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").
[2]
Background
The applicant was issued with a category AB firearms licence on 8 July 1998. He used the licence to shoot on rural lands. His licence expired in 2003 and he was again issued a licence on 27 August 2008.
On 21 February 2017, the police received a report from a psychologist in relation to the Applicant's son who, at the time, was 17 years old. During a period of three visits to the psychologist, the son disclosed that when he was in years 7 and 8, he had fantasies of shooting his schoolmates as he had been the subject of bullying. He also disclosed that since he entered year 11, he had suicidal tendencies. He also had fantasies about walking into his school with a gun, committing violence and then killing himself.
On 10 January 2023, the son met with certain persons and became involved in a verbal argument. He retrieved a wheel lug nut bar from his vehicle and made threats while spinning the bar. He dropped the bar after one of the persons said he would call the police. On 13 January 2023, at 12:00 AM, the son met some of the persons involved in the events of 10 January 2023 and had a verbal argument. It is alleged that the son said "I'll kill you".
Later, the incident was reported to police and written statements provided to the police. Police also spoke to the son who denied making any threats or any physical altercation. Another witness confirmed this. Another witness refused to speak with the police. Due to the conflicts in accounts, the police did not continue the investigation.
Relevant to the matter are further events that took place in early 2024 at the residence of the Applicant. There was evidence that the Applicant and his wife disapproved of their daughter's partner. The partner and his sister had attended the Applicant's house on 11 February 2024, due to concerns about the daughter's welfare. It was alleged that the Applicant had made certain threats to his daughter and the daughter's partner.
On 14 February 2024, police responded to a report in which it had been alleged that the Applicant's wife had assaulted his daughter. The events transpiring between the wife and daughter involved a disagreement about the daughter's partner on 13 February 2024. The acts of violence described in the police report were multiple and not a single act, but all occurring sequentially during the same period. After these events, the daughter left to stay with her godfather and then with her partner. The daughter reported the incident to police and provided a domestic violence evidence in chief video statement. She expressed fears for her safety and did not want to be contacted by her mother or for her whereabouts to be disclosed to her family.
On 14 February 2024, the police attended the Applicant's address and placed his wife under arrest. She denied all allegations of assault. The Applicant denied witnessing any assault and stated that what transpired was only a verbal argument. However, in the statement he made to the police, he stated that there was "hitting and smashing and breaking and arguing".
On the same day, an interim apprehended domestic violence order was imposed against the Applicant's wife.
On 17 April 2024, the daughter provided a letter to the police stating that she would like to reconcile with her mother, did not want the apprehended violence order and did not want to attend court. She also said that she did not fear for her safety and did not feel threatened in any way by her mother. The interim apprehended domestic violence order was subsequently withdrawn on 21 April 2024.
The Applicant's firearms licence had been suspended. On 23 April 2024, the suspension was lifted and a special condition imposed. That special condition prohibited the Applicant from possessing or storing firearms, firearm parts and ammunition at any place where his wife resides or frequents. She continues to be married to and resides with the Applicant.
The Applicant applied for internal review of the Respondent's decision to impose the special condition in question. The Applicant's application was refused on 17 June 2024. On 11 July 2024, the Applicant applied for administrative review of that refusal.
[3]
Applicant's right of review
Under s 75(1)(b) of the Firearms Act 1996 (NSW) ("Firearms Act"), a person may 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".
[4]
Consideration
The statutory scheme for the licencing of firearms is set out in the Firearms Act 1996 (NSW) ("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]). In the case of the Firearms Act, discretion should be exercised in a way which promotes the principles and objects of the Firearms Act (Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, at [23]; Grant v Commissioner of Police [2020] NSWCATAD 158, at [31]; Cruickshank v Commissioner of Police [2022] NSWCATAD 115, at [29]).
Those principles and objects are set out in s 3 . 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]). This is the "overriding need" set out in s 3.
Public safety, in turn, requires strict controls on the possession and use of firearms. This is an object of the statutory scheme set out in s 3(1)(b)(i).
The Respondent's submission is that imposing the special condition under review is necessary to uphold the principles and objects of the Firearms Act set out in s 3. This included 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 this 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 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 also 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 of 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 in some circumstances, required police intervention. The special condition in question was upheld.
I am of the opinion that this is not a case where the risks to public safety can be said to be "minimal, fanciful or theoretical" or a case where there is "virtually no risk". The test to be applied is a stringent one. It does not require that the threat be shown to be probable or likely. Less will suffice. Further, satisfaction of the test does not necessarily require an express threat to use firearms. Threats of violence and the perpetration of violence of the kinds described in the police reports in evidence are, in my opinion, sufficient to satisfy the applicable test, especially where the circumstances giving rise to the violence, namely the daughter's relationship with her partner, remain unchanged.
I do not consider that the withdrawal of the apprehended domestic violence order in this matter is sufficient to allow a conclusion to be drawn that any applicable risk no longer exists. The withdrawal occurred in circumstances where the daughter made the request for withdrawal in writing. She did not appear at the hearing of the matter to give oral evidence. The circumstances of her making that request were, therefore, not in evidence. I do not draw any particular inferences from the absence of oral evidence from the daughter. However, the absence of that evidence leaves me in a position of being unable to be satisfied that the risks in question do not arise.
It is well accepted that victims of domestic violence do not always report incidents or pursue proceedings because of fear of repercussions and may opt out of prosecutions in the hope of salvaging family relationships (Manning v Commissioner of Police [2020] NSWCATAD 111, at [51]). The observations made in Manning are relevant to the circumstances at hand. I place weight on the reports of domestic violence made on 14 February 2024, notwithstanding the subsequent decision made by the Applicant's daughter not to pursue matters.
The Respondent, in my opinion, has proved, on the balance of probabilities, the evidence that allows 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 13 February 2024. The occurrence of these events within a domestic context does not, for the reasons set out at [25] and [26] above, prevent a finding of risk to public safety.
I accept that the Applicant's own record as regards storage and use of firearms does not raise any concerns. However, it is not the Applicant's own conduct but that of his wife that creates the risks that s 3 is concerned with in the present case. The Applicant's evidence was that his wife did not know how to use firearms and had not accessed and could not access the firearms safe in which the firearms were stored. Despite his evidence, I am unable to find that the risk arising can be described as "virtually no risk" or "minimal, fanciful or theoretical", when considering the issues surrounding his wife and daughter. I do not think that the inability of the wife at the present time to operate firearms can determine the matter. This would require that a presumption be made that where a person is unable to use firearms, the risk of violence at all future times must be assessed on the basis that no use of firearms can occur, simply because at the present time, the person is not able to do so. I do not see any basis for such a presumption at law or on the facts of the matter.
The issues concerning the Applicant's son are also relevant to the determination of this matter. I do not think that the Respondent's decision not to impose conditions on the Applicant's firearms licence following reports concerning the Applicant's son in 2017, precludes the Applicant from relying on these events as a consideration in imposing conditions at a later date. However, regardless of the matters raising from the son's conduct, I have found that assessment of the risks discussed above properly allows the imposition of the relevant conditions on the Applicant's firearms licence. Nevertheless, I also place weight on risks concerning the Applicant's son as relevant to the Respondent's decision.
I accept that the condition placed on his firearms licence produces inconvenience to the Applicant. His evidence was that the firearms were stored at the premises of a friend about 15 minutes away from his residence travelling by car. His evidence was also that he was reluctant to inconvenience his friend to obtain access to his firearms. However, there was no evidence that he was prevented in any way by his friend from accessing the firearms. It is well accepted that simple inconvenience to the holder of a firearms licence cannot outweigh considerations of public safety. Where a 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]). These considerations prevail over the inconvenience for the Applicant. Inconvenience to the Applicant, in the circumstances of this matter cannot, outweigh the considerations going to public safety (Wallin, at [37]).
The administratively reviewable decision in this matter is, for the reasons set out above, affirmed.
[5]
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, daughter or son contained in evidence is prohibited.
[6]
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