Administrative Law - firearms licence - revocation - safe storage requirements - genuine reason - public interest domestic circumstances
Source
Original judgment source is linked above.
Catchwords
Administrative Law - firearms licence - revocation - safe storage requirements - genuine reason - public interest domestic circumstances
Judgment (49 paragraphs)
[1]
The Applicant disputes that he has failed to comply with his obligations under the Act. He maintains that he has a genuine reason to hold a licence, that the alleged breaches to the safe storage provisions were technical in nature, rather than fundamental, and that his son no longer resides or frequents his address. In a letter to the Respondent dated 23 December 2023 he wrote:
[2]
For the past twenty years my collection has been stored without incident at the property. My collection has been inspected by the NSW Firearms Registry a number of times over these years with the latest inspection being in 2023.
[3]
It is my understanding that my collection was inspected and catalogued on 29 November 2023 without any discrepancies identified.
[4]
It is my understanding that the reason my firearms, ammunition and miscellaneous items were taken was due to a separate incident involving my son. That incident had nothing to do with me ...
[5]
My son ... had not been living at my property since 3 October 2023. [My son] had no access to or knowledge of where my firearms were stored and was aware that he was not permitted to return to my property. My daughter called the Ballina Police asking them to attend my property and remove my son from my property on the evening of 22 November 2023, as he was trespassing.
[6]
I am a law abiding citizen who has enjoyed the privilege of owning and using firearms. I have been a member of the New South Wales Sporting Shooters Association of Australia for 36 years.
[7]
My firearms, ammunition and miscellaneous items are my 'superannuation policy' funding my retirement, with the number firearms reducing over recent years. I was actively selling the rifles and shotguns with numerous internet listings when the incident involving my son and the NSW Police occurred.
[8]
It is my intention to continue selling my firearms. The NSW Police were aware that these firearms were listed for sale at the time police removed my firearms, ammunition and miscellaneous items from my property.
[9]
I formally request that my firearms licence be reinstated so that I may continue to sell my firearms, ammunition and miscellaneous items.
[10]
As noted, the Respondent determined to revoke the Applicant's firearms licence in June 2024. In July 2024 the Applicant wrote to the Respondent and requested an internal review of that determination. With respect to the Respondent's comments regarding the storage of the firearms and ammunition he noted:
[11]
The seized firearms were stored in a historical primary school building located within a section of the toilet block which has been enclosed in the industrial building.
[12]
The firearms are located in two vaults built into the old building ...
[13]
The firearms were not stored within safes, but "strong rooms or vaults by definition"
[14]
Each room is a STRONGROOM or VAULT with three padlocks to each access door, each door with internal hinges.
[15]
The entry to the toilet block has a galvanised wire door
[16]
This is irrelevant to the safe storage area to the definition of a strong room or vault. The galvanised security door is located on a room adjacent to the vaults and is additional security to the vaults. This door is on a room which is not part of the vaults "by definition" and is NOT a firearms "safe storage breech".
[17]
The external windows were glass louvres, several of which were broken
[18]
· These louvres are on the adjacent external room and have nothing to do with the firearm strong rooms or vaults, by definition. The room is an adjacent room to the strong rooms or vaults, providing additional access security. To report that it is part of the vaults is misleading, as it is not. Yes, it has broken louvres but this is NOT a breach of firearm storage requirements.
[19]
The internal doors within the toilet block were hollow core doors The Firearms Act and Regulations state it to be solid core, this is a breech by definition of the requirements of a strong room or vault door.
[20]
There are brand new solid wood doors in the building that could have been fixed to the doorways if requested on the 29 November 2023 or the February 2023 inspection. The existing doors have been in existence since 2002. No incident has occurred since the strong rooms or vaults have been in existence.
The addition of the steel grated door on the adjacent room with an additional two locks has compensated for the hollow core doors up to this current determination. There is another approved firearms strong room /vault in the building available for firearm storage. ...
This strong room was approved by Sergeant Wayne Crotty and Simon Thorpe on 14th August 2013 and was available for use at any time since 2013, for firearm storage. ...
[21]
A substantial amount of ammunition was located within the shed not stored in a locked container.
[22]
· The police did not know that ammunition was stored in the steel enclosed bins with another two steel bins on top. Nor would anybody else. It is one steel bin amongst 96 steel bins. The four tonne of load on this steel bin provided the security to the top of the ammunition storage which caused a thirty minute delay of access when compared to less than a minute to cut away locks. There are existing deadbolts on the steel metal bins. A padlock if fitted would comply with the written requirement of the Firearms Act and regulations but the storage access situation was far in excess to that provided by attached locks.
[23]
· The shed had existing lockable steel brownbuilt cupboards available as an alternative storage area on the 29 November 2023. ... The ammunition could have been transferred to these brownbuilt containers on the 29 November 2023 inspection and "ammunition safe storage' would have complied with the written requirements of the act.
[24]
With respect to the storage facilities the Applicant noted:
[25]
Since 2002, I have participated in four audits with NSW Firearms registry with the last Inspection by Senior Constable O'Rourke in February 2013. Inspector Wayne Crotty approved the new concrete vault for storage on 14 August 2013. This is confirmed in my letter to the Firearms registry dated 31 January 2014. Over these 22 years of firearm storage, there has been no incident with the firearms in their previous/existing storage location. I told very few people that I owned firearms as I consider "that is the best security of all". They were stored in a most unlikely place (strong rooms/vaults) within a refurbished toilet block with no indication externally that the rifles were present.
[26]
Inspector Aran Greenwood of Richmond Command telephoned as he could not find the strong rooms/vaults location.
[27]
There is already a concrete firearms strongroom/vault constructed in the building ... to Ballina Shire Councils and Australian Engineering Standards.
[28]
Sergeant Wayne Crotty with Simon Thorpe inspected and approved this strongroom/vault for firearm storage, on 14 August 2013. This strongroom/vault has been available to store the firearms since 2014. ...
[29]
It is a solid concrete 200mm thick walled structure reinforced with N12 reinforcing steel both vertically and horizontally. The top slab is 150mm thick concrete. The floor is 65 MPA concrete. It is 4.2 metres tall. It could be compared to a "Bunker".
[30]
The strongroom/vault is a substantial structure, built far in excess to any requirement required by the Firearms Act 1996 and Regulations, for firearm storage. It has a solid core timber door at its access entrance (2040 x 820) with five dead bolts, each with its padlock locking the door in place. The hasp/barrel bolts have added protective coverings for additional security to minimise access to the locks. This strongroom/vault was designed and constructed specifically to safely store the rifles and shotguns.
[31]
Inspector Detective Steve Hoffman photographed "this structure" on the 23 November 2023. Sergeant Wayne Crotty was shown the "concrete vault" on the 29 November 2023.
[32]
There are steel lockable "brownbuilt cupboards" for additional ammunition storage, available in the building. These were available on the 29 November 2023.
[33]
I had assumed that a steel container with four tonnes of weight on top of its lid was quite secure from burglary. It did not comply with the written description as it did not have a lock on its dead bolts. (Locks delay access. The four tonne of protective weight was far better security than locks)
[34]
This storage would comply with Section 47 of the Regulations, for a dealer.
[35]
My shooting ammunition for regular shooting purposes was stored in another two steel cupboards, for everyday use. This storage is in compliance with the regulation. Two Casino Police Officers emptied these two cupboards of all items of their interest.
[36]
With respect to the issue of his genuine reason for holding a firearms licence the Applicant noted:
[37]
The Police report to the NSW Firearms Registry should have advised that I have a genuine reason of recreational hunting-permission to shoot at the following property.
[38]
On the 29 November 2023, I had "fifteen police seizing my rifle with some asking questions". At the time of my communications, I was probably confused to what they were asking and why they were asking it? I had a feeling of "violation and intimidation".
[39]
Coffs Harbour is where I have worked as a part time Civil Engineer for Coffs Harbour City Council.
[40]
Your report indicates that firearms have an "intrinsic value" as they may be sold to realise their value in the form of money, by your reference to superannuation.
[41]
At 73 years of age, some people would describe this as "superannuation". I thought it would be encouraged by the NSW Firearms Registry that a person who owned 170 firearms should wish to sell the rifles and downsize, at his age. I cannot read into the Firearms Act 1996 or Regulations that a person is prohibited from doing so? I request the support of the NSW Police Firearm Registry with my downsizing of the rifles that I own in a responsible manner suitable to both parties.
[42]
With respect to the issue of the public interest the Applicant noted:
[43]
My firearm storage had not been accessed by anybody, but myself.
[44]
At the time of the firearm seizure, my son ... was in gaol for six days and is still in gaol. Hence, my son cannot be the reason that my firearms were seized.
[45]
This matter could have been resolved by the transfer of the goods to existing complying structures which Sergeant Wayne Crotty, approved in 2013.
[46]
I request that the NSW Firearms Registry reactivate my Firearms Licence and return my property ...
[47]
Mr Kable submitted that there is still an argument as to whether there was an actual breach of the safe storage requirements. The Applicant has a reasonable belief that his safe storage was compliant, given the recent inspection in 2022, together with the extensive modifications he had made to the area in question. He was not charged with, or given penalty notices, for any perceived offending. Not for breaching any safe storage requirements or for breaching any conditions of his firearm licence. Mr Kable submitted that this is a strong indicator of either the Applicant was borderline compliant, or uncertainty on the police behalf.
However, Mr Kable submitted that if there was a breach, that the breach could not be considered a serious one. He has upgraded facilities and given the process he has endured is likely to be hyper-vigilant and obsessive over firearm security precautions and is highly unlikely to offend.
As noted, the Applicant has permission to shoot. Mr Kable submitted that the evidence of the landowners indicates shooting activities only 2 years ago. He submitted that would be sufficient to justify a firearm licence.
The Applicant has been in the process of divesting his firearms, and plans to continue to do so. Even if he does sell most of his firearms, he would retain a small number for hunting purposes.
Any inference that he would make firearms available to his son, or that his son could somehow access those firearms is totally rejected. The Applicant's son had lived at that address for a period of time and had never accessed the firearms, which is a strong indicator that he either had no interest or that he could not gain access to them.
Mr Kable submitted that the Tribunal can be satisfied that there is virtually no risk to the public if the Applicant was to retain his firearm licence. His extensive history with firearms attests to that. He urges the Tribunal to set aside the decision under review and to return the Applicant's firearm licence.
[48]
With one significant exception. I am in general agreement with Mr Kable in this matter.
As has been noted, the Applicant's storage facilities have been inspected and found to be compliant with the legislative requirements. The most recent inspection prior to the November 2023 event was in 2022. In my view, given the long history of the Applicant's licence holding without incident and the fact that several inspections had found the storage facilities to be compliant, the Applicant was entitled to rely on that assessment.
While I accept that the Applicant's storage facilities are out of the ordinary, it appears that, in fact, they exceed the legislative requirements. In the circumstances, I am not satisfied that any issues raised by the Respondent in that regard are warranted.
Similarly, I do not share the Respondent's concerns with respect to the Applicant's son. I am satisfied that the Applicant's son does not reside at or frequent the Applicant's property. I do not agree with the Respondent that this is a consideration warranting significant weight in regard to the issue of whether the Applicant's licence should be revoked.
My concern in relation to the issue is that the Applicant's genuine reason for hold a firearms licence is not as has been advised to the Respondent. I accept that the Applicant has been given permission to shoot on rural properties. I also accept that there is no requirement to undertake any set number of shoots over any given period and that the permission to shoot is open ended. However, the evidence is that the Applicant has rarely exercised that practice in recent years.
When considering future risk, the Tribunal must consider the past conduct of an applicant as a significant guide: see Stamatelatos v Commissioner of Police, NSW Police Force[2018] NSWCATAD 156 at paragraph [141]. The Tribunal is to look at the Applicant's conduct as a whole, including potential future conduct with past conduct of the Applicant being a significant guide in assessing likely future conduct: see Ford v Commissioner of Police[2022] NSWCATAD 87 at paragraph [59].
In my view, in order to be a genuine reason for holding a firearms licence, there must be more than a mere permission to shoot. There must be a genuine intention to do so. In the circumstances of this matter, there is no longer such an intention. It appears that the Applicant's practice is limited to shooting vermin at the request of the landholders.
There is an implied condition that a licence holder who was granted a licence for the genuine reason of recreational hunting - vermin control, with permission to shoot, will undertake activity related to the permission to shoot. The Applicant's evidence was that he has not shot regularly for many years. His vermin control activity was limited to shooting a pig about two years earlier.
In contrast to that practice, in evidence is the Applicant's own statement on the day of the seizure of his firearms, and his correspondence which is focused on his intention to retain the firearms as an investment and to dispose of them as a source of income.
I agree with the Commissioner that this is the Applicant's primary reason for wanting to hold a firearms licence. This is not a genuine reason for the purposes of the Act.
On the material before me, I am not satisfied that the Applicant has a genuine reason for holding a firearms licence at this time. It follows that the correct and preferable decision is to revoke the firearms licence. The Respondent's decision should be affirmed.
[49]
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:
Chesworth
Respondent/Defendant:
Commissioner of Police, NSW Police Force [2025] NSWCATAD 299;
Legislation Cited (3)
Administrative Tribunal Act 2013
Decisions Review Act 1997
Firearms Regulation 2017
Cases Cited (15)
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 submits that the Applicant's firearms licence was subject to a condition that required him to comply with the safe keeping requirements under Part 4 of the Act. The Respondent contends that the Applicant's storage facilities do not comply with the legislative requirements. The Respondent also contends that the Applicant had failed to comply with requirements in regard to the storage of his ammunition.
In addition to the safe storage issues, the Respondent contends that the Applicant does not have a genuine reason to hold a firearms licence.
The Respondent notes that during the seizure of the Applicant's firearms and ammunition on 29 November 2023, the Applicant indicated to Police that:
he does not shoot regularly, and has not done so for about 12 years;
the firearms and ammunition were his superannuation; and
he used to have a collector's licence in QLD but elected not to obtain one in NSW because he believed that it required a back to base alarm system.
The Respondent also referred to a letter dated 23 December 2023, from the Applicant to the Respondent, in which the Applicant again referred to his firearms and ammunition as his 'superannuation policy' funding his retirement. The Respondent submits that this is not a genuine reason for holding a firearms licence.
The Respondent notes that the Applicant has asserted that his genuine reason for holding a licence is permission shooting. However, the Respondent argues that it is plain that the Applicant is seeking to retain possession of his firearms to sell them. The Respondent submits that this is the Applicant's actual reason.
As noted, section 12(1) of the Act prescribes that the Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that an applicant has a genuine reason for possessing the firearm. Section 24(2)(d) of the Act provides that a licence may be revoked for any reason which the licence would be required to be refused.
The Respondent also contends that the Applicant has breached the safe storage requirements of the Act. Section 24(1)(b)(iii) of the Act prescribes that a licence may be revoked if the licensee contravenes any condition of the licence.
Section 19(2)(a) of the Act prescribes that each licence is subject to the condition that the licensee must comply with the relevant safe keeping and storage requirements under this Act.
The Respondent is also concerned that the Applicant's son may be able to access the Applicant's firearms and ammunition. Section 11(4)(a) of the Act prescribes that the Commissioner must not issue a licence to a person 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.
The Respondent submits that the Act emphasises that having a firearms licence is a privilege that must be weighed against the risk to public safety that results from such access. When making this assessment, greater weight must be given to concerns about public safety. As I stated in Aubrey v The Commissioner of Police[2005] NSWADT 266 at paragraph [21]:
(1980) 44 FLR 41
(1995) 131 ALR 657
(2014) 22 FCR 555
The Respondent accepts that the Applicant wishes to liquidate his collection. However, the Respondent submits that the Applicant does not require his firearms licence to be reinstated for that purpose. It is open to the Applicant to sell his firearms by disposing of them through a firearms dealer. The Respondent accepts that the return from adopting that course may be less than the course that the Applicant would prefer. However, the Respondent submits that that is an unavoidable consequence of collecting firearms otherwise than under a collector's licence.
It is submitted that the Tribunal cannot be satisfied that the Applicant has a genuine reason for possessing or using a firearm. It is further submitted that the decision to revoke the Applicant's firearms licence on the basis that the Applicant failed his safe storage requirements was correct.
With respect to the Applicant's son, the Respondent submits that there remains a real risk that the Applicant's son may visit the Applicant's property without permission. If the Applicant's firearms licence is reinstated, this could lead to the Applicant's son taking possession of a firearm or firearms.
The Respondent referred to the decision in Tolley v Commissioner of Police[2006] NSWADT 149 where the Tribunal noted at paragraph [31]: