This is an application by Mr William Foster seeking review of a decision by the Commissioner of Police, NSW Police Force (the Commissioner) under the Firearms Act 1996 (the Firearms Act) to revoke his category ABC firearms licence.
The decision to revoke the licence was made on the basis that Mr Foster has contravened provisions of the Firearms Act and that it was not in the public interest for Mr Foster to hold a firearms licence. The decision followed on from proceedings in the Narrabri Local Court in which Mr Foster pleaded guilty to the following charges, which were found proven:
1. possess unregistered firearm; and
2. use un-authorised firearm.
[2]
Background
Mr Foster runs a small property just outside of Narrabri. At one time, he had about 90 head of cattle on the property but, because of the drought, at the time of the hearing had only has about 35 cattle. Mr Foster was issued with a Category ABC firearms licence in December 2017 for the genuine reason of primary production. He had been authorised for many years to possess firearms under previous legislation and told the Tribunal that he has been shooting since he was a boy. Mr Foster has never been convicted of a criminal offence.
In the late afternoon on 28 January 2019 six young men from the area went to "Fourmile" stock route reserve, where they rode their trail bikes along the river. At some point they crossed the river and were riding in a dry creek bed which runs adjacent to Mr Foster's property. Mr Foster had been shooting vermin on his property. When he heard the sound of the bikes he believed the riders were trespassing upon his land. He drove his utility to the creek bank and rang his daughter and asked her to alert the police to the fact that there were trespassers on his land. Apparently, one of the bikes became bogged in sand and the group stopped to help the rider.
There are some discrepancies in the accounts of Mr Foster and the trail bike riders who gave statements to police about what happened next. There is no dispute, however, that Mr Foster, when he arrived at a point about 150 metres away from the riders, got out of his vehicle and fired a shot from his 0.410 calibre rifle. The riders believe the shot was aimed in their direction and one stated that he observed a splash and ripples in the river about five metres from where he was standing at the time. Mr Foster states he fired the shot into the air at an angle which, given his experience, he knew would mean the shot would not land near the riders. He said he fired the shot to gain the riders' attention. He also said the firearm was loaded with birdshot and therefore the riders' account of a bullet hitting the water was not true.
After firing the shot, Mr Foster got back in his utility and drove to the boundary fence. He got out of the vehicle with the rifle, which was pointed at the ground and challenged the bike riders about trespassing on his land. He also accused them of fence cutting. The group of riders responded with questions about who owned the river. Some of the riders claimed the rifle was cocked but Mr Foster states that it was no longer loaded as it had been discharged. After a short argument, the riders left and Mr Foster contacted police to report the alleged trespassing. The incident was also later reported to police by one of the riders. The riders later told police they thought Mr Foster was going to shoot at them again.
When police attended Mr Foster's property they issued him with a firearms suspension notice and confiscated firearms which he surrendered to them. Among them was an unregistered Ruger .22 calibre firearm model 10/22 with serial number 121-93141. Checks by police found the firearm to be unregistered. Mr Foster told police he had found the firearm in the rear of an old vehicle he had purchased years ago.
Mr Foster was then charged with various firearms offences. The offence of use unauthorised firearm was found proven without conviction and made subject to a 2-year conditional release order pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999. In relation to the offence of possess unregistered firearm, the offence was found proven and dismissed without penalty pursuant to s 10 of the Crimes (Sentencing Procedure) Act. A decision was then made by the Commissioner to revoke Mr Foster's category ABC firearms licence.
[3]
The application for review
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 confers jurisdiction on the Tribunal to review certain decisions including a decision to revoke a firearms licence.
In his application for review Mr Foster states that he is a primary producer and needs to access firearms for animal welfare. He also states that at no point did he point his firearm at the young men who were trespassing on his property and that inaccurate information had been provided about the unregistered firearm.
[4]
The relevant law
The underlying principles of the Firearms Act are:
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 7A(1) of the Firearms Act provides that a licence holder must not possess or use a firearm unless the person is authorised to do so by a licence or permit. Section 36(1) provides that a person must not supply, acquire, possess or use a firearm that is not registered.
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."
In relation to s 24(2)(a), s 11(5)(d) of the Act provides that the Commissioner must not issue a licence to a person who 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. Clause 5(2)(a) of the Firearms Regulation 2017 relevantly prescribes the following offences for the purposes of s 11(5)(d):
An offence relating to the possession or use of a firearm or any other weapon, or a firearm part or ammunition, committed under -
(i) the law of any Australian jurisdiction, or
(ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction).
For the purposes of s 24(2)(d), clause 20 of the Firearms Regulation 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."
The Commissioner has identified three grounds in support of his submissions that Mr Foster's licence should be revoked. These are:
1. because Mr Foster is subject to a conditional release order for a prescribed offence, he is a person for whom the Commissioner must refuse a licence (s 24(2)(a));
2. because Mr Foster has contravened both s 7A(1) of the Firearms Act by using a firearm for a purpose otherwise than in connection with the purpose established by the person as being the genuine reason for possessing or using the firearm and also s 36(1) by possessing a firearm that is not registered (s 24(2)(b)(ii)); and
3. as offences under the Firearms Act have been found proven against Mr Foster, it is not in the public interest for him to continue to hold a firearms licence (s 24(2)(d)).
[5]
The conditional release order
Under s 11(5)(d) of the Firearms Act it is mandatory for the Commissioner to refuse to issue a licence to a person who is subject to a good behaviour bond in relation to a prescribed offence. A reference in the Firearms Act to a good behaviour bond, is taken to include a reference to a community correction order or a conditional release order or both (see Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017).
As noted above, Mr Foster is subject to a 2-year conditional release order for the offence of use unauthorised firearm in breach of s 7A(1) of the Firearms Act. The charge against him under s 7A(1) was on the basis that firing a warning shot near the bike riders was inconsistent with the purpose for which Mr Foster was issued a firearms licence, namely primary production. By virtue of cl 20 of the Firearms Regulation, that offence is prescribed.
While it is mandatory that a licence be refused in circumstances where an applicant is subject to a good behaviour bond in relation to a prescribed offence, the Commissioner (and the Tribunal) has a discretion as to whether a licence should be revoked in these circumstances. The Tribunal has previously stated that it will only be in special or exceptional circumstances where the discretion is exercised in a way not to revoke the licence: Kalinic v The Commissioner of Police [2006] NSWADT 227; Hamshere v Commissioner of Police, NSW Police Force [2012] NSWADT 244.
[6]
Contravention of the Act
Two offences under the Act have been found proven against Mr Foster. It has been consistently stated that the legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences: Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7 at [117].
[7]
The 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].
[8]
Evidence
Mr Foster states that the only reason he discharged the firearm was to gain the attention of the bike riders and maintain a distance from them. He said he did not know he was doing anything unlawful and has never pointed or fired a gun at anyone. In an interview with police shortly after the incident, Mr Foster denied that firing a shot in the air was reckless. Mr Foster said he is very safety conscious and did not discharge the firearm unsafely. He points to his long period of usage of guns and his lack of criminal convictions as a testament to his good character. I note that the references he provided in support of his application for internal review speak highly of his integrity and credibility. At the hearing Mr Foster sought to convey that he in fact had fired the gun into the air as he did not want to leave the gun in the car with a bullet in it for safety reasons. This statement was at odds with his previous evidence given to police.
Mr Foster told me that he did not intend to threaten the riders by holding the gun while he spoke with them. He had told police, however, that his actions in getting out of the utility with the gun and holding it while he challenged the bike riders would have been intimidating. When questioned at the hearing he said that for safety reasons he could not have left the firearm unattended in the car.
Mr Foster gave some conflicting evidence in his submissions and at the hearing. He is clearly very upset and aggrieved by the charges made against him and loss of his firearms licence. He stated that he had pleaded guilty to the charge of using an unauthorised firearm because of the court costs and because he acted on the advice of his solicitor. The Commissioner points out that this would indicate Mr Foster has not accepted that he acted unlawfully. Mr Foster described himself to me at the hearing as the "victim", presumably as he sought to protect his land from trespassers.
In relation to the unregistered .22 calibre Ruger, Mr Foster has provided different accounts over time. At the time he surrendered his firearms to police, he told Detective Senior Constable Benjamin Nash that the firearm was his son's. In a later conversation with Detective Senior Constable Nash Mr Foster said that the firearm was illegal and he had found it in the rear of an old vehicle he had purchased years before. At the hearing he said that he had bought a vehicle from some people in Pilliga in about September 2017 and had found the gun in the car. He said he couldn't get onto the people from whom he bought the vehicle and tried to register the firearm in his name in an amnesty.
In his application for review Mr Foster stated that inaccurate information had been provided about the unregistered firearm. At the hearing and in his submissions he stated that he had attempted to register the Ruger but there had been an error at the Firearms Registry and a duplicate licence had been issued for one of his other firearms instead of a licence for the Ruger. He provided copies of the licences to support this statement. The Commissioner stated that there is no record of an application having been made by Mr Foster to register the Ruger or for a permit to acquire it. The Firearms Registry confirmed that the Ruger was not registered.
Mr Foster states that he needs his firearms licence primarily to control vermin on his property to protect its biosecurity and to deal with sick or injured animals. He said that since losing his licence his son has helped him occasionally and one time a neighbour shot some vermin for him.
[9]
Consideration
No convictions have been recorded against Mr Foster for contraventions of the Firearms Act. The Tribunal is, however, required to take into account matters indicating criminal conduct: Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31; Bevan v The Commissioner of Police, NSW Police Service [2004] NSWADT 1.
I accept that Mr Foster did not intend to harm the trail bike riders and did not aim or shoot at them. He was clearly aggrieved by their behaviour and his actions in calling the police attest to his belief that they were trespassing. The evidence of the bike riders that a bullet landed near them is difficult to accept given Mr Foster's consistent account of where he fired the shot. None of that, however, is an excuse for firing a firearm in order to draw attention to his presence and his actions in firing the gun had the potential to cause harm.
There are lingering doubts as to whether Mr Foster accepts that he was in the wrong in doing what he did. In any event, there is no doubt that his use of the firearm was unauthorised and a clear contravention of s 7A(1) of the Firearms Act. Of particular concern is that Mr Foster was not aware that firing his weapon in the circumstances in which he did so was not lawful.
Mr Foster's accounts relating to the unregistered .22 Ruger are difficult to reconcile and he has not provided any satisfactory answer about why his explanation that an error was made by the Registry was not raised in the court proceedings. He in fact pleaded guilty to possessing an unregistered firearm in contravention of s 36(1) of the Firearms Act. It would be expected that if he believed he had registered the firearm he or his solicitor would have gone to some lengths to demonstrate that to the court. Even if I were to accept that an error was made, the fact remains that the gun was unregistered and Mr Foster did not take any steps or review paperwork to verify that the firearm was correctly registered.
In relation to the conditional release order for a prescribed offence, as set out above, the discretion not to revoke a licence will only be exercised where there are special or exceptional circumstances. Mr Foster is subject to the order until 27 June 2021.
Mr Foster is a primary producer and that is the purpose for which his firearms licence was issued. As a primary producer he has a legitimate reason to possess and use firearms. The Tribunal has previously rejected submissions that protecting wildlife and the need to control vermin amount to special or exceptional circumstances: Kalinic; Parisi v Commissioner of Police, NSW Police Force [2018] NSWCATAD 155 at [22]. The simple fact of being a primary producer is not sufficient in and of itself to establish special or exceptional circumstances. Mr Foster can readily engage others, including his son, to euthanize animals or shoot vermin and feral animals on his property.
I am not satisfied that Mr Foster has demonstrated any special or exceptional circumstances that would mean I should exercise the discretion under s 24(2)(a) not to revoke the licence. Similarly, I am not satisfied that the discretion in s 24(2)(b)(ii) should be exercised in Mr Foster's favour. I am satisfied that he has contravened provisions of the Firearms Act. These were not merely technical breaches and demonstrated a lack of understanding on Mr Foster's part of the requirements of the legislation.
Mr Foster states that he has learnt his lesson and will never again use a firearm in the way he did. At the hearing he appeared genuinely shaken by the events and I accept that it is unlikely that he will again fire a shot from his firearm in similar circumstances. However, he has continued to downplay his actions and does not seem to recognise the seriousness nature of his non-compliance with the Firearms Act both in relation to his unauthorised use of a firearm and in not registering a firearm. In those circumstances, it is not in the public interest for Mr Foster to continue to hold a firearms licence at the present time.
For these reasons, the correct or preferable decision is to affirm the decision under review.
The conditional release order will expire on 27 June 2021 at which time Mr Foster can apply for a new licence. It may well be that at that time, absent any further incidents, Mr Foster will be able to demonstrate that the licence should be granted.
[10]
Order
1. The decision under review is 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
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Decision last updated: 05 May 2020