Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication or broadcast of the content of any document provided to the Tribunal in confidence is prohibited.
[2]
REASONS FOR DECISION
This is an application for review of a decision of the Commissioner of Police, NSW, the respondent in these proceedings ("Respondent). The decision under review is the placing of a special condition on a firearms licence. The applicant in this matter contests that condition ("Applicant").
[3]
Background
The Applicant and his wife reside on a cattle farm in New South Wales. The Applicant is a primary producer.
The Applicant is the holder of a firearms licence. He has held a firearms licence for nearly 38 years. The firearms licence he holds is a category ABH firearms licence.
The Applicant's submission is that as a primary producer, firearms are tools of his trade and of vital importance, being used to dispatch humanely sick or injured animals as well as to control vermin.
The Applicant's son resides with his daughter in a separate dwelling on the same property near to the Applicant's residence.
Police records evidence various incidents and behaviours of the Applicant's son and issues surrounding his mental health. The evidence included a recent apprehended violence order issued against the Applicant's son that was current as at the date of hearing. Both the Applicant and the Applicant's granddaughter, the daughter of his son, were listed as persons in need of protection. The police records included a bundle of confidential documents dealing with some of the evidence. The Respondent made submissions on these documents at the hearing in the absence of the Applicant.
The events surrounding the apprehended violence order occurred on 11 March 2024. An alleged domestic violence incident occurred on that day at the Applicant's residence. The Applicant's son had at the time been intoxicated. He sought entry into the Applicant's residence to see his daughter. When the Applicant refused entry, his son caused property damage. The son then called the Applicant, making threats of harm to the son's former partner and self-harm. He also claimed being in possession of knives. There was evidence that during the same evening the son had crashed his car. He needed to go to hospital after the crash.
Later that evening, the son was arrested by the police for alleged domestic violence offences. While placing the son under arrest, the son was recorded as threatening to shoot police officers placing him under arrest. Whilst travelling to hospital, he repeatedly stated to police that he will hang himself and "kill all of you". A provisional apprehended violence order became an apprehended violence order on 6 June 2024. It is due to expire on 5 June 2026.
The evidence of the Respondent included evidence of events concerning the Applicant's son going back to 2004. They included charges and convictions for certain violent offences involving his partner at the relevant time, including firing a firearm in a manner likely to injure a person or property and using an unauthorised firearm. There had been an apprehended domestic violence order in 2005 protecting his partner. There was also evidence of past attempts at self-harm.
There was further evidence of charges being laid in November 2023 concerning a domestic violence incident. The son was later convicted with contravening a prohibition or restriction in an apprehended domestic violence order.
On 12 March 2024, the Applicant's firearms were seized by the police. On 14 March 2024, the Applicant was notified that a condition had been placed on his firearms licence. This was a special condition prohibiting the Applicant from using, storing or possessing firearms, firearms parts and ammunition at any address or location where his son resides or frequents. The Respondent imposed the special condition in issue, on the basis that the Applicant's son raised public safety concerns if firearms were stored or possessed at a location where he resides or frequents.
On 4 April 2024, the Applicant requested an internal review of the decision of the Respondent imposing the relevant condition on his firearms licence. Following that review, the imposition of the condition was upheld. It is the decision upholding the condition that is subject to review in these proceedings.
[4]
Applicant's rights of review
Under s 75(1)(b) of the Firearms Act 1996 (NSW) ("Firearms Act"), a person may relevantly apply to the Civil and Administrative Tribunal ("Tribunal") for administrative review under the Administrative Decisions Review Act 1997 ("ADR Act") of a condition imposed by the Respondent on a licence or permit issued to the person. Section 30 of the Civil and Administrative Tribunal Act 2013 (NSW) allows jurisdiction to the Tribunal to exercise functions as are conferred or imposed on the Tribunal under the ADR Act.
It was not in dispute that the Tribunal has jurisdiction for administrative review of the decision of the Respondent in this matter, in circumstances where the Respondent had imposed a condition on the Applicant's firearms licence.
The Tribunal's powers on review are set out in s 63(3) of the ADR Act as follows:
"(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.
In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:
(a) to affirm the administratively reviewable decision, or
(b) to vary the administratively reviewable decision, or
(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or
(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal".
[5]
Consideration
The statutory scheme for the licencing of firearms is set out in the Firearms Act. That scheme gives the Respondent a discretionary power to impose conditions on a firearms licence under s 19 of the Firearms Act.
The power allowed to the Respondent under s 19 is a power to issue a firearms licence "subject to such conditions as the Commissioner thinks fit to impose". The question for determination by the Tribunal is whether that power was correctly exercised by the Respondent when she imposed the condition in dispute.
Discretions allowed to administrators need to be exercised having regard to the purpose of the legislation conferring that discretion (Minister for Immigration and Citizenship v Li [2013] HCA 18, at [23]). The statutory context governing the issue of firearms licences set out in the Firearms Act, therefore, is of importance. Section 3 sets out the underlying principles of the Firearms Act in the following terms.
"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 supply 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".
The paramount principle derived from s 3 is ensuring public safety (Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218, at [24]; Huckel v Commissioner of Police, NSW Police Force [2008] NSWADT 347). This is the "overriding need" that must be given effect under the legislation.
Public safety, in turn, requires "strict controls" on the possession and use of firearms (Keane v Commissioner of Police, New South Wales Police [2008] NSWADT 68, at [44]). This is an express object of the statutory scheme, as set out in s 3(1)(b)(i).
Matters of fact relevant to determination of the question must be proved under the required standard of proof. The Tribunal in Nakad v Commissioner of Police NSW Police Force [2014] NSWCATAP 10, at [34] made the following observations on the requirements for proof, saying:
" .. there is no onus of proof, as that term is generally understood, in merits review cases: Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 424-425; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [40]. The Tribunal must decide what the correct and preferable decision is having regard to any relevant factual material: ADT Act, s 63(1)".
Matters of fact in issue need, however, to be proved on the balance of probabilities (Nakad, at [28]).
The Respondent's submission is that imposing the special condition in issue is necessary to uphold the principles and objects of the Firearms Act set out in s 3. This includes improving public safety and promoting the safe and responsible storage and use of firearms.
The question for the Tribunal is what limits should be placed on the discretionary power allowed under s 19 to impose conditions in the circumstances of the matter. Those limits involve assessing the risks to public safety. Special conditions should be proportionate to the risk to public safety and should go no further than what is required for the protection of public safety. The Tribunal has, in previous cases, said that only real and appreciable risk needs to be taken into account and that "minimal, fanciful or theoretical risk can be excluded from consideration" (Ryan v Commissioner of Police [2021] NSWCATAD 23, at [39]). The test to be satisfied has also been described as one of there being "virtually no risk" (Ward v Commissioner of Police [2000] NSWADT 28, at [28]).
It is well accepted that, having regard to the principle that possession and use of firearms is a privilege, community interest will take precedence over the private interests of an individual (Ljubenkov v Commissioner of Police, NSW Police Force [2024] NSWCATAD 43, at [25]). In Aubrey v Commissioner of Police [2005] NSWADT 266, the Administrative Decisions Tribunal said, at [21]:
"The objects and principles of the Act state that firearms are a privilege and inherent in the requirements is that persons who have access to firearms must act responsibly. Where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm. The principle issue then is whether there is a risk to the safety of the public if Mr Aubrey retains the licence".
It is also accepted that private matters such as family and domestic circumstances are relevant to the public interest test (Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149, at [31] - [34]). In Commissioner of Police, NSW Police Force v Arnold [2023] NSWCATAP 264, the Appeal Panel said, at [75]:
"It has been repeatedly stated that "in the context of the scheme under the Act, domestic violence incidents are a serious cause for concern, even where the alleged perpetrator is not convicted of an offence where there is no misuse of a firearm": see Grenfell v Commissioner of Police [2021] NSWCATAD 124 at [103] cited in Hariri v Commissioner of Police [2022] NSWCATAD 5 at [60]".
In Ljubenkov v Commissioner of Police, NSW Police Force [2024] NSWCATAD 43, the matter under consideration was a special condition prohibiting firearms being stored, possessed or used at a location where the wife or son of the applicant in that case resided or frequented. The decision made by the Respondent was that the applicant could not store firearms at his home. This was due to a history of his son having an extensive criminal history and other allegations of arguments, physical threats and family violence, which at certain times, had required police intervention. The special condition in question was upheld. The domestic circumstances of a licence holder were also found to be relevant matters going to public interest considerations in Snow v Commissioner of Police, NSW Police Force [2023] NSWCATAD 139 and Nasr v Commissioner of Police, NSW Police Force [2022] NSWCATAD 328.
I am of the opinion that this is not a case where the risk to public safety can be said to be "minimal, fanciful or theoretical" nor a case where there is "virtually no risk". The Respondent, in my opinion, has proved, on the balance of probabilities, the matters in evidence that allow the Tribunal to conclude that there is a sufficient level of risk to warrant the special condition under challenge in these proceedings. That evidence includes what is shown in the police records describing the events of March 2024 as set out at [7] above and also the previous events occurring in 2023 as set out at [10] above. That evidence deals with events, occurring as late as the current calendar year, involving violence and threats of violence on the part of the Applicant's son directed at the Applicant and others. The occurrence of these events within a domestic context does not, for the reasons set out at [26] and [27] above, prevent a finding of risk to public safety.
The Applicant raised certain doubts about the evidence surrounding the events of March 2024. He submitted that some of the threats alleged had been made by his son in 2024 followed the consumption of large amounts of alcohol. He also indicated that his son had done an exceptional job raising his daughter. The Applicant's evidence also was that his son had neither frequented the Applicant's residence nor accessed or attempted to access the Applicant's safe containing firearms. He also submitted that some of the events in question occurred as far back as 2005 and should not have a bearing on the matter.
If the matters in evidence were confined to the events occurring in 2005 the conclusion as to what the level of risk was may be different. However, the matters of concern include events that occurred as recently as 2023 and 2024.The risks include risks of self-harm by the Applicant's son. Having regard to the evidence shown in police records about these events, I do not find anything in the circumstances described by the Applicant, that allows me to conclude that there is "virtually no risk" or that any risk is "minimal, fanciful or theoretical".
The Applicant produced evidence of recent changes in the life of his son, including abstinence from alcohol. This evidence, however, does not prevent the Tribunal from finding that there is relevant risk at the present time. If, however, changes in the behaviour of the Applicant's son last for a reasonable period of time, this may, at a later date, be a relevant consideration in determining whether or not the special condition in question should attach to the Applicant's firearms licence.
The Applicant indicated that in order to comply with the condition in question, he has made arrangements with a neighbour some distance away for storage of his firearms. He indicated that this produced significant inconvenience to the operation of his enterprise. He expressed reluctance to ask the neighbour for access. He submitted that the difficulties in accessing and using his firearms had affected his ability to earn income from his enterprise.
I accept that the special condition does result in inconvenience for the Applicant. However, there is no evidence that storage of the firearms with the neighbour has prevented him accessing and using the firearms or from operating his enterprise, even if he is reluctant to ask his neighbour for access and has to travel a greater distance to access and return his firearms.
There was no evidence quantifying the financial impact of the condition in question. The enterprise has continued to operate from the time the special condition had been imposed.
Where the special condition results in inconvenience suffered by the Applicant, the question is whether that inconvenience was necessary to ensure public safety (Wallin v Commissioner of Police (No 2) [2022] NSWCATAD 83, at [36]). I have found that the considerations of public safety arise in this matter ([28] above). These considerations, in my opinion, prevail over the inconvenience for the Applicant. Inconvenience to the Applicant cannot outweigh the considerations going to public safety (Wallin, at [37]).
There are no questions concerning the Applicant's own fitness to hold a firearms licence. He has held a firearm licence for at least 38 years.
Accordingly, the administratively reviewable decision of the Respondent under review is affirmed.
[6]
Orders
1. The administratively reviewable decision of the Respondent under review is affirmed.
2. Pursuant to ss 64(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013, the publication or broadcast of the names or addresses of the Applicant, his wife, son or grandchild contained in evidence is prohibited.
3. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication or broadcast of the content of any document provided to the Tribunal in confidence is prohibited.
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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
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: 06 November 2024