Douglas v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2023-03-24

Introduction

This is an application by Mr Douglas (the applicant) seeking a review of the decision of the Commissioner of Police (the Commissioner or the respondent) to refuse the Category AB firearms licence in a decision made on 2 December 2022 under the Firearms Act 1996 (NSW) (Firearms Act).
Mr Douglas held a Category AB firearms licence since 2010 for the genuine reason of recreational hunting/vermin control. The licence was revoked in October 2020 due to concerns of the Firearms Registry that public safety would be at risk if Mr Douglas continued to have access to firearms.
Mr Douglas challenged that decision in this Tribunal and on 3 July 2022 the Tribunal affirmed the Commissioner's decision in Douglas v Commissioner of Police [2022] NSWCATAD 252 (Douglas Decision). The following paragraphs of the decision have some relevance to the matters the Tribunal has to determine in this application: [82] … I am not satisfied that the history of complaints and charges leads to the finding that the Applicant is not a fit and proper person to hold a firearms licence. [83] However, the evidence before me suggests that the Applicant has not complied with his obligations under section 69 of the Act. I am concerned that he does not have sufficient knowledge of his obligations under the Act. [84] As the Tribunal noted in Lukas v Commissioner of Police [2021] NSWCATAD 268, the public interest requires that licensees are aware of and comply with the legislative requirements. Public safety requires that licensees maintain their level of understanding of their obligations as a licensee. [85] In my view, the Applicant should not be allowed to hold a licence until he is able to satisfy the Commissioner that he has sufficient knowledge and understanding of his obligations particularly in regard to the requirement to notify change of address. This would require that he undertake a firearms safety course. [86] As I have noted, I have no concerns in regard to the Applicant's fitness and propriety and if he is able to satisfy the Commissioner that he has completed a firearms safety course and if he reapplies for the licence, the Commissioner may adopt a different view to that taken in regard to this matter. [87] If the Applicant's employment has been affected by the revocation of his firearms licence he may also wish to reconsider whether a licence for the genuine reason of recreational hunting/vermin control meets his requirements.

Relevant Legislation

Section 63 of the Administrative Decision Review Act 1997 (NSW) (ADR 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.
Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter and in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act.
The principles and objects of the Firearms Act are set out in s 3, relevantly: Principles and objects of this 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 … (2) The objects of the Firearms Act are as follows: … (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,
Section 11(7) of the Firearms Act are in the following terms: … (7) Despite any other provision of 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.

Applicant's evidence

Mr Douglas relied on a statement filed in these proceedings dated 16 March 2023. Mr Douglas stated that he has difficulty writing and reading and relies on the assistance of his wife. In regard to the application for a firearms licence he relied on information he received from the Firearms Registry and the respondent's solicitors.
Mr Douglas stated at paragraph 3 of the statement that the genuine reason for requiring the Category AB firearms licence since 2010 has been for recreational hunting and vermin control and makes reference to s30 of the Firearms Act.
At paragraph 4 he stated that in 2022 he expressed an interest in also gaining approval for firearms licence on a second genuine reason, which is to shoot vermin at his place of work. He expressed a view that the firearms licence he held in the past did not permit him to use the firearm at work but that in the future he planned to seek a firearms licence which would permit him to use firearms at work.
Mr Douglas denied that he intended to use the firearms (if the licence was granted) to put down sick or injured stock or to use the firearm as part of his employment or that he was required to hold a firearms licence as a condition of him employment with Moppity Vineyards.
Mr Douglas stated that he applied for the firearms licence as he wanted to continue to hunt recreationally with friends. Mr Jason Brown was a landowner who gave him permission to recreationally hunt on his property. Mr Brown was also his manager. Mr Douglas stated that if he was to do any recreational hunting on Mr Brown's property, it would have been outside of work, and he would not receive any payment for it.
Mr Douglas explained that on 24 January 2023 he received a letter from the respondent's solicitors (Exhibit R2) raising concerns about the genuine reason for requiring firearms. Ms Norquay stated in the letter; 'it is evident that you intend to use the firearms for employment purposes.'
Mr Douglas telephoned Ms Norquay on 30 January 2023 and there ensued a conversation. Following the conversation, Ms Norquay sent Mr Douglas an email which suggested that Mr Douglas provide permission from a landowner who was not his employer and prepare a statement explaining the genuine reason for the firearms licence.
Ms Norquay's email goes on to say: 'As discussed, if you intend to use firearms for business/employment, you would need to apply to the Firearms Registry once your licence is granted to add business/employment as a genuine reason, with the necessary supporting documentation. You should demonstrate an awareness and understanding of this process in your evidence. It may be useful to provide evidence of any supporting documentation with your statement. We have attached a fact sheet regarding business/employment genuine reason for your information.'
In response to Ms Norquay's suggestions, Mr Douglas wrote Ms Norquay on 11 February 2023 (Exhibit A2). In the letter, Mr Douglas quoted a paragraph from Ms Norquay's letter referring to previous representations and that he would use the firearms licence to put down sick or injured stock or eradicate feral animals that would cause damage to irrigation and the vineyard (his employer).
He went on to state: Following this correspondence and discussing the circumstance of my case with … Norquay by telephone on 30 January, I believe I have been given incorrect and misleading information from the NSW Firearms Registry when seeking information to help resolve my case over the phone. … I require my firearms licence to eradicate feral animals such as rabbits, foxes, deer and feral goats on rural land for recreational purposes. I was misguided and told that I could hold my firearms with this reason and conduct such feral animal eradication at my workplace and other farms. I now understand that I was given incorrect information and require further approval to use my firearms to eradicate them at my place of work…
Mr Douglas stated that following this information provided on 24 January and the telephone conversation with Ms Norquay on 30 January 2023, he was given incorrect and misleading information by the NSW Firearms Registry.
Mr Douglas was asked during cross examination whether he was always aware of the firearm licence type he held. He answered 'yes'. It was suggested to him that this evidence is inconsistent with the information above that he was previously misinformed.
Attached to the letter of 11 February 2023, was an authority/permission to shoot/recreational hunting/vermin control on the property of Ms Haines. This was provided in support of his genuine reason for the firearms application and stated, 'I understand under the regulations… allows me to shoot vermin at' (Ms Haines' property and not my place of work…'
Mr Douglas also attached an application for an employee authority for primary producer (not lodged with the Commissioner). He stated that he believed that his employer was a primary producer and he intended to lodge an application following the determination of his existing application with the Commissioner.

Respondent's evidence

The Commissioner relied on documents lodged pursuant to s 58 of the ADR Act. The Tribunal was referred to a letter from Mr Douglas' solicitor, Mr Mainstone dated 15 December 2020 in regard to the previous revocation of the firearms licence dealt with in the Douglas Decision which stated: He was previously employed on a full time basis as a farm labourer but due to the revocation of his firearms licence, he was unable to continue in that employment as an inability to use firearms was a requirement as part of his duties.
It was submitted that this was evidence that Mr Douglas had improperly used the firearms in the past as his firearms licence was granted on the basis of recreational hunting.
A covering email from Mr Douglas to the respondent with additional documents on the internal review dated 10 November 2022 states: As the new manager my firearms licence would benefit my work as I would be able to put down sick or injured stock or be able to eradicate feral animals that cause damage to irrigation and the vineyard.
It was submitted that this was evidence that Mr Douglas misunderstood the firearms licencing regime in that he intended to use firearms at work but that his application for a firearms licence was for recreational shooting.

Applicant's submissions

Mr Douglas submitted that the respondent misinterpreted his previous submissions and that he 'had followed Ms Norquays' instructions carefully and to the genuine reason for which I am seeking to regain my firearms licence.'
Mr Douglas confirmed that since 2010 his genuine reason for the firearms licence was recreational hunting and that 'he would apply on the return' (of this application) to use the firearms for employment/business. He stated I understand how my intention may have been misconstrued with my reference to work for the eradication of birds and feral animals it does not cover the use of firearms on rural land in connexion with farming and grazing activities which the primary production genuine reason does and it also includes the suppression of vertebrate pest animals. Last time employed by Muppety Vineyard and pests are a concern, there are also stock such as sheep used for grazing to keep the grass amongst the vines another land manageable. The stock at times may require to be humanely euthanized due to illness or injury. I submitted a copy of the primary producer employee authorization with my previous material on 11 February 2023 to demonstrate my understanding and which genuine reason I would need to apply for should I wish to use the firearms at work. Again, I was following the snow case instructions to demonstrate my understanding and show the evidence of the documentation I would use to apply. I do understand the form references category C type firearms, however my application would only be for a category AB as per my licence, which I also stated in my submission on 11 February.
Mr Douglas referred to section 12 of the Firearms Act and the reference to primary production and business or employment. Mr Douglas goes on to state that this caused confusion as to why Ms Norquay would suggest that the genuine reason for the use of firearms was his workplace. Mr Douglas stated that his workplace is a primary producer as it is classified under the Hilltops Council Local Environmental Plan 2022 LEP.
Mr Douglas also makes reference to section 12(4) of the Firearms Act that an individual can apply for more than one genuine reason. In conclusion Mr Douglas stated: I believe I have always followed the correct procedure and sought clarification and advice when I didn't know the answer. I believe I may have been given incorrect information in the past and hope to have shown that I have furthered my knowledge of my obligations under the Firearms Act and Firearms Regulations. I hope that the Commissioner can see reason and my dedication to pursuing my firearms licence being returned to me and conclude that I'm not a risk to public safety and have demonstrated knowledge of my obligations under the Act.'

Commissioner's Submissions

The Commissioner submitted that the applicant has demonstrated an insufficient understanding of the strict obligations of the Firearms Act particularly with respect to the genuine reasons to which he has sought the firearms licence and as a consequence the Tribunal could not be satisfied that it is in the public interest for the applicant to be granted a firearms licence.
The respondent submitted that in the Douglas decision and in documentation lodged with Firearms Registry the applicant has indicated an intention to use his firearms for activities for which he did not hold authorisation, which is to use the firearms as part of work to put down sick or injured stock or be able to eradicate feral animals that cause damage to irrigation and the vineyard and that it is evident that the applicant intends to use firearms for employment purposes.
The respondent relies on Lucas v Commissioner of Police [2021] NSWCATAD 268 that public interest requires that licensees are aware of and comply with the legislative requirements. Public safety requires that licensees maintain their level of understanding of their obligations. The Commissioner submitted that the Tribunal is required to look at the applicant's conduct as a whole and should not shy away from exercising a discretion adverse to the applicant merely on the grounds that the applicant may suffer hardship and or inconvenience Hill v Commissioner of Police [2002] NSWADT 218 at [22]

Public Interest

As I set out in Heaney v Commissioner of Police, NSW Police Force [2023] NSWCATAD 36 at [36]-[40]: Section 11(7) of the Firearms Act permits a refusal of a firearms licence if it is contrary to public interest. Public interest includes the applicant's safety and that of the whole community. In considering public interest, the objects and scope of the Act are amplified; Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors [1995] IRCA 540; (1995) 131 ALR 657 at 681 per Wilcox and Keely JJ and are given paramount consideration Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24]. Consistent with s 3(1)(a) of the Firearms Act, the applicant's individual interest in obtaining or retaining a firearms licence is subservient to the public's right to safety. In considering the question of public interest, the Tribunal takes into account the interests of public protection, public safety and the proper functioning of the legislative requirements of the firearms scheme. Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]. Firearms possession is a privilege and his conditional on the need to ensure public safety. Misuse of firearms can result in catastrophic consequences. Davos v Commissioner of Police [2013] NSWADT 7 at [117]; Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28 (Ward). The Tribunal has to consider all of the evidence in the exercise of its discretion and no burden falls on either party. Risk must be considered taking into account all of the relevant circumstances of the case. The risk in question must be a real and appreciable risk. The question for the Tribunal is whether granting Mr Douglas with a firearms licence would cause a risk to the safety of the public. The effect of the licencing regime is not to punish, it is to protect the public. Taking into account the objects and purpose of the Act, the Tribunal must be satisfied that that there is virtually no real and appreciable risk posed to the public safety by the granting or reinstating of a firearm licence. Webb v Commissioner of Police, New South Wales Police [2004] NSWADT 110 [32]; Ward [28].
With those principles in mind, I consider the question of public interest. First, I must determine the factual dispute before the Tribunal.
The Commissioner submitted that the Tribunal should find that Mr Douglas has previously used firearms for work and that he intends to do that again in the future. It is not in dispute between the parties that the firearms licence Mr Douglas held in the past and the current application would only permit Mr Douglas to use the firearms for recreational hunting.
I turn now to the evidence relied on by the Commissioner. First the letter from Mr Douglas' solicitor dated 15 December 2020. I find that the statement making reference to firearm requirement being 'a part of his duties' to mean that he was required to hold a firearms licence as part of his employment as the employer intended for Mr Douglas to apply for permission to use his firearms for employment purposes. However when Mr Douglas had his licence revoked in 2020, his employment was terminated.
I can see how it may be inferred that Mr Douglas was in fact using the firearms as part of his employment based on the words in the letter but having the opportunity to hear Mr Douglas' explanation as to the circumstances around his employment as a farm labourer and the subsequent end of the employment, I accept Mr Douglas' evidence that he did not use the firearms for employment purposes when he was employed as a farm labourer.
Turning next to the document from Mr Douglas dated 10 November 2022 provided in support of the internal review, Mr Douglas explained that the firearms licence would 'benefit his work'. I find that as at this time Mr Douglas understood that if the firearms licence was granted, he would be able to use the firearms licence for work related purposes. This is clearly an erroneous view.
It is entirely understandable that on receipt of this information Ms Norquay would form the view that Mr Douglas did not understand that he was only able to use the firearms (if the firearms licence was granted) for recreational hunting and not for employment purposes.
Ms Norquay's letter and email to Mr Douglas dated 24 and 30 January 2023 respectively, sought to assist him to understand the situation correctly. Ms Norquay also properly sought clarification of the 'genuine reason' and sought to inform him that he could have more than one genuine reason which may include recreational hunting/vermin control and business/employment.
Following Ms Norquay's letter on 24 January 2023 and conversation and email on 30 January 2023, Mr Douglas came to understand that he was incorrect to believe that he could use the firearms for work as he stated in the letter of 10 November 2022.
I infer from Ms Norquay's email to Mr Douglas on 30 January 2023, that during the phone call, Mr Douglas did not inform Ms Norquay that the genuine reason for requiring firearms was for employment purposes. This is so because Ms Norquay advised Mr Douglas to seek an authority from a landowner for recreational hunting.
I accept Mr Douglas' evidence that he made the statement on 10 November 2022 based on his understanding of the information he was provided by the Firearms Registry. I do not need to make any factual findings as to what information Mr Douglas received, only to state that I accept that Mr Douglas incorrectly understood that he could use the firearms for employment.
At the hearing there was a suggestion that Ms Norquay's advice was that Mr Douglas should have applied for the firearms licence based on two genuine reasons and that Mr Douglas' misunderstanding of this was a demonstration of his lack of comprehension of the Firearms Act leading to him being a risk to public safety or public confidence in the administration of the licencing system. Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33].
Some of that confusion may have been caused by the Tribunal by referring to s12(3) of the Act, however on a close reading of Ms Norquay's email, it is clear that while she stated that more than one genuine reason may be used in a firearms application, she was suggesting to Mr Douglas that he add the employment genuine reason once he has a firearms licence.
The Commissioner submitted that even though Mr Douglas' evidence is that his genuine reason for requiring firearms is for recreational hunting and that he understands that the licence if granted would not permit him to use firearms at work, he has not demonstrated sufficient understanding because he has identified a form P565 Application for an Employee Authority for a Primary Producer' is the wrong form. Mr Douglas submitted that it was the correct form. Either way, there are a numerous application forms to choose from, because a person identifies a form which is incorrect is insufficient, on its own, to conclude that the firearms licence should be refused based on the ground of public interest.
The Tribunal is satisfied that Mr Douglas' genuine reason for requiring firearms is for recreational hunting. The Tribunal is also satisfied that Mr Douglas has been diligent in his attempt to understand and comply with the obligations under the Firearms Act.
Ms Norquay's advice to Mr Douglas on 30 January 2023 that he would need to apply for firearm use for business/employment once his licence is granted is consistent with Mr Douglas' permission from another landowner, his restatement that his genuine reason was for recreational hunting and his indication that if his licence was granted he would apply to extend it for business/employment use.
I am also satisfied that at all times when Mr Douglas held the firearm he did not use it in employment and had such an understanding at the relevant time. However when he spoke to someone at the Firearm Registry he came to believe that he could use a firearm during employment even if the licence was granted on the basis of the genuine reason of recreational hunting for vermin control. This explains Mr Douglas' comments to Ms Norquay that he was mistaken.

Conclusion

Before the Tribunal Mr Douglas stated that he requires the firearms licence to 'eradicate feral animals such as rabbits, foxes, deer and feral goats on rural land for recreational purposes.' I accept that this is the genuine reason that he is seeking a firearms licence.
Based on the material before it the Tribunal, I do not consider that the issue of the firearms licence to Mr Douglas would be contrary to the public interest.
The correct and preferable decision is to overturn the decision of the Commissioner to refuse Mr Douglas' application for a firearms licence.

Orders 1. The decision of the Commissioner of Police NSW made on 2 December 2022 to refuse to issue the firearms licence is set aside.

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: 07 June 2023

Administrative Decision Review Act 1997(NSW)

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Judgment (10 paragraphs)

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Legislation Cited (3)

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