This is an application brought by the Applicant seeking review of decisions under the Firearms Act 1996 (the Act) by a delegate of the Commissioner of Police (the Commissioner). The delegate determined to revoke the Applicant's category H firearm licence.
For the reasons that follow, I set aside the decision under review and the Applicant should be reissued with his Category H firearms licence.
[2]
Background
Since 2004, the Applicant had held a Category H firearms licence. Since December 2004 (until recently because of the suspension), the Applicant has worked as an armed security guard at the Reserve Bank of Australia.
On 3 June 2008, the Applicant's wife made a report to police alleging that the Applicant had made threats to kill her and their daughter who was three years of age at the time during an argument on 31 May 2008. The Applicant's wife reported to police that the Applicant had made numerous previous threats of violence and had perpetrated actual violence against her, however these had not been reported to police. She also reported that the Applicant had forbidden her from having contact with her parents and friends in India, and that he would become 'very aggressive' during arguments. Following the report, the Applicant was charged with intimidation with intent to cause fear of physical/mental harm however the charges were dismissed because no evidence in support of the accusations were offered.
Between 2009 to 2017, the Applicant's traffic record included four incidents:
1. Negligent driving on 18 December 2009. The Applicant was fined $338.
2. Disobeying traffic lights on 16 February 2011. The Applicant was fined $344.
3. Disobeying a no stopping sign in a school zone on 7 May 2015. The Applicant was fined $311.
4. Disobeying traffic lights on 10 August 2017. The Applicant was fined $439.
On 5 May 2021, both the Applicant and his wife contacted police after a domestic dispute involving a verbal argument over money and the selling of their house as they had separated but were still living together. It was reported to police that the Applicant and his wife had had several arguments leading up to the incident. According to the police report and the Applicant's evidence in these proceedings, the Applicant denied that he had been violent towards his wife. The police informed the Applicant's employer that he was not allowed to access his firearms in his capacity as an armed security guard during a cooling off period.
On 2 November 2023, the Applicant was placed under arrest for assault after a domestic incident occurred involving the Applicant's wife. The Applicant made his wife aware that he was looking to sell a property in India, which resulted in an argument. According to the police report, the Applicant's wife told the police that at one point during the argument, the Applicant allegedly physically assaulted her grabbing her mouth and pushing her onto her already injured knee. The Applicant denied pushing his wife.
As a result of this incident, the Applicant was placed under arrest and charged with Common assault (DV) - T2, a provisional AVO was implemented by police and the Applicant's firearms licence was suspended.
On 25 January 2024., the Applicant's wife was granted an AVO against the Applicant.
The AVO was revoked on 28 February 2024 by further application from the Applicant's wife on the basis that the Applicant's wife felt safe and comfortable around the Applicant.
On 7 February 2024, the Applicant's firearms licence was revoked on mandatory grounds due to the AVO and on 28 February 2024, the firearms licence was revoked. The Applicant sought internal review of the decision to revoke his firearms licence. On 8 April 2024, the internal review was delivered which varied the Respondent's decision of 7 February 2024. The internal review decision revoked the Applicant's licence in accordance with sections 24(2)(a), 24(2)(d) and section 11(4)(a) of the Act and clause 20 of the Firearms Regulation 2017 (NSW) (the Regulation)
By an application to this Tribunal dated 2 May 2024, the Applicant seeks review of an internal review decision of the Respondent dated 8 April 2024.
The Applicant's firearms licence is due to expire on 16 December 2024.8
[3]
Applicable legislation
The underlying principles of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. The decision of Keane v Commissioner of Police, New South Wales Police [2008] NSWADT 68 at [44] emphasises that strict controls on the possession and use of firearms are imposed for this reason. The underlying principles of the Act are outlined in section 3. Relevantly they are:
1. to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and
2. to improve public safety:
1. by imposing strict controls on the possession and use of firearms, and
2. by promoting the safe and responsible storage and use of firearms.
The relevant provisions in so far as they are relied upon to support the decision under review by the Respondent are:
1. 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. Section 11(4)(a) of the Act provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of the Applicant's way of living or domestic circumstances.
2. Section 24(2)(d) of the Act provides that a licence may be revoked for any other reason prescribed by the regulations. Clause 20 provides 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.
[4]
Tribunal review
The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all material first considered, together with any further relevant material to either confirm the original decision, vary it or set it aside and substitute another.
Section 63(1) of the ADR Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. It makes its own decision in place of the Commissioner's, and there is no presumption that the [Commissioner's] decision is correct: McDonald v Director General of Social Security (1984) 1 FCR 354 at 357.
1. The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: Civil and Administrative Tribunal Act 2013, s 38(2) (CAT Act).
[5]
Submissions and evidence
In summary, the Applicant relied on the following submissions:
1. The Applicant denied the factual allegations made by the Respondent with reference to the police reports:
1. He maintained that he was not violent or aggressive towards his wife or children as alleged by his wife with respect to the alleged 2018, 2021 and 2023 incidents. In this respect, he relied upon his sworn statutory declaration; and
2. Relied upon Children's Guardian v BRL [2016] NSWSC 1206 for the proposition that little to no weight should be placed on the allegations given they are set out on second0hand hearsay form summarised where there is no direct evidence from his accuser and is unable to be cross-examined.
1. With respect to any concerns regarding his domestic circumstances and whether he could exercise personal continuous and responsible control over firearms - first, the Applicant contends that the allegations made against him of being violent are untrue but even if that was not the case:
1. The only genuine purpose for the Applicant holding a firearms licence is for employment and the firearms do not leave the Reserve Bank building.
2. As such there is not connection between the Applicant's home life and his work such that his domestic circumstances have any bearing on his compliance and control over firearms.
3. In this regard, the Applicant relied on a statutory declaration. He also gave oral evidence in cross-examination. Despite challenge, the evidence was always consistent i.e. that the firearms are under strict controls in the Reserve Bank building and do not leave that building.
1. With respect to the public interest generally, the Applicant submits that the evidence supports that:
1. He has performed his work functions well and remined employed with the Reserve Bank.
2. He has always complied with rules, regulations and policies regarding his use of firearms at work.
3. The Applicant has never been convicted of a criminal offence and has no convictions.
4. The Applicant poses no risk to the public.
5. The Applicant also relied upon a reference from his employer which describes him of a man of good moral character, responsible and respectful.
The Applicant relied on the following evidence and documents in addition to his oral submissions and oral evidence:
1. Administrative review application filed 2 May 2024 marked "A1";
2. Written submissions marked "A2"
3. Statutory declaration of the Applicant dated 5 July 2024 marked "A3"
4. Reference of Mr Stan Malaxos which was annexed to the Statutory declaration described above marled "A4"; and
5. Further Statutory declaration of the Applicant filed 26 July 2024 marked "A5"
In summary, the Respondent relied on the following submissions:
1. With respect to continuous and responsible control over firearms - the Respondent submitted that the evidence supported that the Applicant had a significant history of domestic violence means that his relationship with his wife is not conducive to a safe environment for the possession of firearms.
2. With respect to the public interest - the Respondent submitted that the Applicant's history with police and domestic circumstances are such that the Tribunal should not be satisfied that the Applicant may safely hold a firearms' licence.
3. The Respondent also drew the Tribunal's attention to the Applicant's traffic record.
The Respondent relied on the following evidence and documents in addition to his oral submissions and the s 58 bundle:
1. Respondent's written submissions marked "R1".
[6]
Consideration
First, dealing with the Respondent's submissions in respect of the Applicant's domestic circumstances and the alleged history of domestic violence, I do not accept that the evidence that is before the Tribunal is sufficient to establish that history.
While I accept that matters where no conviction have been recorded (either because no conviction was pursued, or the criminal proceedings have not yet been heard) can be considered and given any weight in the matter for the reasons in FZQ v Commissioner of Police, NSW Police Force [2024] NSWCATAD 11 at [39] to [42], the Tribunal needs to be satisfied that the conduct occurred. In this case, the Respondent relies upon police reports recording the impressions of police officers of the Applicant's account of events which the Applicant has denied and with such allegations being tested by way of cross-examination of the Applicant. There is no direct evidence and no explanation from the Respondent as to why the makers of the statements were not called for cross-examination on their allegations and no evidence as to why the Applicant's wife refused to give evidence previously in the criminal proceedings. I am not satisfied that the conduct occurred even applying the lesser standard of proof as compared with the criminal standard as applies in this Tribunal: El-Ashrafi v Commissioner of Police, NSW Police Force [2017] NSWCATAD 103 at [37] to [41].
Even if I was to find otherwise, I accept the submission of the Applicant that the consideration in s 24(2)(a) of the Act has no application here. That is because the evidence satisfies me that the only genuine purpose for the Applicant holding a firearms licence is for employment and the firearms do not leave the Reserve Bank building. Accordingly, there is no connection between the Applicant's home life and his work such that his domestic circumstances have any bearing on his compliance and control over firearms.
I therefore also reject the Respondent's contentions related to the public interest which were primarily reliant on the allegations of domestic violence. That leaves the Respondent's contentions reliant the Applicant's traffic record. While I accept, as submitted by the Respondent, that a history of traffic offences may, in the appropriate circumstances, show a disregard for public safety and the regulatory regime aimed at ensuring public safety (Tannous v Commissioner of Police [2011] NSWADT 116 at [32]), I do not think the Applicant's traffic offences in this case rise high enough to draw that conclusion.
In all the circumstances, the correct and preferable decision is to set aside the decision the subject of review and I make the orders below.
[7]
Orders
I make the following orders:
1. The Respondent's decision to revoke the Applicant firearms licence is set aside and the licence is reinstated.
[8]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 26 September 2024