This is an application by DZV seeking review of a decision by the Commissioner of Police, NSW Police Force under the Firearms Act 1996 (the Act) to revoke her category AB firearms licence. The decision was made on the basis that it is not in the public interest for DZV to hold a firearms licence. That is the issue in this application.
[2]
Jurisdiction
The Tribunal has administrative review jurisdiction over a decision, or class of decisions, of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review: s 9(1) Administrative Decisions Review Act 1997 (ADR Act). Section 75 of the Firearms Act 1996 confers jurisdiction on the Tribunal to review certain decisions including a decision to revoke a licence.
[3]
Background and evidence
DZV was issued with a Category AB firearms licence in mid 2015 for the genuine reason of target shooting. She had three registered firearms which were stored at her home. DZV told me she would shoot targets from time to time, sometimes fortnightly, at two nearby shooting ranges.
DZV is separated from her husband of many years but said, because he has no regular place to live, he would stay at her house two or three times a week, primarily in the winter. He also would take her shopping and looked after her dog when she goes to the shooting range. He also drove her to the shooting range as she does not have a car. At the hearing DZV said she does not know where her husband is currently living but also said that she sees him once or twice a fortnight.
On 22 August 2018, at approximately 11:50 pm, DZV's husband called Lifeline and said that he was in a car at the beach and had a gun and was going to shoot himself. Police later triangulated the call and located him in his car. During a search of the car police did not locate any firearms but did locate a set of keys in the boot of the car sitting on the spare tyre under the carpet, one of which appeared to be a gun safe key.
Police searched the mobile phone belonging to DZV's husband and found messages between him and DZV. One of these messages said "Your're (sic) gonna get in trouble cause I have the key to the gun safe".
DZV's husband was scheduled under s 22 of the Mental Health Act 2007 and, after being assessed, was discharged from hospital after a couple of hours. He reported to hospital staff that being denied access to his grandson triggered his behaviour in threatening suicide. He was not found to be suffering from any serious mental health disorders and was therefore not involuntarily detained for mental health treatment.
Early the following morning police went to DZV's home to seek an explanation about how her husband came to be in possession of her firearms safety keys. DZV told police that she had two sets of keys to her gun safe. She said she was a member of the gun club and on the last most recent occasion had been taken to the club by her husband. While she was shooting one set of keys was left in the gun bag in the boot of the car. She said that after shooting she returned her firearm to the bag and when she got home placed it in her gun safe which was locked and secured. As she had used the other set of keys to lock and unlock the gun safe, she gave no thought to the keys that she believed were still in the gun bag. DZV said that the second set of keys must have fallen from the gun bag and been lost in the boot of the car.
DZV's safe storage system was inspected by police and found to comply with the legislative requirements. Police were satisfied that now that she was in possession of both sets of keys to the gun safe, no one else would have access to the safe. Police did not issue a suspension notice but DZV's three registered firearms were seized pending further inquiries.
Later that night DZV attended the police station to take part in an electronically recorded interview. During that interview she acknowledged that:
she had realised the night before that the second set of keys to the gun safe were missing and that her husband had them;
she did not, however, report to police that her husband had the gun safe keys as she was worried about the impact of such a report on her daughter's employment [NOT FOR PUBLICATION];
the second set of gun safe keys has never been secured at her home and her husband has been aware of their location since she obtained her firearms;
despite knowing the location of the keys, her husband has never accessed her firearms; and
her firearms were not ever secured in a lockbox when her husband drove her to the shooting range.
Text messages on DZV's mobile phone show that early in the evening of the night on which the keys were found in her husband's car, he had told her that she was going to get taken away for having a loaded gun in her safe and giving him a key. After being released from hospital early the following morning, her husband texted her with instructions to "unload the Ruger and lock it back up expect a visit from police they took your safe keys out the car and kept them wouldn't give them back".
The respondent noted that DZV's husband has been refused a firearms licence as he was subject to an apprehended violence order: s 11(1)(b) Firearms Act.
About a month after the interview with police, DZV's firearms licence was revoked. That decision was upheld on internal review.
At the hearing DZV said that the last time she had gone to the shooting range was about a month before the keys were located in the car. She said she had not realised the keys were missing until her husband mentioned that he had them. She said that at the time they were both upset as their former daughter-in-law had told them they would not be able to see their grandson in the future. She said they argued and that during the argument her husband told her that he had thrown the keys off the jetty. She confirmed that she did not go to the police about the missing keys. DZV also said that her husband assaulted her during the argument.
When questioned at the hearing DZV said in relation to one of the text messages from her husband that there was no loaded Ruger in the gun safe. She stated that her husband had never gained access to her firearms.
At the hearing the respondent drew attention to police records concerning DZV's husband. These are set out below:
1. In January 2010, following a decision by Centrelink to reduce the payments received by DZV's husband due to suspected fraud, he is alleged to have told the husband of a Centrelink staff member that he was going to blow up the Centrelink office. The matter was investigated but no charges were laid.
2. In May 2010 police were called to the house of DZV and her husband due to a dispute with their neighbour concerning their dog during which her husband made threats to his neighbour that he would kill him and beat him. Following police discussions with DZV, the neighbour did not wish to pursue the matter.
3. Also in May 2010 DZV's husband was an inpatient in a drug and alcohol clinic when he was overheard to say that he was going to get a gun and shoot his doctor and that he had been planning this for a long time. It appears that he was suffering from withdrawal symptoms time. While the matter was reported to police, the clinic did not consider that DZV's husband posed a threat.
4. In February 2017 police attended a domestic dispute at the home of DZV and her husband. Each reported that they had had an argument and had grappled with each other. Each had received minor injuries and neither wish to pursue the matter with police.
5. In April 2019 there was a dispute in a local park between DZV, her husband and their former daughter-in-law over issues concerning their grandson. DZV's husband is alleged to have punched and struck his daughter-in-law in the face and upper body a number of times until a local male resident intervened. He was charged with common assault in relation to this event.
[4]
The legislation
The underlying principles of the Act are stated in s 3(1) of the Act, and relevantly include:
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.
Section 24 of the Firearms Act sets out the circumstances in which a licence may be revoked. It relevantly provides:
"24 Revocation of licence
…
(2) A licence may be revoked:
(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or
(b) if the licensee:
(i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or
(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or
(iii) contravenes any condition of the licence, or
(c) if the Commissioner is of the opinion that the licensee is no longer a fit and
proper person to hold a licence, or
(c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or
(d) for any other reason prescribed by the regulations."
For the purposes of s 24(2)(d) of the Act, clause 20 of the Firearms Regulation 2017 provides:
"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."
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Public interest
What is meant by the term "the public interest" has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court stated at 681:
"The purpose of the reference to 'public interest' is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation."
In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25] the Appeal Panel said that the "public interest":
"…is an inherently broad concept giving the appellant [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual."
In Cusumano v Commissioner of Police [2001] NSWADT 50 at [23] Deputy President Hennessy stated:
"There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act."
Importantly, s 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 [27-28] Deputy President Hennessy said that in terms of public safety:
"27…The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.
28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk."
That case dealt with 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 [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 [64] - [66]; Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315 at [62]-[64]. The question is whether there is in all the circumstances a real and appreciable risk to the public: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 at [74]; Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124 at [58].
It has also been stated that the public interest requires that all licensees be aware of, and comply with, the legislative requirements: Cook v Commissioner of Police [2003] NSWADT 30 at [34]. 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: Wiltshire v Commissioner of Police [2005] NSWADT 75 at [25].
[6]
Consideration
The principal issue is whether there would be a risk to public safety if the revocation of DZV's firearms licence is set aside. The likelihood of risk is to be assessed by reference to prior conduct: Brosowski v Commissioner of Police [2003] NSWADT 182 at [41]. In this case, the respondent submits that the prior conduct of DZV's husband is highly relevant to determining the issue. This is undoubtedly correct. In Tolley v Commissioner of Police [2006] NSWADT 149 at [31] the Tribunal found that:
Given the breadth of the Commissioner's discretion and the overriding object of public safety there is no basis for differentiating between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence.
In addition, in considering whether there is virtually no risk to the public, the Tribunal should consider the risk to DZV and to her husband, as members of the public, if she is granted access to firearms: Kavalieratos v Commissioner of Police, NSW Police Force [2014] NSWCATAD 117 at [74].
Of great concern is the fact that DZV was unaware for a period of about a month of the location of her second set of keys for the gun safe. During that time, and indeed previously as her evidence was also that her husband had always known the location of her keys, he could have accessed her firearms with ease. She did not notify or inform police of the missing keys or statements by her husband that he had thrown the keys off the jetty into the water. I am satisfied that, despite no charges being laid or conviction, that DZV was in breach of the Firearms Act in failing to ensure the safekeeping of her firearms.
The references by DZV's husband to a loaded Ruger are concerning and her response to his message about "having a loaded gun in the safe and giving me a key" of "No you did that" are an indication that the gun indeed may have been loaded and that her husband had access to the firearms. That would be particularly serious in circumstances where he is disqualified from having a firearms licence. There is, however, no firm evidence that he did access the firearms and I cannot be satisfied that DZV's husband accessed her firearms.
[NOT FOR PUBLICATION]
The police record of DZV's husband and indeed her own evidence concerning his temperament indicates that he is at times unable to control his emotions and lashes out at others with threats of violence, and on occasion, with actual violence. Also of concern is the fact that DZV's husband has threatened self-harm with a firearm.
As the Tribunal pointed out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [22]:
Not every suicide attempt will justify the revocation of the person's firearms licence. The Tribunal must assess the likelihood that AML will attempt suicide or self-harm again and, if that happens, the likelihood that a firearm will be used.
The evidence is that the actions of DZV's husband in calling Lifeline and threatening to kill himself were prompted by the loss of access to his grandson. From the evidence it appears that his reactions to stressors in his life can be volatile. The respondent's submissions that there remains a risk that DZV's husband may have further attempts at suicide or self-harm, or may have other personal life stressors which cause him to threaten violence, and that if he does, it is possible that a firearm will be used, given his past comments to a vast range of people over many years in which he threatens harm or violence, cannot be discounted.
Unfortunately, DZV lacks a degree of insight into the seriousness of the fact that she was unaware for a period of about a month of the location of her second set of keys to the gun safe. Even in light of her husband's threats towards himself and her she did not seem to appreciate that the fact she did not have possession of the keys was a matter of great concern.
While I accept that DZV would make efforts to keep her keys secure in the future, I cannot be satisfied, given the previous conduct of both DZV and her husband, that there is not an appreciable risk that DZV's husband would or could not access her firearms.
Section 19(1) of the Firearms Act provides that a licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose. I considered whether risk could be mitigated if a special condition were imposed on DZV's licence that provided that her firearms are not to be stored at her residence. However, her lack of appreciation of her obligations with respect to the safekeeping of her firearms, including taking all steps to ensure that persons who do not possess a firearms licence do not have access, her husband's history of volatility and threats and the nature of her relationship with him leads me to conclude that the imposition of such a condition would not be sufficient to reduce the risk to virtually nil. I also note that she does not require a firearms licence to derive income or maintain a farm but rather for recreational purposes.
I am therefore satisfied that it would not be in the public interest for DZV's firearms licence to be restored. For these reasons the correct and preferable decision is for the decision under review to be affirmed.
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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: 14 February 2020
The outcome of the charge in relation to the last event was not known at the time of the hearing this. DZV alleges that her former daughter-in-law assaulted her during this incident. At the hearing DZV said that her husband has a bad temper and gets out of control and that he has been aggressive and violent towards her. She described him as having a "short fuse" and said that he explodes and makes threats but did not accept that he makes threats to kill people. She said that her husband does not have a mental illness
The respondent also provided some further information relating to DZV's husband on a confidential basis.
[NOT FOR PUBLICATION]
DZV was visibly upset at the hearing and insisted that her husband had never accessed any of her firearms. She said that she had learned her lesson about the safekeeping of the keys and would not make that mistake again. She said that the pastime of target shooting was very important to her as it was one of the only recreational activities she could engage in due to her physical limitations.
The respondent acknowledged that DZV has no recent offences of any concern and that she has not been charged for any contravention of s 39 of the Firearms Act in relation to the safe keeping of firearms. The respondent's position, however, is that:
1. DZV failed to take all reasonable precautions to ensure the safekeeping of her firearms and therefore contravened s 39 of the Firearms Act; and
2. her domestic circumstances, in respect of her husband and his knowledge and access to her firearms, pose a risk to public safety.
The respondent submits that in these circumstances the Tribunal could not be confident that there is no risk to public safety and therefore it is not in the public interest for DZV to have a firearms licence.