to prove that fact: Re Eckersley and Minister for Capital Territory[1979] AATA 59; (1979) 2 ALD 303; Holbrook and Australian Postal Commission[1983] AATA 40; (1983) 5 ALN N46.
In determining the review, the Tribunal, must exercise its discretion in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service[2001] NSWADT 50 at paragraph [23].
The underlying principles of the Act are, relevantly:
The underlying principles set out in section 3(1) of the Act 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: Keane v Commissioner of Police, NSW Police[2008] NSWADT 68 at paragraph [44].
Section 11 of the Act provides:
The Respondent contends that it is not in the public interest for the Applicant to continue to hold the licence.
The term "the public interest" has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others[1995] IRCA 540; (1995) 131 ALR 657, the Industrial Relations Court stated at 681:
In Constantin v Commissioner of Police[2013] NSWADTAP 16 at paragraph [33] the Appeal Panel said that:
Section 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community's interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police[2000] NSWADT 28 at paragraphs [27] - [28] Deputy President Hennessy said that in terms of public safety:
Ward v Commissioner of Police dealt with the issue of whether the applicant was a "fit and proper person" to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales[2017] NSWCATAP 206, at paragraphs [130] - [134].
The question of risk is not, however, to be approached in an absolute or mechanistic way, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force[2017] NSWCATAD 97 at paragraphs [64] - [66].
In determining this issue, it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service[2004] NSWADT 110 at paragraph [32].
The Respondent noted that the Applicant raised an issue of self-defence in her application for an internal review. However, it submitted that the Tribunal should accept the details contained in the Facts Sheet and the fact that the Applicant entered a plea of guilty to the charges. The Respondent also submitted that the Applicant agreed that she had undertaken community service work as ordered by the court.
The Respondent noted that at the time of her application for a firearms licence, the Applicant was a disqualified person and therefore she was not eligible to be granted a licence.
It is not in dispute that the Applicant failed to declare the conviction on her firearms application form. In circumstances she should have done so. There is an obligation on an applicant to provide accurate information. The Respondent points to views expressed by Senior Member Walker stated in Howison v Commissioner of Police[2021] NSWCATAD 157 at paragraph [93]