Fisher v Commissioner of Police

Fisher v Commissioner of Police - [2019] NSWCATAD 239 - NSWCATAD 2019 case summary — Zoe

[2]

Applicable legislation

The Commissioner's power to revoke the firearms licence stems from s 24 of the Firearms Act: 24 Revocation of licence (1) A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order. (1A) The Commissioner must revoke a licence that is held for the purpose of employment as an armed security guard (within the meaning of the Security Industry Act 1997) if: (a) the licensee has failed to undertake any firearm safety training required under this Act or the regulations, or (b) in the case of a licensee who holds a class 1F licence or a visitor permit authorising the licensee to carry out security activities of a kind authorised by a 1F licence under the Security Industry Act 1997 - the 1F licence or visitor permit is revoked under that Act or the licensee contravenes any condition of the firearms licence under this Act. (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. (2A) If the Commissioner revokes a licence because the licence holder would be refused a licence on the grounds referred to in section 11 (5A), the Commissioner is not, under this or any other Act or law, required to give any reasons for revoking the licence on those grounds. (3) The Commissioner of Police may revoke a licence by serving personally or by post on the licensee a notice stating that the licence is revoked and the reason for revoking it. (4) The revocation of a licence by such a notice takes effect when the notice is served or on a later date specified in the notice. (5) The Commissioner may, by serving a further notice on the holder of a licence, cancel a notice revoking a licence before the notice takes effect.
In relation to s 24(2)(a), it is necessary to refer to the restrictions on the issue of licences in s 11, which provides in pertinent part: 3) A licence must not be issued unless: (a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and (b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and (c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and (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. (3A) Despite subsection (3) (b), the Commissioner may require an applicant for a licence to complete such firearms training and safety courses as are approved by the Commissioner in relation to the category of licence concerned. (4) Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of: (a) the applicant's way of living or domestic circumstances, or (b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or (c) the applicant's intemperate habits or being of unsound mind. (5) A licence must not be issued to a person who: (a) is under the age of 18, or (b) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or (c) is subject to an apprehended violence order or interim apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to an apprehended violence order (other than an order that has been revoked), or (d) is subject to a good behaviour bond, whether entered into in New South Wales or elsewhere, in relation to an offence prescribed by the regulations, or (e) is subject to a firearms prohibition order, or (f) is a registrable person or corresponding registrable person under the Child Protection (Offenders Registration) Act 2000. …. (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.
The making of an interim apprehended violence order has the effects set out in s 23: 23 Suspension of licence on making of interim apprehended violence order (1) A licence that authorises a person to possess or use a firearm is automatically suspended on the making of an interim apprehended violence order against the person. (2) The licence is suspended until the order is confirmed or revoked.
Under cl 5(1)(b) of the Firearms Regulation 2017, the following offence is one of those prescribed for the purposes of ss 11(5) and 29(3)(b) of the Act: (d) Offences involving violence An offence committed under the law of any Australian or overseas jurisdiction, being: (i) an offence involving the infliction of actual bodily harm on a person in respect of which the penalty imposed included any term of imprisonment (whether or not suspended), a community service order, a good behaviour bond or a penalty of $500 or more, or (ii) an offence involving kidnapping or abduction, or (iii) an offence involving stalking or intimidation, or (iv) an offence of attempting to commit, threatening to commit or conspiring to commit an offence referred to in subparagraph (ii) or (iii).
Clause 20 of the regulation provides that the Commissioner may also revoke a licence if satisfied that it is not in the public interest for the licensee to continue to hold the licence.
The applicant raised a point under s 79 of the Act, which provides: 79 Disclosure by health professionals of certain information (1) If a health professional is of the opinion that a person to whom the health professional has been providing professional services may pose a threat to public safety (or a threat to the person's own safety) if in possession of a firearm, the health professional may inform the Commissioner of that opinion. (2) A health professional is not subject to any criminal or civil liability, including liability for breaching any duty of confidentiality, if the health professional informs the Commissioner in good faith of the health professional's opinion referred to in subsection (1). (3) In this section: health professional means any of the following persons: (a) a medical practitioner, psychologist, nurse or social worker, (b) a person who provides professional counselling services, (c) a person who is of such other class of health professional as may be prescribed by the regulations.
The initial revocation and the internal review decision affirming it were based on mental health grounds. In these proceedings, however, the Commissioner broadened the grounds of disqualification, as he is entitled to do. The issues in this application are therefore:

whether the revocation of the applicant's license should be affirmed on the ground that he is subject to an apprehended violence order;
whether there is reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of being of unsound mind;
whether the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace;
whether the tribunal should be satisfied that it is not in the public interest for the applicant to hold the licence.

[3]

Mr Michael Kruger-Davis

The applicant called Mr Michael Kruger-Davis, a registered psychologist who had been approached by the applicant's legal representatives to assess the applicant's suitability to hold a firearms licence. At the hearing he adopted his two reports, one dated 8 June 2019 (exhibit A1) and the other 3 July 2019 (exhibit A3).
The witness had conducted a telephone interview with the applicant on 3 June 2019 in which Mr Fisher had spoken about the situation in the lead-up to his firearms licence being revoked. On the same day the witness had completed a mental status examination, as well as a suicidal risk assessment and assessments relating to the applicant's mental health. In reaching his professional opinion, he had conducted six assessments:

a mental status examination;
a Beck depression inventory (2nd edn);
a depression anxiety stress scale (DASS);
a Beck anxiety scale;
a K10 Kessler psychological distress scale; and
a New South Wales Health suicidal risk assessment.

Mr Kruger-Davis said that the mental status examination detected no significant disturbances of mood. The applicant's affective expression was normal and appropriate, his speech lucid and clear. He held a positive attitude and appeared to be honestly answering the questions. He did not express any hallucinations or dissociations.
The Beck depression inventory found no indications of mild, moderate or severe depression. His totals on the DASS scale produced totals all in the normal range and the K10, which is a simple measure of psychological distress, showed no level of distress. On the New South Wales Health Suicidal Risk Assessment Guide, he would be considered a very low risk. He noted that Dr Huntley's references to irrational behaviour, fixations and unpredictable outbursts were based on hearsay from unstated sources and did not appear to represent those statements as actual descriptions of the applicant's mental state and behaviours.
The applicant had outlined to the witness the issues between him and his neighbour regarding the road between the two properties and pointed out that he has boundaries with 12 other property holders and two state government agencies, none of whom had issues with him as a farmer or as a person in general.
Referring to the personality assessment inventory (PAI) relied on by Dr Huntley, the witness's report said it was a valuable tool for screening psychopathology but it was likely to have been inconclusive because Mr Fisher did not appear to have a mental disorder. Questions relating to psychotic symptomology, delusions, or hallucinations would not be scored. The result would appear inconclusive because the applicant would be considered mentally healthy. He did not present with any mental or personality disorder, does not drink alcohol or take drugs, has never been diagnosed with any psychological or mental illness and is managing to be the sole carer for his three children and successfully to run a farm during a drought.
For those and other reasons, it was his opinion that the applicant:

is of sound mind,
does not suffer from depression or any other mental illness or personality disorder,
has no history of suicidal ideation, attempts or self-harm,
has been able to exercise rational judgment and responsible control over the possession and use of firearms in the past,
gives no indication that he will not be able to exercise rational judgment and responsible control over the possession and use of firearms in the future, and
does not appear to present a risk to public safety.

The report concluded with a recommendation that the applicant's firearms licence be reinstated. In his second report, dated 3 July 2019 (exhibit A3), the witness explained that he was supplementing his original report because he had been provided with certain further documents, including the police fact sheet relating to the violent confrontation with Mr Mooney on 7 June 2018, an additional report and some further documents from Dr Huntley together with a number of emails. Mr Kruger-Davis's second report explained that he had contacted the applicant on 27 June 2019 on receiving the additional information and discussed that material, and had a further telephone interview with him on 2 July 2019.
During both interviews he had conducted a mental status examination as they spoke. The applicant's affect appeared normal and the witness could detect nothing in what he said or the way he spoke that would indicate that he was suffering from depression or had a personality disorder. Mr Kruger-Davis also conducted a global assessment of functioning. Mr Fisher operates a large mixed grazing property and is managing financially even through the drought. He cares for and is raising his three teenage children and still has an amicable relationship with his ex-wife. He does not consume alcohol or drugs, nor does he gamble. He is healthy and fit and enjoys farming because it provides him with a lifestyle that is outside and he is the manager. He is bilingual and has tertiary qualifications and a wide range of interests and pursuits. His global assessment of functioning would be rated very high.
When discussing the dispute with Mr Mooney, he explained that he had never taken out an AVO because the neighbours were all clay target shooters and if he took out an AVO they would lose their licences, their guns and their sport. That response, Mr Kruger-Davis concluded, clearly showed that he does have a high degree of empathy for his neighbours and although he wants his rights recognized, he does not want to cause undue stress to the family. He also said that the neighbours are third cousins.
In his discussions with Mr Fisher and in light of the outcomes of his global assessment of functioning, it was hard to consider his reasoning and judgment to be impaired. Although his behaviours at times might be considered odd and eccentric and he had a strong sense of self-righteousness, he did not demonstrate "an enduring pattern of inner experience and behaviour that differs from his culture". Disputes over road access, gates and fences are very common in rural areas, especially in times of drought when the "laneway" might be perceived as an extra paddock. He did not meet the diagnostic criteria for a personality disorder as set out in the DSM - V.
The report concluded that the applicant believes it is important to fight for what he believes is just and not simply be trodden over. His "need-to-know" everything, thirst for knowledge and understanding of his rights could be misconstrued by agencies. That did not equate with a mental disorder or personality disorder. Without explicit descriptions of the irrational behaviours and fixations, or examples of when he is unable to comprehend or follow instructions, and descriptions of unpredictable outbursts and the context in which they occurred, it was reasonable to assume that the original report to the police might have been vexatious. The person who made the report to the police needed to be identified in order to determine the veracity of the behaviour descriptions, and the frequency, duration and intensity of the behaviours. Mr Kruger-Davis's conclusions and recommendations remained the same as in his earlier report.

[4]

Dr James Huntley

The respondent relied on the s 58 documents (exhibit R1) and a bundle of supplementary documents (exhibit R3), and also called the psychologist, Dr James Huntley, who adopted his report of 3 March 2018 (exhibit R1, pp 50-52) as well as his later letters of 1 September 2018 (exhibit R3, pp 12-13) and 22 June 2019 (exhibit R3, pp 14 - 16). He said he had prepared his report of 3 March 2018 at the request of the applicant, as the Firearms Registry had required him to obtain an assessment by a psychologist or psychiatrist (see letter 22 November 2017, exhibit R1, pp 34-36).
As part of the evaluation for the 3 March 2018 report, he had administered a Morey Personality Assessment Inventory. As it is quite long, requiring 344 responses, he had given it to the applicant and sent him away to complete it and return it later. He had written the letter of 1 September 2018 after a second meeting with the applicant in May, because he had been concerned that he needed to update the Firearms Registry.
Dr Huntley noted that Mr Kruger-Davis's 8 June report had applied a number of tests, but in his view if there was no indication of psychopathology on one test, the result would usually be the same on other tests, and vice-versa. There was no need to administer multiple tests. He noted that the 8 June report had not mentioned the police event report E 66811260 (exhibit R1, pp 22 - 24) concerning the incident on 7 June 2018 which, as it was not normal behaviour, would have been relevant to comment on. If Mr Kruger-Davis had had access to the event report and the background to the incident, the event would have represented a significant risk to public safety.
That the later report had also made no reference to the event and had maintained the conclusion that the applicant presented no risk to public safety sounded very incongruous. It was hard to see how the author could have so concluded in light of the history with which he had been briefed. His own letter of 22 June 2019 (exhibit R3, pp 14 - 16) had concluded that "a thorough evaluation of Mr Fisher by an appropriate psychiatrist should be undertaken before consideration is given to return of his firearms".
He remained of that view because of the gravity of the events in June 2018. A forensic psychiatrist would be able to identify any disorder definitively and prescribe medication. In practice a psychiatrist who performed such an evaluation would prescribe medication and refer the patient to a psychologist for more time-intensive counselling and behaviour-based treatment. It was really not the province of a psychologist to identify a mental disorder definitively without the corroboration of a psychiatrist.
In his report of 3 March 2018, Dr Huntley had written that "Unfortunately, Mr Fisher's responses on one of the validity scales rendered interpretation invalid, with a T-score of 70. Morey states that a high score of 68 or above 'suggest that the respondent attempted to portray himself as exceptionally free of the common shortcomings which most individuals will admit'…. The other very high score was in that suggesting that there will be substantial resistance in any treatment requiring 'willingness to participate, recognition of need for change, openness to new ideas, and a willingness to accept responsibility for actions'".
The report concluded, "With no medical or psychological history available with which to form an opinion, and no valid result on formal questionnaire, I am unable to definitively comment on Mr Fisher's suitability to manage a firearm at this time. Moreover, the initial indicators are that Mr Fisher would not be a suitable candidate for psychological evaluation or intervention, with entrenched ideas about his own positive demeanour potentially marring the openness and engagement required to glean relevant information or effect change. I therefore suggest that, with such paucity of background information, further investigation is warranted before Mr Fisher has his firearms returned".
In his letter of 1 September 2018 (exhibit R3, pp 12 - 13), Dr Huntley stated that at his second appointment [in May], he had attempted to have the applicant explain why he thought neighbours were concerned and what he could do to foster better relations with them and alleviate their concerns. "Overall, I felt he displayed inordinate self-righteousness and justification of all of his own complaints. He appeared to have little or no concept of or any empathy with neighbours' concerns, nor felt the need to address them. Indeed, I understand he has a number of formal complaints before the Courts". He also noted that Mr Fisher had pursued formal complaints against himself through the Privacy Commissioner and the Health Care Complaints Commission, which are ongoing.
The letter concluded, "In my opinion, it is apparent that Mr Fisher exhibits impaired reasoning and judgment. Clinically, he appears to manifest traits consistent with a personality disorder, but there could be several factors behind his presentation, including such personality disorder, alcohol or other drug use (which he denied using at all in his report to the GP), organic brain trauma, a dementia process or combinations of any or all of these…. I feel it is imperative that Mr Fisher's presentation be explored further and urge thorough psychiatric evaluation and a more extensive examination of his background, personality factors, any substance abuse and any organic effects or illness that may be contributing to his presentation".
Dr Huntley's letter to the respondent dated 22 June 2019 (exhibit R3, pp 14 - 16) replies to Mr Kruger-Davis's critique in his 8 June 2019 report. He notes that in the weeks after Dr Huntley's initial assessment, the applicant had embarked on formal procedures to gain access to the original PAI scoresheet, which is protected by copyright and not open to the public. "There appeared to be no thought to addressing neighbours' concerns, or exploring reasons behind the removal of his firearms. He was wholly and entirely fixated on obtaining that score sheet…. [His actions] very much gave rise to the feeling that Mr Fisher did indeed exhibit 'irrational behaviour and fixations'…. I continue to feel that Mr Fisher would find psychological intervention in addressing the concerns of neighbours and reasons for removal of his firearms challenging. I feel that Mr Kruger-Davis's recommendation to reinstate Mr Fisher's firearms licence based on a phone interview/screening assessment is precipitous [sic] and I maintain that a thorough evaluation of Mr Fisher by an appropriate psychiatrist should be undertaken before consideration is given to return of his firearms".
Cross-examined by Mr Kable, the witness agreed that he had carried out only one test, the PAI, but said it was very thorough. It screens for obvious aberrant behaviour. Consequently he had carried out an evaluation in depth, not merely a screening. Although he had said his initial assessment had proved inconclusive, it was not necessarily true to say that the more tests are applied, the better. There is some over-reliance on such tests because they do not obviate the need for the observation of obvious signs. The applicant had a tendency to present himself as better than he is, and other assessments were needed. He had not carried out such further assessments because he had performed the task that the registry had asked him to.
If it had transpired that his position in relation to the dispute was correct (as he had been successful in the District Court) Dr Huntley said that he would not have changed his conclusion, which was based on Mr Fisher's presentation with him and the communications between them. His impaired reasoning and judgment would count against restoration of his licence. His conclusion that the applicant suffers from a personality disorder was based on the second appointment and on their communications.

[5]

Applicant's submissions

The applicant relied inter alia on written submissions dated 9 July 2019 (exhibit A2) in which he pointed out that he had been a licensed firearms holder for a long period of time without coming to the adverse attention of the authorities. There had been a long-running dispute with his neighbours in relation to a road access (which the applicant said was a reserved Crown road) between their respective properties, which escalated when the neighbours erected fences and gates across the road, hindering the applicant and leading to charges of trespass and assault. A Supreme Court action concerning the road did not result in any finding.
The trespass charge was dismissed on appeal to the District Court, a result which the applicant argued showed that he had an established rate from the outset in relation to the access. He submitted that the neighbours' attitude was confrontational and intimidatory, and that the police attitude was biased and unsupporting in the circumstances.
The applicant disputed that he suffers from any mental health condition that would preclude him from holding a firearms licence and submitted that the police could not establish the correct protocol for challenging that position.
The submissions contended that s 79 required that any submission to the Commissioner stating that a person might pose a threat to public safety, such as on mental health grounds, had to be made by a health professional, and in this case it was possible that the information on which the Commissioner had acted to issue the original suspension, and subsequent revocation, was not provided by a health professional. In any event the report by Mr Kruger-Davis should have been sufficient to satisfy the Commissioner's request for further evidence in relation to Mr Fisher's mental capacity.
When the matter came on for hearing part heard on 13 November 2019, Mr Grey appeared for the respondent but there was no appearance for the applicant. When the applicant's solicitor was contacted by telephone, it appeared that there had been a scheduling error and that he was at the time in Maitland, and could not attend the hearing at the tribunal in person. He pressed his submission under s 79 and sought a ruling as to whether in the circumstances a jurisdictional issue arose as to the Commissioner's standing to revoke the licence on mental health grounds when there was no evidence to show that the reference to the Commissioner had been made by a health professional.
The applicant did not dispute that the existence of a current AVO raised mandatory grounds for revocation but said it was still his position that he wanted clarification on the jurisdictional issue under s 79. He also sought an adjournment pending the resolution of District Court appeals against certain orders of the Queanbeyan Local Court on 25 September. The application for an adjournment was refused.

[6]

Consideration

This tribunal has jurisdiction to entertain this application by reason of s 75(1)(c) of the Firearms Act, which creates a power to review a decision by the Commissioner revoking a licence or permit.
Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
Clear guidance as to how the act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. Section 11(4)(c) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's intemperate habits or being of unsound mind.
The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12].
The applicant, aged 50, has no criminal convictions and under previous legislation was authorized for firearms for over 10 years. He had held a category AB firearms licence as a primary producer continuously since 16 March 1998 until it was revoked. His firearms safe keeping provisions at his current address had twice been inspected and approved by police.
As was noted above, there is a history of the applicant traversing the land of his neighbour, Mr Joseph Mooney, as he claims that he has a legal right of way to such access. In recent years that exercise of access has given rise, directly or indirectly, to conflict between the applicant and Mr Mooney. The erection of fences and gates, and interference with, or removal, of them, has also been the source of contention between the two neighbours. Some of the incidents had come to the attention of the police, and some have resulted in actions in the courts.
One of these matters was a charge against the applicant for trespassing on enclosed lands in violation of the Inclosed Lands Protection Act 1901: Fisher v R [2019] NSWDC 297. In that case the applicant raised the defence that he had been using a public right-of-way. In the Goulburn District Court, Neilson DCJ held that there had been a right-of-way as claimed by the applicant since 1895 and that it appeared to be still in existence ([at 21)].
There was some question as to whether it might have been extinguished when the land was brought under the provisions of the Real Property Act 1900, but the prosecution had failed to produce the register itself, which would have shown conclusively whether the right-of-way was recorded on the title. As the prosecution had thus failed to discharge its burden of proof, the applicant was acquitted. In the course of his judgment, Neilson DCJ noted that Mr Mooney, for his part, had given evidence "that is, I am afraid to say, not to be believed" (at [46]).
On 12 September 2018, Goulburn Local Court issued a provisional apprehended personal violence order (APVO) to restrain the applicant from assaulting, threatening, stalking, harassing, etc., the protected person, Mr Joseph Mooney. That provisional order was extended several times. On 13 August 2019, the applicant was found guilty by Queanbeyan Local Court of an offence under s 118(2) of the Road Transport Act 2013 involving driving a motor vehicle in a manner that menaces another person. The matter was listed for sentence on 25 September 2019, on which date the Local Court, without imposing a conviction, made a two-year conditional release order.
Also on that date the Local Court made a final apprehended violence order in respect of the protected person, Mr Mooney. The order has an expiry date of 24 September 2021. The applicant has lodged an appeal against both the conditional release order and the apprehended violence order. The matter is due to come before the District Court on 9 March 2020. In the meantime, the APVO remains in force.
The respondent submitted that the decision to revoke the applicant's firearms licence should be affirmed on three grounds: 1. The applicant is subject to an interim apprehended violence order. 2. The applicant is not a fit and proper person to hold a firearms licence. 3. It is not in the public interest for the applicant to hold a firearms licence.

[7]

Effect of s 79

The applicant raised a preliminary point, however, in the nature of a demurrer or objection to jurisdiction based on s 79 of the Firearms Act.
On 22 November 2017, the respondent had written to the applicant a letter (exhibit R1, p 34) which stated in part: The Firearms Registry has received information which indicates that your ability to have continuous and responsible control over firearms may be impaired. Information received at the Firearms Registry indicates that you may have health problem related to drugs/alcohol/a mental disorder or illness. The Firearms Registry have received information indicating show signs [sic] of irrational behaviour, you have fixations, unable to comprehend or follow instructions and you have been known to have unpredictable outbursts. In order to assess your ability to hold a firearms licence and responsibly possess and use firearms, you are requested to provide a medical assessment to the Firearms Registry….
Section 79 of the Firearms Act provides as follows: 79 Disclosure by health professionals of certain information (1) If a health professional is of the opinion that a person to whom the health professional has been providing professional services may pose a threat to public safety (or a threat to the person's own safety) if in possession of a firearm, the health professional may inform the Commissioner of that opinion. (2) A health professional is not subject to any criminal or civil liability, including liability for breaching any duty of confidentiality, if the health professional informs the Commissioner in good faith of the health professional's opinion referred to in subsection (1). (3) In this section: health professional means any of the following persons: (a) a medical practitioner, psychologist, nurse or social worker, (b) a person who provides professional counselling services, (c) a person who is of such other class of health professional as may be prescribed by the regulations.
The applicant submits that the respondent may act on information received that relates to a licensee's health condition only if that information is provided by a person who is a health professional within the meaning of s 79(3). If not, the Commissioner has no standing to revoke a person's licence on health (including mental health) grounds. As in this case there was no evidence as to who had provided the information, the Commissioner's revocation of the applicant's licence was invalid, the applicant argued.
Acts of the Legislature are to be construed as a whole: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355. The Commissioner's obligation in s 11(4)(c) to refuse to issue (and, by reason of s 24(2)(a), the discretionary power to revoke) a licence is contingent only on the Commissioner's having "reasonable cause to believe" that the person is of "unsound mind" and does not require that the information giving rise to the belief be supplied by a health professional.
Also relevant is the fact that s 79 is headed "Disclosure by health professionals of certain information" and it is followed by a similar provision, s 79A, which is headed "Disclosure of certain information by club officials". Both provisions shield the relevant practitioner or club official from any civil or criminal liability, including liability for breach of any duty of patient confidentiality. They are contained in part 9 of the Firearms Act, which is headed "Miscellaneous provisions", not in part 2, which regulates the issuance and revocation of licences.
Section 79 is thus an ancillary provision intended to protect health professionals who supply the Commissioner with information concerning a person's physical or mental capacity to handle firearms safely from potential liability for breach of professional confidentiality requirements. It is not designed to establish a condition precedent to a valid exercise of the power to revoke a licence on mental health grounds. Acting on information from a source other than a health professional does not invalidate the Commissioner's exercise of the revocation power. Even if it did, there is no doubt that this tribunal has the power to review an invalid decision or a decision made without jurisdiction: Khan v Roads and Maritime Services [2018] NSWCATOD 128, [23] - [27].

[8]

The apprehended violence order

As was noted above, s 24(2)(a) of the Firearms Act provides that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. Section 11(5)(d) provides that a licence must not be issued to a person who "is subject to an apprehended violence order". An "apprehended violence order" is defined in s 4 as including "a final apprehended violence order under the Crimes (Domestic and Personal Violence) Act 2007".
The combined effect of those provisions is thus that the Commissioner, and by derivation the tribunal, have a discretionary power to revoke a licence if the holder is subject to an AVO. The test thus rests on the existence of simple and readily ascertainable objective facts and does not require any "satisfaction", "reasonable cause to believe", "opinion" or other qualitative state of mind, unlike some others subsections of s 11.
In this case, the applicant on 25 September 2019 was made subject to a final apprehended personal violence order which was issued expressly pursuant to the Crimes (Domestic and Personal Violence) Act 2007 and which is expressed to remain in force until 24 September 2021, with the protected person being named as Mr Mooney. The facts of the case thus clearly come within ss 24(2)(a) and 11(5)(c).
The phrase "may be revoked" in s 24(2) shows that the power is a discretionary one. Consideration was given to how the discretion should be exercised in Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, where Hennessy DP noted that, "There is no guidance on the legislation in relation to how these discretions should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act. Those principles and objects are set out in section 3…." They are overwhelmingly concerned with the protection of public safety.
It is therefore open to an applicant to endeavour to show, for example, that notwithstanding the existence of an AVO against him or her, he or she presents no realistic threat to public safety. In this case, however, the applicant adduced no evidence. He did file two affidavits at various times, but they were not relied upon. He made no submissions specifically on how the discretion should be exercised (see exhibit A2), and indeed appeared to accept that the existence of the AVO made revocation effectively mandatory. In those circumstances there is no basis on which the tribunal could exercise the revocation discretion in his favour. The revocation of his licence must therefore be affirmed on that basis.

At a glance

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Cited By (3)