The Applicant has held a firearms licence, for many years, even preceding the introduction of the Firearms Act 1996 (the Act). His most recent licence was to expire in 2025. On 25 December 2022 the Respondent decided to suspend the licence and, on 10 May 2023, to revoke the licence. That decision was affirmed on internal review. The Applicant now seeks review by this Tribunal. Although his application for review was filed out of time, the Respondent did not take issue with the late filing, and I granted the extension of time: s 41 CAT Act.
[2]
Relevant legislation
The general principles and objects of the Act are set out in s 3:
3 Principles and objects of Act
(1) The underlying principles of this Act are:
(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and
(b) to improve public safety:
(i) by imposing strict controls on the possession and use of firearms, and
(ii) by promoting the safe and responsible storage and use of firearms, and
(c) to facilitate a national approach to the control of firearms.
(2) The objects of this Act are as follows:
(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,
(b) to establish an integrated licensing and registration scheme for all firearms,
(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,
(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,
(e) to ensure that firearms are stored and conveyed in a safe and secure manner,
(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.
Section 24(2)(a) of the 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. The Act, in setting out restrictions on the issue of licences, provides, relevantly, at s 11(5):
...
(4) ... 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
...
Section 24(2)(b)(i) of the Act provides that a licence may be revoked if the licensee 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.
Section 24(2)(d) of the Act prescribes that a licence may be revoked for any other reason prescribed by the Regulation. Clause 20 of the Regulation prescribes that 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.
[3]
The Respondent's contentions and relevant legal principles
The Respondent submitted that there is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of his way of living or domestic circumstances, in particular in relation to the Applicant's son, T.
In LY v Commissioner of Police, NSW Police [2004] NSWADT 115 at [41] - [43], the Tribunal held that the Commissioner, and hence the Tribunal on review, must objectively be satisfied, from established facts, of the matters set out in s 11(4)(a) of the Act, that is, whether the Applicant's domestic circumstances are such that he may not personally exercise continuous and responsible control over his firearms. Domestic violence is clearly at the heart of s 11(4)(a) of the Act, and the Tribunal has considered many times circumstances where the licence holder is not the perpetrator of the domestic violence: see for example, Mekhitarian v Commissioner of Police [2022] NSWCATAD 198 and Lee v Commissioner of Police [2020] NSWCATAD 144 (Lee).
The Respondent also contended that it is not in the public interest for the Applicant to hold a firearms licence: s 24(2)(d) of the Act and cl 20 of the Regulation. "Public interest" is not expressly defined in the Act or Regulation. 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 Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in deciding whether to exercise a discretion adversely to an individual. A decision in relation to the public interest in this context is particularly informed by the underlying principles and objects of the Act and the strict controls under the Act in relation to licensing.
The underlying principles stated in s 3(1) of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety and it is public safety which is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 (Hill) at [24]. Strict controls on the possession and use of firearms are imposed in the interests of public safety; the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Lee v Commissioner of Police [2020] NSWCATAD 144 at [94].
The Tribunal has referred many times to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) where Hennessy DP at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, 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]. The principle in Ward is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce risk to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36] and AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].
The Respondent also pointed to the Applicant's failure in 3 renewal applications to correctly record that he had had his licence suspended or revoked.
The success of the licensing regime is dependent on licensees providing a full and frank disclosure in their communications with the Registry: Weckert v Commissioner of Police, NSW Police Force [2011] NSWADT 197. Those who have not done so, despite posing no other risk, may nevertheless fail the 'public interest' test as their conduct threatens the success and integrity of the licensing regime. The seriousness of deliberate failures in this regard is reflected in the offence in s 70 of the Act which provides that a person must not, or in connection with an application under the Act, make a statement or provide information that the person knows is false or misleading with a material matter. Contravention of this section could incur a punishment by imprisonment of up to 5 years. The Tribunal has pointed out that the operation of the legislative scheme depends on applicants providing true information: Leatham V Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 121, [18]; Keys v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 91 at [104].
[4]
Evidence
The Applicant provided:
1. Court result for the ADVO dated 1 September 2023 and Court result in relation to T's charge of assault occasioning actual bodily harm dated 1 September 2023
2. A statement dated 4 September 2023
3. Legal advice from University of Newcastle dated 15 August 2023 (with respect to which legal professional privilege was waived)
4. Two Medical certificates from Grace Medical Centre dated 29 August 2023
5. Email confirmation of a NSW Police Force Complaint Form dated 22 November 2023
6. An email from Laurence Mullen, Senior Biosecurity Officer, Hunter Local Land Services, regarding the Applicant's participation of the Wild Dog Control Group dated 15 August 2023
7. A copy of T's driver's licence
8. A copy of a Centrelink rent certificate with respect to S
The Applicant gave evidence and was cross examined, as was his wife.
The Respondent provided material in accordance with s 58 of the Administrative Decisions Review Act 1997 (ADR Act), and later, supplementary material.
The Respondent relied on the statements of Senior Constable Christopher Neil Houston dated 18 January 2024 and Constable Layne Foster dated 1 February 2024. Both were called to give evidence. Material filed by the Respondent included body worn video (BWV) recordings made when Police attended the Applicant's home on 22 December 2022 and a Domestic Violence Evidence in Chief (DVEC) Statement from P. The BWV and DVEC evidence were played during the course of the hearing.
The Respondent also relied on a 000 recording dated 10 December 2023 when the Applicant sought Police assistance with respect to an altercation between T and his ex-partner at the family home. This also was played in the course of the hearing.
The Respondent also relied on evidence produced during a confidential hearing. I do not propose to discuss in open Reasons any material that was presented on a confidential basis. Those parts of the Reasons that are not to be disclosed are identified as "[Not for publication]", and Orders are made accordingly: s 64 of CAT Act.
[5]
Tribunal's approach
Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34].
[6]
What precipitated the revocation of the Applicant's licence?
[7]
Events in December 2022
The Applicant and his wife are the parents of 3 adult children - their sons P and T, and daughter, S.
The Applicant gave evidence that he and his wife live at a [specified] address on the Central Coast (the family home). On 24 December 2022, the Applicant's family, except S, gathered there for Christmas, P having driven with his wife and young family from Queensland. Police were called to the family home at about 8.20pm by the Applicant's wife regarding an altercation between T and P. When Police arrived T told them he was drunk and he was observed to be unsteady on his feet and his speech was slurred. P admitted that he was also intoxicated, but not to the same extent as T. On the BWV T was largely incoherent, whereas P was more articulate. The Applicant said that both his sons were intoxicated but denied that he also was intoxicated - he had not had a drink since lunchtime.
During the DVEC, P told Police he and T had had a few drinks during the day and later T became aggressive due to his level of intoxication and displayed "aggressive body language". P told Police that T had been muttering, swearing and displaying violent behaviour which made P's young son scared; the boy started screaming "He's scaring me, he's scaring me". As a result, P told T to leave and then attempted to physically remove him from the house. P told Police that T began "grabbing, pushing, fighting" before a fight broke out between them. P admitted that he put T to the floor because he wanted him gone from the house due to his violent behaviour. P said "It's happened before too, and it happened to [his parents], and they're too scared to get rid of him." In his evidence the Applicant said that he was holding both P and T by the hands to attempt to prevent them from fighting. He said that T and P did not actually punch one another because he had intervened. He said that P was attempting to get T outside of the house and that T "was acting erratic''.
He said there was a lot of pushing and shoving and when the Applicant tried to intervene in the scuffle he, P and T fell to the floor in the kitchen. P tried to get his father out of the fight as P thought he was scared, as well as being "old". P said that T continued to strike at him while on the ground and that T punched him in the eye, face, and arm. Police observed him to have a scratch on the inside of his right bicep, and that his left eye was puffy.
In contrast, T told Police that P had hit him on the head. The Applicant's wife did not observe who threw the first punch. The Applicant also was unsure whether P or T had pushed the other first.
The Applicant's wife said in her evidence that she was afraid the incident would escalate and that is why she had called the Police. She thought T had thrown plates in the kitchen. Three or four times in the past he had thrown things around, once tipping up a table. The Applicant and his wife told Police that verbal and physically aggressive behaviour by T was a regular occurrence and that they could not control his behaviour when intoxicated. P described T to Police as "troubled". The Applicant's wife evidence was that she never expected T would hurt anyone; he was just angry because P was telling him not to drink any more alcohol. P told Police that T was violent and dangerous, and he had been to gaol before (although there was no evidence available to me about this). P said that T has a problem with alcohol and when it is taken away from him, he reacts violently. P said he was more concerned about his parents with T's behaviour. P said this incident was nothing new; T had previous incidents of violence including involving his ex-partner.
When Police spoke to the Applicant's wife she told them that T drinks a lot, and he then gets out of control. She said that T had also been violent the previous night. When Police spoke with the Applicant he said that he has had a lot of trouble with T's behaviour, and that they had previously attempted to get T into rehabilitation.
T was charged with assault occasioning actual bodily harm to P in relation to the incident. A provisional Apprehended Domestic Violence Order (ADVO) was taken out by Police against him, naming P as the person in need of protection. The charges did not proceed. As a result of the events of the evening, the Applicant's firearms were seized and his licence was suspended, and eventually revoked.
[8]
Previous domestic incidents
Police had previously responded to domestic violence incidents between the Applicant's family members on several occasions between 2012 and 2022.
There was an altercation between the Applicant and P in 2012 which led to the Applicant's firearms being temporarily seized.
In November 2014 the Applicant's wife contacted Police in relation to T's behaviour. He was threatening self-harm and was causing damage to property. He had reportedly used cannabis which caused him to become depressed, violent and irrational. An Apprehended Violence Order was taken out against T with the Applicant, his wife and S named as persons in need of protection. T agreed to attend a mental health facility for treatment. The Applicant's wife said in her evidence that T had previously been severely depressed when he was in Year 11 at school. She said that they had taken him to a psychologist in 2014 and again about a year ago. She was confident T no longer uses cannabis.
In July 2016, when S and T both lived at the family home, S complained to Police that when T was intoxicated he had threatened to kill her and her pets. In June 2021 S did not want T coming into the family home (where she was living at the time) to collect his belongings because she was scared of him and she called the Police. Shortly after, T moved to Queensland. The Applicant told Police that S had mental health issues.
In June 2017 T called Police, alleging he had been assaulted by P. He sustained a bleeding nose and slight bruising to his face. P also appeared to have sustained some facial injuries. T was considered by Police to be intoxicated, whereas P was less affected. T reportedly suffered from anxiety and depression. The Applicant and his wife reportedly told Police that P and T had been drinking together but an argument had ensued when P told T that he had had enough to drink. P and T provided conflicting versions to Police about who threw the first punch. No action was taken against either brother.
According to Police records T and his ex-partner had been in a relationship since about November 2016; Police first responded to complaints of verbal arguments between them in October 2017. Further complaints were made in July 2019, August 2019, January 2020, 27 March 2020, and July 2020. On 8 December 2020, Police responded to a domestic violence incident which occurred between T and his then partner. Further complaints were made in April 2021 and April 2022.
In February 2022 a Queensland Protection Order (Queensland Order) was issued against T with his ex-partner as the aggrieved person. The Queensland Order is in place until September 2026.
[9]
Subsequent domestic events
On 6 March 2023, Police responded to a domestic violence episode between T and his then girlfriend but no further action was taken.
On 10 December 2023, Police attended the family home regarding reports of a domestic violence episode; the Applicant had called Police in respect of T's ex-partner attending the family home to pick up their child. The Applicant explained that T's ex-partner came to the family home very early one morning to collect the child. She went straight to T's bedroom where T was in bed with his new partner, which enraged her. From then on, she has denied T access to their child.
[10]
Evidence in relation to T
The Applicant described T's mental health issues as a "cry for help" which had "come to the fore" with the breakdown of his relationship. However, the evidence was that T had been admitted to the Wyong Mental Health Facility in 2014 after he threatened self-harm, which was well-before the relationship.
The Applicant conceded that his statement seen on the BWV that they had had "lots of trouble with T" was accurate. He said T had ADHD and had struggled at school. He had joined the RAAF but was medically discharged, for unspecified reasons before me. They had tried to get him into rehab but he refused to continue after initially participating. The Applicant's wife thought he had pulled out because he wanted to work. He had received minor help through DVA from which he receives a very modest pension. The Applicant conceded in cross examination that T continues to experience "peaks and troughs"; the troughs are triggered by issues related to access to his child. Both the Applicant and his wife thought T may be getting ongoing assistance through "Open Arms".
The Applicant gave evidence that T's problems with alcohol were largely because of his troubled relationship with his ex-partner. The Applicant said that the relationship had always been problematic and that T had been about to break it off when his partner became pregnant with their child. The Applicant said T tried to hold the relationship together, even after they had separated. He said that he and his wife were glad when they finally broke up because they considered T's ex-partner to be very bad for him. The Applicant said that T "got very down" when the relationship finally ended and he had been "deeply affected". T's ex-partner has been very argumentative and, the Applicant believes, deliberately makes life difficult for T with respect to their child. She would yell at T, and the Applicant said, T would yell back. Whereas T and his ex-partner had initially had an amicable 50/50 care arrangement, when she learned T had a new partner, she refused him access to their child altogether, the Applicant believes, out of jealousy. The Applicant said that he did not believe T had ever been physically aggressive towards his ex-partner but T had told him his ex-partner had assaulted him with a broom.
The Applicant's wife said that, up until about a year ago T would spend a lot of time drinking on his own - about 10 cans at a time, 2-3 times a week. He was getting more and more depressed and saying he did not want to live; he was upset about not seeing as much of his child. On one occasion he called an ambulance. In the last year, the Applicant said, T had undergone an "amazing improvement" which the Applicant attributed largely to the influence of his new partner. The Applicant's wife had also observed a remarkable turnaround. The Applicant's evidence was that T has recently been more calm in relation to issues with his ex-partner about access to his child. He is now working and building up a mowing business.
The Applicant's evidence, was that T has no interest in firearms.
The evidence of the Applicant's wife was that T has significantly reduced his drinking and does not drink at his parents' home at all. She said she ensures there is limited alcohol at the family home when T is coming. Previously when she would try to take alcohol away from him he would get angry with her.
The Applicant's wife said that she thought T needs counselling. Although he is a lot better since he has re-partnered, it is "early days", they having only been together for about 3 months.
[11]
What are the Applicant's current domestic circumstances?
The Applicant's family grew up at the family home. Currently only he and his wife live there; however all of their children are welcome there.
S has not lived at the family home for at least 2 years. Because she did not get on with T, she would avoid the family home while T was there. She only attended about every 3-4 months. After some issues with drugs and alcohol, she is now studying in Queensland, having moved there only recently. The Applicant believed S and T were repairing their relationship and they no longer clash as they used to, although this may be a product of their geographical separation.
P lives in Queensland with his wife and young family. The Applicant and his wife regularly go to visit P and his family.
P and T had longstanding brotherly rivalry but the Applicant gave evidence that they both had learned something from the altercation at Christmas 2022 and that what had occurred was "ridiculous and silly". Again, I observe that they are geographically separated.
Both the Applicant and his wife gave evidence that up until about 3 months ago T lived at the family home following separation from his ex-partner about 18 months ago. T would stay there so that his daughter could be accommodated when she was with him under the informal 50/50 access agreement he had with his ex-partner.
T now lives with his present partner, also on the Central Coast, about 40 minutes drive from the family home, which he visits once or twice a week. He might mow the lawn or even stay for a meal or overnight, especially if his partner is working night shift. The Applicant and his wife said they would again offer their home for T to accommodate his daughter when the present custody dispute is determined. The Applicant denied that he and T clash, unlike the relationship T has with his siblings.
The Applicant also owns a rural property of about 200 acres about 200 kms from the family home. Up until fairly recently the property was tenanted but the tenant caused extensive damage and, as a result, was evicted. The Applicant may consider selling the property and buying a smaller property. He and his wife go there monthly. P has only been there 3 times in 10 years. In recent times T has been there about twice with a friend, as well as, occasionally, with his parents. The Applicant never took firearms there when T was there, as he was there to work - especially helping his father repair the damage caused by the tenant.
The Applicant said that wild dogs have attacked his cattle on the property. The evidence of Mr Mullen was that the Applicant is an active member of the Wild Dog Control Group and, in that capacity, requires firearms to undertake the "crucial role" of controlling wild dogs in the area.
The Applicant's firearms are stored at the family home. The safe is in a cupboard and the cupboard is padlocked. The Applicant understands T does not know where the keys to the cupboard or the safe are hidden. In any event, T has never attempted to access his father's firearms. Even the Applicant's wife said she does not know where the key to the safe is or what firearms it contains.
After the hearing the Applicant wrote to the Tribunal with a proposal that, to further safeguard his firearms from access by T, he adds two additional security locks, each with a different combination, instead of keys. The Respondent was invited to comment on the proposal, but said the proposal did not address the Respondent's concerns.
[12]
Confidential material
[Not for publication]
[Not for publication]
[13]
Conclusion in relation to the Applicant's domestic circumstances
There was no contention that the Applicant is not a fit and proper person to hold a firearms licence, nor was there any dispute that he has no criminal history; there is no suggestion that he has ever misused firearms nor that he has ever threatened to do so. Similarly, in the many years the Applicant has held a firearms licence he only personally came to adverse attention in 2008 when he overlooked renewing his gun club membership, and again in 2012 after the domestic incident with P, following which his firearms were returned to him.
The concern, however, is, not about the Applicant, but about the conduct of his son, T, and to a much lesser extent, his daughter, S.
At the hearing the Respondent made no submissions in relation to S. The concern about S, it seems to me, has largely dissipated. While she had a troubled past, there was no evidence that she has current alcohol or drug issues, and her commitment to further studies might suggest this is no longer of concern. Furthermore, she now resides in Queensland.
The evidence in relation to T, now aged 30, is more problematic. There was no evidence that he has ever held a firearms licence, and on the Applicant's unchallenged evidence, apparently has no interest in accessing the Applicant's firearms. Consistent with that assertion, he has lived in the family home for many years and, in that time, notwithstanding his mental health issues dating back now 10 years, his alcohol abuse and his domestic violence incidents, he has, on the evidence, never sought access to his father's firearms. The evidence was that T does not know where they were stored. On the evidence, he is in a relatively new relationship and is attempting to build up a mowing business.
I accept however that there is general concern in the community about firearms in homes and the potential for domestic violence incidents to involve firearms: Grenfell v Commissioner of Police [2021] NSWCATAD 124 at [103]; Hariri v Commissioner of Police [2022] NSWCATAD 5 at [60]. In Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149 at [31] (Tolley) the Tribunal observed that given the breadth of the discretion and the overriding object of public safety, there is no basis for differentiating between conduct of an applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence. Consequently, the conduct of T is a relevant factor in determining whether the Applicant may personally exercise continuous and responsible control over firearms: see also Emery v Commissioner of Police [2022] NSWCATAD 122 (Emery).
In Tolley, however, the applicant's son had been charged with supplying commercial quantities of drugs and other offences and the concern of Police was that the son may put pressure on his father to access his firearms. Similarly, in Ryan v Commissioner of Police [2021] NSWCATAD 23 (Ryan) the applicant's long-term partner had been the subject of a number of Police reports concerning a variety of serious offences, and at the time the applicant's firearms licence was revoked, was subject to a Community Correction Order. There I found that there was reasonable cause to believe that the applicant's partner may take advantage of their domestic circumstances and therefore the applicant may not personally exercise continuous and responsible control over her firearm. In both Tolley and Ryan the concerns had at their core the pressure that might be applied to the applicant in relation to access to firearms by a close family member with a criminal history. Here, though, there was no evidence whatsoever of any coercive conduct by T towards the Applicant. See also Salameh v Commissioner of Police, NSW Police Force [2023] NSWCATAD 148.
There is evidence that T has been the subject of a number of complaints for domestic violence issues. With the exception of the alcohol-fuelled altercation with P on Christmas Eve 2022 when P received a scratch and a puffy eye, there was no evidence that any of the complaints about his conduct involved any actual injury to another person. He does though, have a record of threatening self-harm, a history of mental health problems and of causing damage to property.
The evidence of the Applicant's wife was that T had mental health issues from the time he was in senior high school. The evidence was of Police being called in relation to his conduct from as early as November 2014. He appears to have taken up with his now ex-partner in late 2016. The Applicant contends that T's mental health problems "came to the fore" with the breakdown of his relationship with his ex-partner, particularly in their ongoing dispute about custody of their child, but this is not consistent with the evidence. I accept that T's condition may have deteriorated following the break-up and that the ongoing custody issues affect him deeply. According to his mother, T is in need of ongoing counselling. It is entirely unclear if he is in fact receiving assistance nor even that he is willing to participate.
I found the evidence of the Applicant and, especially, his wife to be very concerned with respect to T's welfare. I observe though that P considered his parents were scared of T. I accept the Applicant's evidence that T has substantially improved in recent times, although I note he came to Police attention as recently as December 2023, in fact, at the instigation of his father. Both parents said that T has been very positively influenced by his new partner, but I observe this is a relatively recent relationship - according to the Applicant's wife, only of about 3 months duration. I observe that the Applicant's wife said she removes alcohol from the family home if T is to visit, which suggests to me a level of concern that he may return to heavy drinking should he experience further set-backs, about which he may seek parental support or when he comes to the family home. In that regard I observe that his Family Court proceedings are unresolved and an outcome may not be achieved for some time.
T no longer lives with his parents at the family home where the Applicant's firearms are stored, although he visits them regularly. The Applicant and his wife are prepared again to offer their home to accommodate T and his child should he be granted some access, so he may again spend longer periods with them. I expect that his attendance there will continue, and possibly increase.
The evidence gives rise to concerns that while the Applicant considers he has adequately safeguarded his firearms and is confident that T is unable to access them, I cannot be comfortably satisfied that T, whose mental health issues are unresolved (and are probably untreated), who has an apparent problem with alcohol, whose moods are subject to "peaks and troughs", especially where issues in relation to his child are concerned, and that those issues are unlikely to be determined any time soon, does not adversely affect the Applicant's domestic circumstances.
I find that that there is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because his domestic circumstances. I observe that such a finding would, if the Applicant were applying for a licence, result in mandatory refusal of his licence. S 24(2)(a) of the Act, however, provides a discretion in relation to revocation in circumstances of such a finding, and this is discussed below.
[14]
Public interest
The Respondent also contended that it is not in "the public interest" for the Applicant to hold a firearms licence: s 24(2)(d) of the Act and cl 20 of the Regulation. The term is not expressly defined in the Act or Regulation. It is well-settled though that "the public interest" is to be considered relative to the objects of the Act and the firearms licensing system, with public safety being give paramount consideration: see, for example, Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and Hill at [24]. The Tribunal exercises the discretion in s 24(2) of the Act in accordance with the Act's objects and underlying principles as set out in s 3 of the Act. The Tribunal has repeatedly said that an applicant is not required to discharge an almost impossible burden of proving a near absolute negative, but, rather, the Tribunal must take into account 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]. Further, when assessing the public interest, only real and appreciable risk needs to be taken into account; minimal, fanciful or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32]. It is clear though that the overriding concern of the public interest in this context is the maintenance of public safety. Any real and appreciable risk to public safety cannot be outweighed by the Applicant's interest in holding a firearms licence.
Tribunal decisions have pointed out that the question of potential risk to public safety is not to be applied in an absolute manner, 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, [64] - [66].
It was submitted that looking at the Applicant's (more particularly T's) conduct as a whole, including potential future conduct, it was not in the public interest for the Applicant to continue to hold a licence for the reasons advanced in connexion with the Applicant's domestic circumstances.
I agree with the observations of Emeritus Prof G D Walker, Senior Member in Mibus v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 210 that, subject to public safety, it is in the public interest for law-abiding farmers and graziers to have access to long arms for the protection of the environment and of primary industry. The evidence was that wild dogs have attacked the Applicant's cattle and are a problem in the area.
In Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32], Montgomery JM when considering the question of public safety, stated that "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 at [74]. In that regard, I include the risk to T.
I have expressed my concerns about T and find that those matters give rise to a real and appreciable risk to public safety.
[15]
Applicant's Responses to Licence Renewal Questions
The Applicant's firearms licence was revoked on 8 July 2008 as a result of the Applicant failing to re-join his shooting club for the genuine reasons of recreational hunting/vermin control and target shooting. On 25 August 2008, however, his licence was reinstated after he re-joined the Sporting Shooters Association of Australia.
The Applicant's firearms licence was also suspended on 26 April 2012 after the domestic incident between the Applicant and P but suspension was lifted on 29 May 2012.
As noted above the Applicant has held a firearms for many years. In February 2010, May 2015 and March 2020 the Applicant sought to renew his licence. On each occasion he incorrectly answered 'no' to the question of whether he had ever had his licence suspended or revoked.
In his evidence the Applicant said with respect to the 2020 application that he had "lost the plot". This however did not address the errors in the earlier applications. He said with respect to all the applications that he had overlooked correctly answering the questions. He said, with respect to the later applications that he just "got into the habit" of "pressing the same buttons [while completing the online form]" and his incorrect answers were not deliberate. He observed that notwithstanding the incorrect answers, his licence was renewed on each occasion in circumstances where his suspension and/or revocation was known the Firearms Registry.
The Applicant observed that he had been shooting since he was 12 years old and had held a licence for over 50 years.
The Applicant's response in his 3 re-applications was clearly incorrect. In Saxby v Commissioner of Police [2021] NSWCATAD 275 (Saxby), I made a number of observations in relation to the provision of false and misleading information under the Act and said at [74]:
74. If the Applicant had knowingly provided false or misleading information in the application he would be liable to severe penalty: s 70 of the Act. Furthermore, on that basis alone, it would be unlikely that it would be in the public interest that a person who knowingly provided false or misleading information, should hold a firearms licence: see Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240. …
As I said in Leatham v Commissioner of Police [2021] NSWCATAD 121 at [18] one of the objectives of the Act is the functioning of a proper system of firearms licensing, which necessarily depends on applicants providing true and correct information in a comprehensible manner. In Kogias v Commissioner of Police [2020] NSWCATAD 297 the applicant, who had failed to disclose that he had previously had his licence revoked, said that his incorrect statements in the application were errors and were not intentional. Nonetheless the Tribunal in that matter took the view that the applicant knew the form he had completed was incorrect. Similarly, in Hunt v Commissioner of Police [2021] NCATAD 58 the Tribunal found the applicant was aware that he had incorrectly completed the form in relation to a suicide attempt within the preceding 10 years.
In Hook v Commissioner of Police [2020] NSWCATAD 250 the applicant had responded "no" to a question whether in the past 10 years he had been the subject of an AVO and had explained that he had thought the question was asking about current AVOs and that he must have misread the question. Professor Walker SM considered, at [96], that the applicant's explanations were less than impressive and at best suggested a degree of carelessness in completing an official document and that the meaning of the question was clear enough if he had taken the trouble to read it properly. The Senior Member found the applicant in that matter to be, essentially, unsophisticated and probably had not been involved much legal form-filling. His incorrect answers resulted from a combination of carelessness and inexperience and were not knowingly false or misleading within the meaning of s 70. The Senior Member also contrasted the matter to Constantin v Commissioner of Police, New South Wales Police Force, [2012] NSWADT 172 (Constantin), where the applicant had knowingly concealed a Queensland conviction for armed robbery.
In Cook v Commissioner of Police [2021] NSWCATAD 204 (Cook), I said at [36]:
If the Applicant had knowingly provided false or misleading information in his applications he would be liable to severe penalty: s 70 of the Act. As I said in Balle v Commissioner of Police [2021] NSWCATAD 187(Balle) at [14] it would be unlikely that it would be in the public interest that a person who knowingly provided false or misleading information, should hold a firearms licence.
As I observed in Saxby at [75] the firearms licensing regime necessarily depends on applicants providing true and correct information in a comprehensible manner.
The Applicant did not dispute that he was aware of the suspension of his firearms licence. His licence was suspended twice - in 2008 and 2012. It would be expected that an applicant would carefully consider a subsequent re-application and ensure that the information that was provided was accurate. I note that following each suspension the Applicant's licence was re-instated and his firearms returned to him. That history was well-known to Police, and did not provide any impediment to the subsequent re-issuing of his licence. There was no evidence that, had he answered correctly, that the re-issue of his licence would have been affected. I accept that the Applicant was careless in his responses and was not engaging in an attempt to deceive Police.
[16]
The discretion and the proposed condition
I have found that the Applicant's domestic circumstances give rise to concerns that he may not personally exercise continuous and responsible control over firearms. Further, I have found that there are public safety issues that may mean the Applicant's continued firearms licence is not in the public interest. Both s 24(2)(a) and s 24(2)(d), however, provide for discretionary revocation of a licence in the event the underlying factors are met. I have decided, however, to exercise the Tribunal's discretion and not revoke the Applicant's licence.
The Respondent submitted, that, should I consider that the decision should be set aside, an alternative was to impose conditions on the Applicant's licence. Section 19(1) of the Act provides that a licence may be issued by the Commissioner subject to such conditions as the Commissioner (and hence the Tribunal on review) thinks fit to impose.
The power to impose a condition under s 19 of the Act is discretionary and that discretion should be exercised in a way which promotes the principles and objects of the Act: Cusumano at [23]. The appropriateness of a special condition on a firearms licence is a function of the public interest, and, in the context of firearms licensing, the overarching component of the public interest is public safety: Mulligan v Commissioner of Police [2020] NSWCATAD 272 at [58].
Special Conditions should be proportionate to the risk to public safety, when weighed against the level of interference with the genuine reasons for the Applicant holding and using a firearm (Wallin v Commissioner of Police (No 2) [2022] NSWCATAD 83 (Wallin)). When exercising the discretion, a decision-maker should not shy away from imposing a condition merely because it may cause inconvenience to the licence holder: Hill at [22].
The Respondent proposed the following condition (now anonymised):
1. The licence holder is prohibited from possessing or storing firearms, firearm parts or ammunition at any location where T or S resides or frequent;
2. The licence holder is prohibited from removing the firearms, firearm parts or ammunition out of their place of safe storage while T or S are in attendance or present at the location; and
3. Any alternate safe storage location must comply with Clause 28B of the Firearms Regulation 2017.
In Parkins v Commissioner of Police, NSW Police Force; Parkins v Commissioner of Police, NSW Police Force [2024] NSWCATAD 31 I recently discussed the meaning of "frequent". In essence, what the term means will be a question of degree in each case. I am satisfied that T frequents the family home, visiting a couple of times a week. I do not consider the same can be said in relation to S.
I considered that in the context of the likelihood of ongoing disputes between T and his ex-partner it was appropriate to impose a condition to effectively remove the risk of firearms coming into T's hands. In doing so I am mindful of the need for protection of public safety, consistent with the objects of the Act as stated in s 3: per Wallin at [31].
On all the evidence, it is my view that the circumstances warrant the imposition of a condition on the Applicant's licence in order to safeguard public safety and protect the public interest.
[17]
DECISION
The decision to revoke the Applicant's firearms licence is set aside.
The Applicant's firearms licence is to be re-issued subject to the following conditions:
1. GGJ is prohibited from possessing or storing firearms, firearm parts or ammunition at any location where T resides or frequents;
2. GGJ is prohibited from removing the firearms, firearm parts or ammunition out of their place of safe storage while T is in attendance or present at the location; and
3. Any alternate safe storage location must comply with Clause 28B of the Firearms Regulation 2017.
[18]
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: 20 March 2024
Parties
Applicant/Plaintiff:
GGJ
Respondent/Defendant:
Commissioner of Police, NSW Police Force
Cases Cited (28)
, New South Wales Police Service [2004] NSWADT 110
Texts Cited: Nil
Category: Principal judgment
Parties: GGJ (Applicant)
Commissioner of Police, NSW Police Force (Respondent)
Representation: Applicant (Self-Represented)