The applicant has held a category AB licence under the Firearms Act 1996 since 4 October 2016.
On 10 July 2017 the respondent suspended the applicant's licence after police attended an incident at his home. Subsequently, the licence was revoked by the respondent on 22 January 2018 under s 24(2) of the Firearms Act. The applicant did not apply for an internal review of the decision. On 26 February 2018 the applicant lodged an application for review of the decision of the respondent revoking the applicant's firearms licence.
The application was lodged purportedly pursuant to s 75(1)(c) of the Firearms Act after representations were made to the Commissioner on the applicant's behalf without success.
[2]
The legislative framework
The revocation of a licence or permit (other than a revocation on the basis that the holder of the licence or permit is subject to a firearms prohibition order or an apprehended violence order), is reviewable by this Tribunal under s75(1)(c) of the Firearms Act.
Section 12 of the Firearms Act provides:
12 Genuine reasons for having a licence(cf APMC 3, 1990 Reg cl 22A)
(1) The Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm.
(2) An applicant does not have a genuine reason for possessing or using a firearm if the applicant intends to possess or use the firearm for any of the following reasons:
(a) personal protection or the protection of any other person,
(b) the protection of property (other than in circumstances constituting a genuine reason as set out in the Table to this section).
(3) Subsection (2) does not limit the reasons which the Commissioner may be satisfied are not genuine reasons for the purposes of justifying the possession or use of a firearm.
(4) Subject to this Act, an applicant for a licence has a genuine reason for possessing or using a firearm if the applicant:
(a) states that he or she intends to possess or use the firearm for any one or more of the reasons set out in the Table to this section, and
(b) is able to produce evidence to the Commissioner that he or she satisfies the requirements specified in respect of any such reason.
Table
Reason: sport/target shooting
The applicant must be a current member of a shooting club approved by the Commissioner in accordance with the regulations, and which conducts competitions or activities requiring the use of the firearm for which the licence is sought.
Reason: recreational hunting/vermin control
The applicant must:
(a) be the owner or occupier of rural land, or
(b) produce proof of permission given by the owner or occupier of rural land, or by an officer or employee of the National Parks and Wildlife Service, the Department of Industry or other authority prescribed by the regulations, to shoot on rural land, or
(b1) produce proof of permission given by a land manager within the meaning of the Forestry Act 2012 to shoot on land in respect of which the land manager is authorised to exercise functions as land manager under that Act, or
(c) be a current member of a hunting club approved by the Commissioner in accordance with the regulations.
The regulations may provide for the manner and form in which any such permission is to be given, the extent to which it operates, and how it is to be produced as evidence by the applicant. A person does not, so long as the person is authorised to give permission to shoot on land referred to in paragraph (b) or (b1), incur any liability merely because the person gives the applicant permission to shoot on the land concerned.
…
Section 22 provides:
22 Suspension of licence(cf APMC 6, 1989 Act s 35)
(1) The Commissioner may, if the Commissioner is satisfied there may be grounds for revoking a licence, suspend the licence by serving personally or by post on the licensee a notice:
(a) stating that the licence is suspended and the reasons for suspending it, and
(b) requesting that the person provide the Commissioner with reasons why the licence should not be revoked.
(1A) If a licence is being suspended because the Commissioner is satisfied that there may be grounds for revoking the licence under section 11 (5A), the notice suspending the licence is not required:
(a) to state the reasons for the suspension, or
(b) to include any request that the licensee provide the Commissioner with reasons why the licence should not be revoked.
(2) The Commissioner must suspend a licence in accordance with this section if the Commissioner is aware that the licensee has been charged with a domestic violence offence within the meaning of the Crimes (Domestic and Personal Violence) Act 2007 or the Commissioner has reasonable cause to believe that the licensee has committed or has threatened to commit a domestic violence offence within the meaning of that Act.
(3) A suspended licence does not authorise the possession or use of firearms during the period specified in the notice suspending it.
Section 24 provides:
24 Revocation of licence(cf APMC 6, 1989 Act s 36, 1990 Reg cl 27)
(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.
At the time the applicant's licence was suspended the Firearms Regulation 2006 was in force. Clause 27 of that Regulation provided that a licence that is issued for the genuine reason of sport/target shooting is subject to the condition that the licensee must, as a current member of an approved shooting club, comply with cl 96 (1) (a) or (b).
Clause 29(1) provided that a licence that is issued for the genuine reason of recreational hunting/vermin control to a member of an approved hunting club is subject to the condition that the licensee must comply with cl 96 (1) (c), but only if membership of the club is the sole ground on which the licensee has established that genuine reason.
Clause 96(1) provided:
(1) A person's membership of an approved club is, if the person is the holder of a licence, subject to the following requirements:
(a) in the case of an approved pistol club - the person must, over each period of 12 months that the licence is in force:
(i) participate in at least 6 club organised competitive shooting matches, and
(ii) for each different kind of pistol that the person possesses for different shooting events, undertake at least 4 club organised shoots,
(b) in the case of any other approved shooting club - the person must, over any period of 12 months:
(i) participate in no less than 4 shooting competitions conducted by any approved shooting club, or
(ii) attend a shooting range, where any approved shooting club conducts shooting activities, on no less than 4 occasions over that period for shooting practice,
(c) in the case of an approved hunting club - the person must, over any period of 12 months, participate in no less than 2 events (approved by any approved hunting club) involving hunting, shooting or firearms safety training, but only if the licence is issued for the genuine reason of recreational hunting/vermin control and the person's membership of the club is the sole ground on which that genuine reason is established,
(d) in the case of any approved collectors' society or approved collectors' club - the person must attend the club's annual general meeting (or at least one other meeting over any period of 12 months).
Clause 96(4) provided:
(4) The failure of a person who is a member of an approved club to comply with the requirements under this clause is prescribed, for the purposes of section 24 (2) (d) of the Act, as a reason for which the Commissioner may revoke the person's licence. However, the licence is not to be revoked if the person proves, to the Commissioner's satisfaction, that compliance with the requirement was not reasonably practical in the circumstances.
Clause 14 provided:
14 Requirement to notify Commissioner if reason for possessing firearm ceases(cf 1997 cl 12)
(1) If a licensee's genuine reason for possessing or using a firearm under the authority of a licence can no longer be established by the licensee, the licensee must, within 14 days of ceasing to have that genuine reason, notify the Commissioner in writing of that fact.
Maximum penalty: 50 penalty units.
(2) If a permit holder's legitimate reason for possessing or using a firearm to which the permit relates can no longer be established by the holder, the permit holder must, within 14 days of ceasing to have that reason, notify the Commissioner in writing of that fact.
Maximum penalty: 50 penalty units.
(3) A reference in subclause (2) to a permit holder's legitimate reason for possessing or using a firearm includes a reference to the circumstances in respect of which the holder possesses or uses the firearm under the authority of the permit.
(4) A person does not commit an offence under this clause if the person demonstrates that he or she did not know, or could not reasonably be expected to have known, that the genuine reason, or legitimate reason, established by the person for possessing or using a firearm under the authority of the licence or permit had ceased to exist.
The role of the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it and in doing so, may exercise all of the functions that are conferred or imposed by the firearms legislation on the respondent (s 63 Administrative Decisions Review Act 1997 ("the ADR Act").
[3]
The evidence
The applicant gave evidence that he has never owned a firearm. He attended club shooting ranges to use firearms after he obtained his licence. He worked at various occupations in Newcastle in Sydney between 1994 and 2005. Between 2005 and 2011 he worked as an electrical fire protection and emergency system installer for Wormald, including in high security sites. He was presently employed as a transport driver for a national transport company.
The applicant denied that he used any form of illegal drug and there is no evidence to the contrary before the Tribunal. The applicant said his job requires mandatory drug and alcohol testing.
He had a relationship with a woman who I will refer to as SY from about 2014 but said they were never in a de facto relationship and they did not live together. He said that SY suffered from a mental condition and when she did not take her medication she became violent and threatened self-harm. He was aware that she used the drug known as ice but he said that he did not use it.
Senior Constable Heffron gave evidence that he attended the applicant's home on 31 October 2015 with Senior Constable Duncan in response to a VKG message. They met the applicant who reported an attempted break and enter. Later in the street they met two persons who said that they were there to get their friend SY and that SY had an outstanding warrant for her arrest. On returning to the residence the applicant denied that SY was in the house and gave permission for police to search the house.
SY was located in a bedroom and was arrested. Senior Constable Heffron said the search was not difficult and took only seconds.
He said on 31 October 2015 SY was at his house. She said that police were looking for her and they agreed they would go to the police station the next day. He said when police came to his house he impulsively told them she was not there but tried to indicate through facial expressions to the police officers that she was there, as he didn't want her to know that he was telling the police where she was. He allowed the police to search the house for her.
SY went to gaol in 2015 and he broke off the relationship when she broke her parole conditions after being released and went back to gaol.
On 10 July 2017 the respondent suspended the applicant's firearms licence following an incident where police attended the applicant's home.
Detective Senior Constable Baxter gave evidence that he attended the applicant's home in Raymond Terrace on 11 June 2017. He referred to a COPS entry concerning the incident which he had completed. That recorded that police were called to the address following "a 000 hangup call in which yelling was heard."
The triple 000 call recording was in evidence. There were two calls. On the first one a woman's voice could be heard, angry and distressed, and a man talking more calmly. On the second recording there was some conversation between the operator and a man and woman. The woman said "We want to be anonymous." The man said: "1 Sabre Avenue. It's her that's done it." The woman said: "I'm fine."
Detective Senior Constable Baxter said that when he arrived at the premises he observed blood flicked on the walls and on the applicant. He said that initially when asked what had occurred the applicant said "Nothing" but later said words to the effect: "She threw blood on me and the walls". It emerged that the applicant was referring to SY. SY was found to have self-inflicted injuries and was taken to hospital.
SY made some allegations concerning the use of the drug ice by the applicant. After checking previous COPS records Detective Senior Constable Baxter concluded that there were multiple domestic incidents involving the applicant and SY in which SY had been the aggressor. He said the applicant declined to provide a statement when asked and therefore no charges were pursued against SY. He suspended the applicant's firearms licence. He said that no action was taken on the drug allegation, as SY's evidence would require substantial corroboration given her criminal history.
The applicant gave evidence that in June 2017 SY telephoned him and asked if she could stay because she had nowhere to go. He reluctantly allowed her to do so because he felt sorry for her. She stayed for several days and attended hospital and received new medication. On 10 June 2017 they had an argument and SY took some pills and cut her left wrist with a razor blade. He said that he telephoned 000 but she began yelling and screaming and he said he was "forced to" hang up.
The applicant denied that he had said SY threw blood on him. She had been waving her arms around after she cut herself. He said that when he called the 000 line she ran into the kitchen and her behaviour would have been worse if she had known he was calling the police. At the time he was on the phone she was in front of him holding a razor blade and had swallowed 20 tablets. Nevertheless he did not want her to be charged, he just wanted her to get medical treatment. He said that one of the police officers had told him he would lose his firearms licence if he did not cooperate to have her charged with assault. He said he did not believe an AVO was necessary. He said he had not seen SY since that day and he was now in another relationship.
Senior Constable Heffron said he did not see the applicant's facial expressions. Mr Garder said he spoke to a female officer. That officer did not give evidence.
The applicant's application for a firearms licence gave "sport/target shooting" and "recreational hunting/vermin control" as the genuine reasons for his licence.
The licence application attached permission from an owner or occupier of rural land to shoot on the property, which is relevant to the "recreational hunting/vermin control" reason and the use of a category B firearm.
There was evidence that the applicant was a member of the Stockton Branch of the Sporting Shooters Association and had attended the shooting range at Cessnock.
He said that the Cessnock branch had cancelled permission for the Stockton branch members to attend their range and as a result he could no longer shoot there. He said he had attended the Cessnock range two or three times before this happened. He had never bought a firearm because of the expense of owning firearms and the necessary storage requirements.
The applicant agreed that he had not attended the shooting range 4 times in a year, as required by the regulation.
The s 58 documents contained previous COPS entries. These indicated that the applicant had called the police in early 2015 when he feared that SY would commit self harm. He also provided police with information about SY on 2 May 2015 when again it appeared she may have committed self harm. In July again the applicant called police and informed them she had been cutting herself and taken a number of tablets. The applicant cooperated with police in their investigation of SY in relation to breach of an Apprehended Violence Order and damage to property in August 2015.
The applicant is over 40 years of age and has not been convicted of a criminal offence in over 10 years. There was no evidence that he and SY are still in a relationship. The applicant said he was last contacted by SY in April 2018. She wanted to see him and he said that he told her that he had a new girlfriend and he didn't want to see her and that she needed help.
Police believed that the applicant was in a relationship with SY and the applicant was facilitating her drug addiction and concealing her offences. However they did not adduce any evidence of more recent contact.
[4]
Submissions of the parties
The respondent submitted that the applicant was uncooperative with police on two occasions. In addition, he had not complied with the statutory requirements for the genuine reason relating to his licence.
The applicant submitted that he did not pose a risk to the public as he did not own a firearm. He denied being dishonest when the police were searching for SY; he said he attempted to indicate to one of the officers where she was. In any event that incident predates the issuing of his firearms licence and the Tribunal should not place great weight on that incident. He only held a licence for 6 months in 2016-17 and for two months in 2017-18 before it was suspended. His explanation for not attending the range is reasonable. He was only starting out in the sport.
[5]
Consideration
The respondent relies on three grounds to justify the revocation.
[6]
(1) The applicant's failure to notify the Commissioner that he could no longer establish a genuine reason
In relation to this ground, it was not clear on the evidence when the applicant became aware that he could no longer attend the Cessnock range. However he had only held his licence for approximately eight months before it was suspended, so his opportunities to find another range were limited. Evidence indicated he had attended three times between 1 April 2016 and 31 March 2017. He did not obtain his licence until October 2016. Nevertheless, he breached the regulation by not informing the Commissioner of the situation.
[7]
(2) The applicant's non-compliance with cll 27, 29 and 96 of the Regulation
I am not satisfied that cl 29 was relevant to the applicant's case as his application showed that membership of a hunting club was not the sole ground for the genuine reason claimed.
In relation to cl 27 and cl 96, the applicant conceded that he had not complied with the Regulation, which required him to attend a shooting range on no less than four occasions over a 12 month period for shooting practice. As noted above, the applicant held his licence for approximately eight months and he attended three times between October 2016, when he obtained his licence, and 31 March 2017.
[8]
(3) That it is not in the public interest for the applicant to have a licence
In this regard the respondent relies upon evidence of the applicant's conduct. The first significant incident occurred on 31 October 2015. The evidence is undisputed that he allowed police to search the house, knowing that she was in the house. Whether or not he tried to indicate to police that she was present, he must have known that they would find her easily, which they did. The applicant says he lied to police impulsively knowing that she would hear what he was saying. I accept this. In 2015 the applicant was still in a relationship with SY.
The June 2017 incident does not indicate that the applicant lied to or misled police, in my view. He declined to make a statement in circumstances where his former partner was extremely unwell and had harmed herself. He gave the 000 operator the address although SY wanted to be anonymous.
In relation to grounds (1) and (2), while a licence may be revoked for these reasons, in my view those reasons do not justify a revocation in this case, given the circumstances, the fact that the applicant does not own a firearm and the short period for which the licence was held. As stated in Yaghi v Commissioner of Police, New South Wales Police Service [2001] NSWADT 91, not all contraventions or breaches warrant the exercise of the power to revoke.
In relation to ground (3), in determining whether it is in the public interest for the applicant to have a firearms licence, the principles and objects of the Firearms Act are relevant (Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43 at [37]. The principles 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.
In considering public safety, this Tribunal has said:
"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."
Ward v Commissioner of Police [2000] NSWADT 28 at [28].
The main factor which relates to public safety and the public interest in my view, is whether there is any risk of incidents involving the applicant and SY in which possession of or access to a firearm could pose a risk to safety. In Tolley v Commissioner of Police, NSW Police Force [2006] NSWADT 149 at [31] Fitzgerald JM stated:
"Given the breadth of the Commissioner's discretion and the overriding object of public safety there is no basis for distinguishing between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence."
There is evidence that SY obtained access to knives when at the applicant's property. Given SY's propensity for drug taking, criminal activity and self-harm, access to a firearm would pose a risk to safety. The applicant says he does not own a firearm, but a firearms licence authorises possession and use of a firearm. The applicant says there is no risk of such an incident because he is no longer in a relationship with her; the respondent disagrees. The most recent occasion on which there is evidence of SY being in the company of the applicant was June 2017; the most recent occasion on which SY contacted the applicant and tried to see him, according to the applicant, was April 2018.
[9]
Conclusions
In my view the evidence indicates that there is still a risk to safety posed by the relationship, even if the applicant regards it as over. Unfortunately for the applicant, more time in which there is no contact with SY is required to place him in a position where it can be said there is virtually no risk. I would not rule out that he could be issued with a licence when some further time has passed.
The Tribunal may determine a matter where there has been no internal review under s 55(4) of the ADR Act and the applicant was entitled to an internal review, if the Tribunal is satisfied that it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned.
The original decision was made on 22 January 2018. This application was lodged on 26 February 2018, which is a reasonable time. The time for making an internal review has passed. The parties indicated they had no objection to me determining the matter and making an order pursuant to s 55(4) and being satisfied as to the matters above, I believe such an order is appropriate.
[10]
Orders
The Tribunal orders that:
1. The application be dealt with in the absence of an internal review under s 55(4)(b) of the Administrative Decisions Review Act 1997.
2. The decision under review is affirmed.
[11]
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: 29 August 2018