Foerster v Commissioner of Police, NSW Police Force [2025] NSWCATAD 250;

1. The Applicant submits the correct and preferable decision is to remove the condition on his Licence. His grounds for this review include the following:

(a) That NMF only lived with him temporarily, and has lived elsewhere since 28 February 2025.

(b) That NMF was found not guilty of the charge on 1 May 2025, at which time the AVO was lifted and that he has no criminal record, and therefore cannot be considered a risk to public safety.

(c) That his gun safe was inspected by Wollongong Licence Police on 6 February 2025 and deemed as meeting safe installation requirements.

(d) That NMF has no access or security fob to the Applicant's residence, and no longer visits the Applicant and/or his wife at their residence.

(e) That the safe key is hidden and the firing pin is stored in a secret location outside his residence therefore rendering the firearm non-operational.

(f) His personal firm belief that NMF has never been a risk to the Applicant's or his wife's personal safety nor that of the wider community.

(g) That the reasons for the imposition of the condition were understandable at the time the Decision was made, but those reasons are no longer relevant or applicable.

(h) That NMF's counsellor and employer both support this position.

1. At the hearing, the Applicant submitted that NMF could not access his residence, or his safe under any circumstances, and that the firing pin being stored off premises offset any risk completely.
2. The Applicant acknowledged that NMF was of intimidating size and appearance, but had never been violent or threatening to the Applicant or his wife.
3. The Applicant further acknowledged that NMF has a substantial history of mental health issues and diagnosis, and that when he is off his medical regime, and engaging in excessive alcohol consumption, his behaviour and condition deteriorate.
4. The Applicant submitted that he and his wife are no longer willing to allow NMF access to their residence under any circumstances, not even for a social purpose or in a crisis.

1. The Respondents submitted that they have made the correct and preferable decision in the circumstances, and that their decision to retain the condition on the Licence should be affirmed by the Tribunal, for the reasons briefly outlined as follows:

(a) Whilst NMF was found not guilty of the offence with which he was charged on 1 May 2025, the magistrate expressed reservations regarding NMF's version of the events.

(b) In his interview with police, NMF admitted to suicide ideation, and admitted that he had not been taking his medication and had been drinking to excess. Notwithstanding the not guilty verdict, these issues remain a concern to the Respondent.

(c) NMF further expressed knowledge of the Applicant's firearm, its location and his involvement in installing the gun safe.

(d) Whilst NMF does not have a key to the Applicant's residence, he lives in a proximal location and the Applicant is clearly supportive of him. Accordingly, there remains a concern that NMF could apply pressure or force to the Applicant in order to access the firearm.

(e) Whilst it is acknowledged that this condition creates an inconvenience for the Applicant in arranging alternative storage, the condition is targeted and proportionate in terms of the attenuating risk.

(f) The Respondent further relied on the content of the Confidential Bundle.

1. The Respondent submitted that they exercised their discretion in accordance with the statutory objects of the Act, notably to advance public safety above individual inconvenience.

1. It is a fact that the Applicant has an unblemished record in his history of gun ownership. He has no criminal convictions, and his integrity and regard for the law have not been brought into question.
2. What is at issue in these proceedings is whether it is in the public interest for the Applicant to continue to have a special condition on his Licence that his firearm be stored at premises other than his residence. The principal issue in determining public safety is whether there is a risk to the safety of the public if the Applicant is permitted to keep his firearm at his residence.
3. The Respondent submits that the special condition must remain in place on the Applicant's Licence due to the possibility that NMF may access the firearm.
4. It was acknowledged by the Applicant, that NMF has a significant history of mental health issues, and that, from time to time, he ceases taking his medication and engages in excessive alcohol intake.
5. The Applicant asserted that NMF has never been violent, and, in any case, believes there is no risk of NMF accessing a firearm at the Applicant's residence as (i) the firing pin is kept separately off premises at a secret location, and the firearm is therefore useless without it (ii) NMF no longer resides with the Applicant and has no key or way of accessing the Applicant's residence (iii) the Applicant's residence is protected by significant security (iv) the Applicant's firearm would be stored in a locked safe, which NMF cannot access; and (v) the Applicant and his wife submit that they are no longer willing to allow NMF entry to their residence under any circumstances.
6. The Respondent submitted that despite the fact that NMF was not convicted of the charge, the nature of the relationship between NMF and the Applicant, means there is a residual risk that NMF could access the Applicant's firearm at some time in the future.
7. The concept of the "public interest" has been considered in numerous matters before this Tribunal. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) ALR 657, it was noted at [681] that "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."
8. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 and [25] the Appeal Panel found that 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".
9. In Cusumano v Commissioner of Police [2001] NSWADT 50, it was noted at [23]: "There is no guidance in 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" Act.
10. Key to the balancing of these considerations is the emphasis in s 3 of the Act which emphasises that firearm possession and use is a privilege which is conditional on the overriding need to ensure public safety. Therefore, it is ultimately the community's interests which take precedence over the private interests of an individual.
11. In Ward v Commissioner of Police [2000] NSWADT 28 (Ward) at [28], Deputy President Hennessy noted that "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."
12. The Respondent submitted that during the course of his interview with the police, NMF admitted to suicide ideation over the previous twelve months. In this regard, I note Rosenboom v Commissioner of Police [2006] NSWADT 10 where the applicant left a firearm unattended for a brief time, and his son used it to commit suicide. As per [10] "Mr Rosenboom's inadvertence was momentary and the results, tragic."
13. In determining the risk involved in these particular proceedings, there is an Applicant who is demonstrably responsible and committed to, and compliant with, his firearm storage obligations. However, it is acknowledged that his son, NMF, has had recurring mental health struggles for at least twenty years, and the Applicant and his wife have been compassionate, involved and supportive parents throughout.
14. The Applicant submits that neither he nor his wife will ever allow their son entry into their residence again, and he is simply unable to access their home in their absence.
15. I accept the evidence submitted by the Applicant and his building manager, that the residence has significant security access barriers, and that NMF cannot easily gain access to the premises in his parents' absence.
16. However, I do not accept the submission that the Applicant and/or his wife, will never again allow their son entry to their residence. This is altogether unrealistic and unlikely in the context of what compellingly appears to be a functioning and loving relationship existing between the Applicant, his wife and their son.
17. The Applicant has submitted that he uses the firearm recreationally and only intermittently, with specific individuals who also hold firearms licences. When questioned why the Applicant could not store his firearm with one of those individuals, the Applicant only responded that he did not consider this a fair request of those individuals.
18. The Tribunal appreciates the additional expense and inconvenience caused to the Applicant by the continuing imposition of the special condition. However, this must be weighed against the fact that the Applicant and his wife have a long history of supporting their son through his mental health episodes, and the risks which attach thereto.
19. Further, whilst the Applicant submits that NMF has never behaved violently or coercively towards them, the disparity in their size, age and physical prowess means that NMF could potentially overpower and/or force access to the Applicant's gun safe at some time in the future.
20. Whilst I acknowledge the Applicant's submission that the firing pin is kept in a secret location off premises, sufficient damage or consequences can still attach to brandishing a non-operational firearm, and I understand that a replacement firing pin is obtainable in any case.
21. In order to honour the principles of the Act and ensure the public interest is properly and sensibly served, I must apply the test in Ward and be satisfied that there is virtually no risk in removing the special condition on the Applicant's Licence.
22. In order to find that there is 'virtually no risk', consideration needs to be given to factors including the magistrate's difficulty in accepting NMF's version of the events despite the not guilty verdict, NMF's prolonged suicide ideation, his propensity to drink excessive alcohol when off his medication, and his knowledge of the location of the Applicant's firearm.
23. On the evidence before me, I am satisfied that there remains a low, but not insignificant, risk, despite the Applicant's security measures and undertakings, that NMF may be present in his parents' residence in the future, and may be able to access a firearm if one is stored there. The material provided within the Confidential Bundle further bolsters, but is not integral to, this conclusion.
24. In the circumstances, I consider that the imposition of the special condition is somewhat inconvenient for the Applicant but not unfairly prohibitive, and represents an appropriately tempered measure in response to the perceived risk.
25. It follows that the Commissioner's decision to decline to remove the special condition should be affirmed.

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.