On 25 June 2023 the Applicant, James Dempster applied for a category AB firearm's licence under the Firearms Act 1996 (the Act). His application was refused on 1 September 2023. That decision was affirmed on internal review. The Applicant now seeks review by this Tribunal.
[2]
Relevant legislation
The general principles of the Firearms Act 1996 (the Act) are set out in s 3 of the Act:
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.
The Act, in setting out restrictions on the issue of licences, provides, in s 11, relevantly:
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(3) A licence must not be issued unless:
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(d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State.
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Section 63 of the Administrative Decisions Review Act 1997 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 decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) 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: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34].
[3]
EVIDENCE
The Applicant filed the following evidence:
1. undated correspondence from Centrelink addressed to the Applicant at 102 Poverty Hill Road Menindee NSW 2879 (Poverty Hill Rd) with his pensioner card with that address, the starting date of which was 17 July 2016 and expiring on 31 August 2024
2. a confirmation email from the Australian Electoral Commission dated 22 September 2023 confirming his update to his enrolment details including by updating his enrolled address to Poverty Hill Rd from 18 September 2023
3. a letter addressed to the Applicant at PO Box 228 Menindee from Mark Coulton MP Federal Member for Parkes dated 28 September 2023 welcoming him to the electorate
4. a Centrelink document dated 30 October 2023 addressed to the Applicant at Poverty Hill Rd confirming his Concession Card Entitlements valid from 30 October 2023 to 13 November 2023
5. a remittance advice dated 8 November 2023 from HealthShare NSW addressed to the Applicant at Poverty Hill Rd.
6. Transport for NSW licence address amendment sticker (to Poverty Hill Rd) and driver licence with sticker attached
7. Script by Dr RB Emmerson, dated 16 February 2024 recording the Applicant's address as Poverty Hill Rd
8. Screenshots of texts from colorectal surgeon between 29 January 2024 and 21 February 2024
The Applicant gave evidence and was cross examined.
In addition to the s 58 documents, the Respondent relied on 2 statements of Acting Inspector Nathan Vedder, dated 27 February and 12 March 2024. The Applicant did not require Inspector Vedder for cross examination.
[4]
Previous proceedings
The Applicant had previously applied for a firearms licence but his application was refused on the basis that he was not a resident of NSW. That decision was affirmed on internal review and the Applicant sought review by this Tribunal (2022 Proceedings). The matter was heard before Senior Member Emeritus Professor Walker, who, on 26 August 2022 affirmed the decision: Dempster v Commissioner of Police [2022] NSWCATAD 289. SM Walker held, inter alia, that the Applicant was neither a resident of NSW nor was he about to become such a resident. The decision relied on the following evidence:
1. the Applicant's application said that "The refusal of my application now precludes me from applying for a licence in South Australia where I now reside''
2. in the Applicant's internal review request in respect to the 2022 Proceedings, the Applicant wrote that "Should my exit from the state of NSW an interstate transfer be considered" (sic) he would be denied a firearms licence in South Australia
3. during cross-examination, the Applicant had said that:
1. he had removed himself from New South Wales
2. had no residence links with the State
3. he has not owned property in NSW for between 30 and 40 years, but he owns a property at German Hill Road, Coober Pedy, South Australia and his postal address was PO Box 297, Coober Pedy, SA. That address appeared on his concession card also.
4. his "formal exit" from the State would take effect on 23 August 2022, by which date his "hostile eviction" from the property Sandhills at Menindee, New South Wales, requires him to vacate
5. he was transferring to South Australia and extracting himself from New South Wales
6. the Applicant's letter attesting to his permission to shoot on Mount Clarence Station at Coober Pedy states that the Applicant is "currently working on Mt Clarence Station and Walatina Station via Marla SA"
7. the Applicant's statutory declaration in support of the application was signed and sworn at Coober Pedy in South Australia
8. the psychologist that the Applicant attended in 2011, Ms Chantler, practices in Adelaide as does his business accountant
9. all of the Applicant's character references were based outside New South Wales, and six were in South Australia
10. the Applicant's son lives in Adelaide
11. the Applicant was, at the time of the Tribunal Decision, working for two cattle stations in South Australia, is under contract to Coober Pedy District Council and has no work connections with New South Wales
12. the Applicant's undated letter to the Tribunal stated that "As I reside in South Australia, I would request that this matter be listed for determination at Broken Hill, that being the closest centre in NSW to where I reside".
[5]
Is the Applicant currently a resident of NSW, and, if not, is he about to become a resident of this State?
The Respondent again contended before me that the Applicant is not a resident of NSW and submitted that SM Walker's factual findings are relevant to the matter at hand. I confirmed with the Applicant that SM Walker had correctly represented his evidence given in the 2022 proceedings. The Applicant was asked to focus his evidence before me on what had occurred as to his residential status since the previous decision.
Notwithstanding that he was adamant in his evidence in the 2022 proceedings that he proposed to move, the Applicant said that he had "given up" on his plan to move to South Australia. As to what had brought about that change he said that it was more expensive to live in South Australia and there was less job security. I observed, and he agreed, that within a month of the decision made in August 2022 he had applied for a firearms licence in South Australia.
In his most recent application for a (NSW) firearms licence, dated 25 June 2023, the Applicant stated that:
1. his residential address was "Sandhills" via Pooncarie Rd, Menindee NSW 2879 (Sandhills); and
2. his postal address was PO Box 297, Coober Pedy SA 5723.
His evidence was that Pooncarie Rd is "now known" as Poverty Hill Rd. The Applicant was critical of the Respondent's evidence about what had been recorded in his application, relevantly, that his residential address on the application was given as Sandhills and that his postal address was given as being in Coober Pedy. He wrote that the document purporting to be copy of his firearms licence application of 25 June 2023 does not bear any identifiable government agency name, letterhead or logo of Service NSW, NSW Police Force or NSW Firearms Registry and therefore cannot be relied upon as authentic. He said it was not technically possible for an applicant to print out a copy of an on-line firearms licence application at the time it is made for their personal records, and without having a file copy of the application he submitted he was unable to verify whether or not the residential and mailing addresses recorded in the on-line application are an accurate representation of what he provided. He said he had not uploaded the application and associated documents as Inspector Vedder had said, because he is computer illiterate. He said he asked a couple of kids in Coober Pedy how to complete the form. He said he discussed the form with his assistant of 40 years, Julie Johnstone at the office he uses in Coober Pedy associated with his business. (He said he also has some business interests which take him to China and Japan.) He said he sat with her and "oversaw some of it". He said he answered the questions and Ms Johnstone entered the answers.
The Applicant was asked about Sandhills. He said he had lived at the property for about 30 years without a tenancy agreement until the Council sold the property for the owner's failure to pay council rates. The new owner proceeded to interfere with his possessions and he was locked out. Police were called to intervene. The Applicant referred me to the decision of Member Ringrose in the Consumer and Commercial Division of this Tribunal dated 14 November 2023 (Ringrose decision), wherein he was awarded compensation. From the Ringrose decision it appears that Ms Johnstone was the previous owner of Sandhills. The Applicant said Sandhills was sold "unbeknownst" to him; he said he was away working and was in South Australia having medical treatment, and then could not return because of the closure of state borders during COVID.
The Applicant said that since publication of the decision in the 2022 proceedings in August 2022 he went to Coober Pedy, living in his large, comfortably equipped motorhome. The Applicant said he has a percentage (unspecified) interest in property in Coober Pedy. This is the only real estate he owns. He remained in Coober Pedy until mid-2023.
He then returned to Sandhills and used a large earth mover to move all his possessions to the Poverty Hill Rd site, which he said, was across the road from Sandhills. On the property, which he has leased to 2028, he has amongst other things, a shed, 2 trucks, 2 4WDs, 2 horse floats, and 2 40-foot shipping containers. He lived in his motorhome, which, in addition to being equipped with solar panels and security devices, contains all his tools of trade. There is no power at the site but, he said, the extensive solar panels on his motorhome could be connected to the containers and shed.
He said he remained at Poverty Hill Rd until about November 2023. He could not recall where he was when the Ringrose decision was published which was in mid-November 2023. He said that the last time he was at Poverty Hill Rd was "before the hot weather set in".
Then he returned to Adelaide for more surgery at the end of 2023. He said he then went "on holidays" in the motorhome (with its 4WD on the back) to Beach Park in Victoria. More recently, he holidayed for a week in Goolwa, South Australia, where he also keeps another 4WD.
Following that trip he was again hospitalised in Adelaide in February 2024. He said that when he goes to Adelaide he either stays in the motorhome in a caravan park in Hindmarsh, or stays with friends. He has not been back to Poverty Hill Rd since his surgery in February 2024. In this calendar year he has spent 4 days at Poverty Hill Rd. He said he will return to NSW from Adelaide where his specialists are, when his medical issues have been resolved. He described those medical issues as "not going away" and that he had "no idea" how long he might have to continue treatment in Adelaide. He said the medical advice is to be close to a capital city, although he subsequently denied this. He is currently living in his motorhome in the Hindmarsh caravan park. He said that wherever the motorhome is, is where he is living. He agreed that the motorhome had been located more in South Australia over the previous year than in NSW.
When the Applicant applied for a firearms licence in South Australia his application was refused. He said the refusal was because he had been refused a licence in NSW. He said he attended Coober Pedy Police and explained why his NSW firearms licence had been refused. He understood the Coober Pedy Police would intervene, but there was no evidence as to the outcome, or if there had been any intervention. I observe that the (undated) refusal letter, when referring to his application of 21 September 2022 referred to a previous refusal by the "Delegate of the Registrar of Firearms" and does not refer to any decision of the NSW Firearms Registry.
He said he had last checked his Menindee PO Box 2-3 weeks ago. He said his practice is to telephone the Post Office Manager and asks him to look at the mail. It is unclear how he checks mail at Cooper Pedy or other of the mailing addresses he has notified from time to time - see the evidence of Inspector Vedder below. The Applicant said he prefers the use of email. I observe that in his internal review application he was critical of the Respondent for not providing an email address.
The Applicant said he lives in the motorhome and he moves from location to location according to where the work is. His skills as a stockman and in engineering, he said, are in demand so he can stay as long as he chooses in any one place. The last time he did stockman work was a couple of years ago in far north South Australia, where he worked for about a year, after which he went to Coober Pedy for work. The Applicant denied he had not worked as a stockman recently because of his health but said he is not able to undertake further roles because he needs a firearms licence to do that job. He said that if he were granted a firearms licence he would endeavour to work as a stockman again as soon as possible.
The Applicant submitted that he had "no qualifications to be a resident of any state" because of the itinerant nature of his work. He said he is a resident of NSW but he "can't be contained" within a state border because he has "cross-border operational activity", because he works in a national industry. He said he is unable to accept roles where there is a firearms requirement. Consequently, he is denied income from his profession, although his pension Centrelink information suggests that he has been drawing the age pension since mid-2016. He also said he obtains "recreational pleasure" from the use of firearms.
The Respondent relied on the evidence of Inspector Vedder that he had made recent enquiries regarding the Applicant's addresses through the NSW Police Force's Integrated Licensing System (ILS), which is maintained by the NSW Firearms Registry and displays each occasion when the Applicant updated or changed his address with Roads & Maritime Services NSW (RMS). His evidence was that:
1. between 2 March 2006 and 24 January 2024, the Applicant's residential address was recorded as Sandhills.
2. on 24 January 2024, the Applicant updated his residential address to Poverty Hill Rd. The Applicant wrote in his statement that he had inadvertently overlooked notifying RMS of his change of residential address because of the ongoing legal dispute regarding Sandhills, health issues requiring travel to Adelaide and the current matter regarding application for a firearms licence.
3. As to his postal address, between 9 June 2023 and 24 January 2024 his postal address was recorded as PO Box 297, Coober Pedy; from 24 January 2024 to 7 February 2024 as PO Box 228 Menindee NSW 2879; and from 7 February 2024 to 7 February 2024 (sic) as 27 Catherine Street, Clapham, SA, 5062 (the Clapham address). From 7 February 2024 it has been to PO Box 228, Menindee, NSW, 2879.
Inspector Vedder also conducted searches of the RMS System in relation to the Applicant's residential addresses between June 2023 and February 2024. From 24 January 2024 his residential address was recorded as Poverty Hill Rd, and also from that date to 7 February 2024 as PO Box 228, Menindee NSW 2879 (sic).
The s 58 documents contain a Centrelink income statement dated 16 May 2023 addressed to the Applicant at "Care PO MARLA SA", but it is unclear why this was.
The Applicant wrote that his work requires that he travel throughout Australia. He referred to the Police Event associated with the Sandhills complaint in January 2021 in which he reportedly told Police, in the course of the complaint that he worked "all over Australia … and spends long periods of time away from Menindee". He said he nominates mailing addresses in other states simply for convenience. The Clapham (mailing) address for example, was used solely for the purposes of delivery of an updated address label for his NSW driver licence. In late 2023 to early 2024 he was travelling to Adelaide regularly for medical appointments, investigations, and procedures, so this was the most convenient and effective way to ensure prompt delivery of the updated address label for his driver licence while he was in Adelaide. He wrote that he could rely on his close friend to promptly notify him of any mail.
[6]
CONSIDERATION
The term "resident" is not defined in the Act or Firearms Regulation 2017 (Regulation).
In Pang v Commissioner of Police, NSW Police Force [2009] NSWADT 11 (Pang) JM Molony held that the words "resident of the State" in s 11(3)(d) of the Act are to be interpreted in accordance with their ordinary and current meaning. That is, to mean "dwell permanently or for a considerable time; have one's abode for a time" in NSW. That definition, however, does not extend so far as to say that the applicant must "reside on [a] permanent basis in the State". The Applicant was critical of the Respondent's Statement of Reasons in the internal review that he was not a permanent resident of NSW. I agree with the Applicant that permanency of residency is not a legislative requirement, but I also agree with the interpretation of "resident of the State" by JM Molony in Pang that the Applicant for a firearms licence in NSW must dwell permanently or for a considerable time in this State. I observe that JM Molony followed his decision in Pang in Nelson v Commissioner of Police [2012] NSWADT 84, as did SM Montgomery in Chudleigh v Commissioner of Police [2022] NSWCATAD 267 and SM Walker in the 2022 proceedings.
The evidence was clear from the 2022 proceedings that the Applicant had every intention at that time of moving to South Australia. His evidence before me was that he had subsequently given up on the idea of moving because it was more expensive to live in South Australia and there was less job security. His evidence though was that in August 2022 he went to Coober Pedy, where he remained until mid-2023. Further, he applied for a South Australian firearms licence on 21 September 2022, which tends to suggest he proposed to work there, and likely live in his motorhome. There was also no evidence of any change in location of the Applicant's psychologist, Ms Chantler nor that of his business accountant, nor his son, all of whom are Adelaide-based. His evidence was that his significant medical issues are managed from Adelaide.
In his most recent application for a NSW firearms licence, dated 25 June 2023, the Applicant again gave his residential address as Sandhills, notwithstanding that the fracas there when he was evicted was in November 2020. I do not accept his contention that the application contained in the s 58 documents was not authentic. His evidence was that he sat with Ms Johnstone at his Coober Pedy office and he answered the questions and Ms Johnstone entered the answers. The Applicant claimed to be computer illiterate. However, in his evidence in relation to his various changes of postal address was that he prefers the use of email; also in his internal review application he was critical of the Respondent for not providing an email address. Such comments are inconsistent with someone who claims to be computer illiterate.
As well as maintaining an office in Coober Pedy, the Applicant owns property there. His evidence was that after publication of the decision in the 2022 proceedings in August 2022 he went to Coober Pedy, where he remained until mid-2023 - nearly a year. He then returned to Sandhills to move all his possessions - various equipment and vehicles and two 40-foot shipping containers - across the road to Poverty Hill Rd which he said he has leased to 2028, although he did not produce any documents in support of that contention. He said he remained at Poverty Hill Rd until about November 2023 before returning to Adelaide for more surgery at the end of 2023. Following the surgery he went "on holidays" in the motorhome to Beach Park in Victoria, and Goolwa in South Australia. He has not been back to Poverty Hill Rd since his latest surgery in February 2024, and in this calendar year has spent only 4 days at Poverty Hill Rd. The Applicant is currently living in the Hindmarsh (South Australia) caravan park in his motorhome and he considered that wherever the motorhome is, is where he is living. He conceded that that the motorhome had been located more in South Australia over the previous year than in NSW. In summary, in the last year he has spent, at best, only from mid-2023 to November 2023 at Poverty Hill Rd, and another 4 days this year sometime before February. I accept that the Applicant stores some items at Poverty Hill Rd, but his clear evidence was that he lives where his motorhome is from time to time.
I accept that the Applicant's work as a stockman required that he travel throughout Australia and that this necessitated long periods of time away from Menindee. Further, I accept that because of the itinerant nature of his work it may be difficult, at any given time, to identify in which State he might comfortably be described as "resident". The last time he did stockman work, however, on his evidence, however, was a couple of years ago in far north South Australia, where, he said, he worked for about a year. I observe he has apparently been drawing the age pension since 2016. It is also unknown to what extent, despite the Applicant's denial, his serious health issues might preclude further stockman activities. In the last couple of years his residential ties have been stronger with South Australia than NSW.
RMS records were to the effect that between 2 March 2006 and 24 January 2024, the Applicant's residential address was recorded as Sandhills, and then, from 24 January 2024 he notified that his residential address was Poverty Hill Rd. Simplistic notifications of this kind do not make residence at an address a fact, especially when that information is inconsistent with other evidence as to where a person has been living. The Applicant's clear evidence was, for example, that for nearly a year between mid-2022 and mid 2023 he lived in Coober Pedy.
The Applicant admitted that he leads an itinerant lifestyle and that he has spent, whether by necessity or otherwise, considerable time since his application was previously considered in the 2022 proceedings, in Adelaide, Coober Pedy (where he has property and business interests), and, to a lesser extent, Goolwa and Beach Point. Some of that time the Applicant was in Adelaide for health reasons. I accept that the Applicant has serious medical conditions and that Adelaide is the nearest large centre for his treatment. His medical appointments, investigations, and procedures are ongoing and he was unable to indicate when he might no long need to continually attend appointments there. The Applicant's evidence was that he will return to NSW when his medical issues have been resolved, but he had no idea when that might be. In that regard it is clear that the Applicant has no immediate plans to return to Poverty Hill Rd.
For the reasons given above I cannot be comfortably satisfied that the Applicant is a resident on NSW, nor that he is about to become a resident of this State.
I observe that the Respondent also made submissions on other bases as to why the Applicant should not be granted a firearms licence. Having come to my decision in relation to the Applicant's residence, it is unnecessary for me to address those matters.
[7]
DECISION
1. The decision under review is affirmed.
[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
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 03 April 2024