HBI v Commissioner of Police, NSW Police Force [2025] NSWCATAD 157

(a) there is a real and appreciable risk to public safety if the reviewable decision is set aside and the Special Condition lifted; and

(b) by reference to the genuine reason for which the Applicant holds the licence, there is little, if any, inconvenience as a consequence of the Special Condition being imposed.

1. The Applicant wants the Tribunal to set aside the Respondent's decision and remove the Special Condition. The Applicant's position is that the son's behaviour is now controlled through medication, diet and parenting strategies so there is no risk to public safety if the Special Condition is lifted.
2. The primary issue for determination by the Tribunal is whether there remains an appreciable risk to public safety or whether the son's behaviour is controlled such that there is no longer a risk that warrants the Special Condition. For the reasons which follow, the Tribunal has concluded that the Respondent's decision should be affirmed, and the Special Condition should remain at this time.

1. The Respondent relies on written submissions and oral submissions made at the hearing.
2. The Respondent relies on the following documents:

(1) Submissions filed on 12 May 2025

(2) Documents filed in accordance with s 58 of the Administrative Decisions Review Act 1997 (ADR Act) on 28 March 2025 (s 58 bundle of documents)

(3) Further submissions filed on 29 May 2025_._

1. The Applicant relies on written submissions filed on 6 May 2025. The Applicant also made oral submissions and was cross examined at the hearing.
2. The Applicant was provided with an opportunity to file any further submissions in reply to the Respondent's further submissions filed on 29 May 2025. The Applicant did not file any further submissions.
3. In addition to the Administrative Review Application Form filed on 27 February 2025, the Applicant relies on the following documents:

(1) Letter from a Doctor treating the son dated 11 March 2025

(2) A food allergy report relating to the son dated 15 September 2025

(3) Photographs of a gun safe undated

(4) Submissions dated 28 April 2025

(5) Photographs of a gun safe and camera undated

(6) Psychology Assessment Report in relation to the son dated 1 February 2024

(7) Reference from an employee and friend dated 27 April 2025

(8) Reference from a neighbour undated

(9) Reference from the son's grandmother dated 29 April 2025

(10) Reference from an employee and friend dated 27 April 2025.

1. On 22 May 2025, the Tribunal made an order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) prohibiting the disclosure of the name of the Applicant or any material that is likely to identify the Applicant. This includes the names of the Applicant's family members and associates.
2. In accordance with s 64 of the NCAT Act the Tribunal was satisfied that it was desirable to make the order due to the sensitive nature of the material before the Tribunal relating to a young person. The young person could be identified if the Applicant or any of the Applicant's family members or associates is revealed.

1. Under s 75(1)(b) of the Firearms Act a person may apply to the Tribunal for review under the ADR Act of a condition imposed by the Commissioner on a licence or permit issued to the person.
2. Under s 63 of the ADR Act the Tribunal must decide what the correct and preferable decision is having regard to the material before it.
3. Under s 19 of the Firearms Act a licence may be issued by the Commissioner "subject to such conditions as the Commissioner thinks fit to impose."
4. The principles of the Firearms Act are set out in s 3(1). Relevantly they are to "confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety", and "to improve public safety - by imposing strict controls on the possession and use of firearms", and "by promoting the safe and responsible storage and use of firearms."
5. The objects of the Firearms Act in s 3(2) include to provide strict requirements that must be satisfied in relation to licensing of firearms and to ensure that firearms are stored and conveyed in a safe and secure manner.

1. The Firearms Act does not provide any guidance on how the discretion in s 19 should be exercised. In Minister for Immigration and Citizenship v Li [2013] HCA 18; [2013] 297 ALR 225, the majority of the High Court stated at [67]:

"[W]here discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object."

1. Previous cases have decided that the Tribunal must exercise its discretion in a manner that promotes the principles and objects of the Firearms Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23].
2. This approach has been applied in matters where the reviewable decision is to refuse to grant a licence, but it is also relevant when exercising a discretion to impose a Special Condition: Ljubenkov v Commissioner of Police, NSW Police Force [2024] NSWCATAD 43 at [24].
3. Accordingly, the question for the Tribunal is whether or not the decision to impose a special condition on the Applicant's licence is the correct and preferable decision having regard to s 19 in its statutory context, which includes exercising the discretion in a way that promotes the principles and objects of the Act (Cruickshank v Commissioner of Police [2022] NSWCATAD 115 at [29]; Grant v Commissioner of Police [2020] NSWCATAD 158 at [31]).
4. Having regard to the principles and objects of the Firearms Act in s 3, in particular "the overriding need to ensure public safety," the submissions of the Respondent and relevant cases, the Tribunal considers the following principles are relevant to exercising the discretionary power in s 19:

(1) The underlying principles and objects in s 3 stress the overriding need to ensure public safety. The Applicant's personal interest is subordinate to the public interest in ensuring public safety: Martin v Commissioner of Police [2022] NSWCATAD 228 at [66].

(2) 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: GRK v Commissioner of Police, NSW Police Force [2024] NSWCATAD 326 at [24].

(3) Special Conditions should be weighed against the level of interference with the genuine reasons for the Applicant holding a firearms licence Wallin v Commissioner of Police (No 2) [2022] NSWCATAD 83; Ryan v Commissioner of Police [2021] NSWCATAD 23, but decision-makers should not shy away from imposing a condition merely because it may cause inconvenience to a licence holder: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWCATAD 83 at [36]- [37]. Where the Special Condition does result in inconvenience to the licence holder, the question is whether that inconvenience is necessary to maintain public safety: Wallin at [36]-[37].

(4) Only "real and appreciable risk" needs to be taken into account and "minimal, fanciful or theoretical risk" can be excluded from consideration: Ryan at [39].

1. In relation to the fourth point above, the Respondent has submitted that the test to be satisfied has also been described as one of there being "virtually no risk" citing then DP Henessey in Ward v Commissioner of Police [2000] NSWADT 28 at [28]. However, in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [8] then DP Henessey clarified that

"The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests."

1. Subsequent Tribunal decisions have considered the question of potential risk to public safety. In Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [66], the Tribunal stated:

"The question of risk is therefore not 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."

1. Where there is the 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: Lee v Commissioner of Police [2020] NSWCATAD 144 at [94].

1. To decide whether to impose a Special Condition on the Applicant's licence, the following issues are to be determined by the Tribunal:

(1) Is there a real and appreciable risk to public safety if the Special Condition was removed, having regard to all the circumstances?

(2) Does the Special Condition interfere with the Applicant's ability to use the firearm?

(3) Is the Special Condition proportionate to any risk to public safety?

Is there a real and appreciable risk to public safety if the Special Condition was removed, having regard to all the circumstances?

1. The Respondent refers to a series of incidents where the Police were called to the Applicant's residence as evidence that the Applicant's son has exhibited behaviours that warrant the Special Condition.
2. The Respondent's Computerised Operational Policing System (COPS) database recorded multiple incidents between 6 December 2021 and 27 February 2024 where Police were called because of the behaviour of the Applicant's son.
3. The COPS records include threats of self-harm toward the son and others and indicate that the son had been scheduled under s 22 of the Mental Health Act 2007 in 2022. On at least one occasion the Applicant indicated to Police that the son's behaviour was because he hadn't had his medication.
4. The violent and aggressive incidents recorded in the COPS records included a "fit of rage" in February 2022 during which the son allegedly placed his hands around his sister's neck and concerns reported to the Police from the Applicant that as parents they felt their son's outbursts were becoming so violent that they would "have to resort to violence to protect themselves."
5. Other incidents in the COPS records were becoming "armed with a pair of scissors" and trying to exit a moving vehicle in September 2022, the son pushing the father in November 2023 and indicating he was remorseful for his actions but that he left the house before he "did something he would regret," and holding a knife and threatening to hurt himself with the knife in February 2024.
6. The Respondent contends that the COPS records are evidence of multiple incidents of aggression and threats of violence made by the Applicant's son to others and himself and indicate that there is a general history of disharmony within the family home. In the Respondent's submission these incidents, which occurred as recently as 14 months ago, raise a real and appreciable concern for public safety should any firearms be present on the Applicant's residential premises or otherwise in the presence of the Applicant's son.
7. There was a further call out to the Applicant's residence in August 2024 where the son called the police after a family member injured their hand on shattered glass of a mobile phone after the son threw the phone against the wall in anger.
8. The Applicant does not dispute that these incidents occurred. The Applicant submitts that "Over the past years we have had a substantial amount of issues with [the son] becoming very violent..." and set out concerns the Applicant had with the son's medication and how there had been discussions with medical practitioners about whether he had been correctly diagnosed.
9. In January 2024, the son was diagnosed with "Autism (Level 2-Sever [sic]) along with DHD, Sensory, ODD, Anxiety." At the same time a doctor was engaged who reduced and reintroduced the son's medications. The Applicant submits that after nearly 10 to 12 months of working with the doctor the parents felt they "have a balance for [the son] and us with no big outbursts and helping [the son] and ourselves regulate during difficult times when [the son] is dysregulated and trying to help and understand what is happening."
10. The Applicant relies on test results received on 16 September 2022 which indicate that the son is also intolerant to certain foods and points to recommendations by the doctor that gluten, dairy or certain nuts be totally cut out of the son's diet with six other foods restricted. The Applicant's written submission state that:

"Over the time we have noticed a massive difference that if [the son] eats any Gluten, Dairy ... it reacts with him and becomes very abusive and acts out....we cook all meals to be Gluten, Dairy ... free which has assisted more than anyone could realize."

1. Under cross examination by the Respondent, the Applicant's evidence is that while there was a previous pattern of violence and aggression by the son, that situation is now settled. The Applicant's evidence is that all food is cooked at home and measures are in place to ensure that the son does not eat the excluded foods at school or elsewhere.
2. The Applicant also considered that the previous violence was medication related, and that his medication regime is now stable. The Applicant does not consider that there is any risk that the son's medication will not be taken or that it will be changed, stating that he always takes it. When asked at the hearing what would happen if the son refused to take medication, the Applicant stated that they would walk away and try again, and that "I can't force him to take medication."
3. The Applicant provided four references from employee friends, a neighbour and the son's grandmother all referring to the son's positive changed behaviour as a result of the medication and dietary changes made.
4. The Tribunal has also considered the doctor's letter filed by the Applicant dated 11 March 2025. It is addressed to the NDIS support team which states that the Applicant's son "has a serious adverse reaction following the consumption of [particular foods]." The letter then states that the Applicant's son "will become violent and aggressive following the ingestion of these foods."
5. The Tribunal asked the Applicant whether they agreed with this doctor's assessment, if hypothetically the Applicant's son were to consume any of the problematic foods. While the Tribunal understands the Applicant's evidence to be that there is no likelihood that the son will consume those foods due to the measures that have been put in place (cooking all food at home, family not purchasing those foods, measures by the school, education of the son to self-exclude himself from those foods), the Applicant's evidence is that a violent and aggressive response would occur if the foods were to be consumed.

1. Based on the COPS records and the evidence of the Applicant, the Tribunal finds that the Applicant's son has engaged in violent and aggressive behaviour and made threats of self-harm between December 2021 and February 2024.
2. The Tribunal accepts that the Applicant and the family have taken positive and active steps to help regulate the son's behaviour through diagnosis, medication changes, dietary exclusions and deregulation strategies. The positive impact of those steps is evident from the references provided to the Tribunal and from the Applicant's submissions and oral evidence.
3. However, in all the circumstances the Tribunal considers that there is a real and appreciable risk to public safety if the Special Condition was removed. Having regard to the Doctor's letter of 11 March 2025, the evidence before the Tribunal is that the son will become violent and aggressive following the ingestion of certain foods.
4. While the Tribunal appreciates that every effort is being made to ensure the Applicant's now teenage son does not ingest the problematic foods, given the wide list of problematic foods, as a young person it is conceivable that he may inadvertently ingest the foods.
5. Even if food intake is fully controlled, the risk remains if the son does not take his medication. While the Applicant takes steps to ensure that the son takes his medication and that the medication remains stable, this is also a matter that cannot be fully controlled, as evidenced by the son's failure to take medication in the past. The Applicant has also conceded that the son cannot be forced to take his medication.
6. The Tribunal considers that insufficient time has passed to be satisfied that the son's behaviour no longer presents a risk to public safety, with the Police called to the Applicant's residence as recently as August 2024 following the mobile phone incident. At this time, given the serious consequences of the son becoming violent and aggressive if he ingests the problematic foods or fails to take his medication, there remains a "real and appreciable risk" which is more than a "minimal, fanciful or theoretical risk" to public safety if the Special Condition is removed.

Does the Special Condition interfere with the Applicant's ability to use the firearm?

1. The Respondent's position is that having regard to the genuine reason for which the Applicant holds a licence, the Applicant incurs little, if any, inconvenience as a consequence of the Special Condition being imposed.
2. The Respondent submits that on the evidence available, there is no compelling reason for the applicant to store a firearm at the Applicant's residential address, other than it being more convenient to do so. This is because the licence has been granted to "Shoot On Rural Land" on a property 126km from the Applicant's residence.
3. The Respondent also refers to clause 28B of the Firearms Regulation 2017 and states that the Applicant may store their firearms at a facility or location other than their residential address such as: at the Shooting Complex located a short drive from the residential address, at the residence of a neighbour, family member or friend, with a firearms dealer or at the rural property where the Applicant is authorised to shoot, provided clause 28B(3) is complied with. Clause 28B(3) sets out further requirements to secure a firearm if it is stored other than in an inhabited dwelling.
4. The Applicant agrees that the licence was sought and granted to shoot on a property located some distance from the Applicant's residence. The Applicant stated at the hearing that the land was owned by a relative and no income was being derived by the Applicant in shooting to control pests on the land.
5. The Applicant did not address, in any of the Applicant's evidence or submissions, the issue of whether there was any inconvenience caused to the Applicant by the Special Condition. At the hearing the Applicant stated that they were contesting the Special Condition now as they planned on moving to a rural property in the future and would need to use the firearm on their own property.
6. At the hearing the Applicant indicated that they were not aware that they are permitted to store the firearm somewhere other than at their residence. The Applicant would prefer a storage option that did not require a fee to be paid. The Applicant stated that they could seek to store the firearm at a friend's premises and the friend is also the holder of a firearms licence.
7. The Tribunal asked the Respondent for further information on the options available to the Applicant to store the firearm other than at their residence. This would assist the Applicant to consider whether the firearm could be stored elsewhere and any inconvenience caused to the Applicant of doing so. The Tribunal also asked the Respondent to clarify the process to be followed and the matters to be taken into account if the Applicant's domestic circumstances, residential address or purpose for holding the firearm licence changes in the future.
8. The Respondent submitts that provided the Applicant complied with the general requirements of s 40 of the Firearms Act and clause 17 of the Firearms Regulation, then clause 28B(1) permits them to store any firearm at the principal place of residence of any other person.
9. In relation to the impact of the Special Condition should the Applicant move to a property where the firearm was needed for use on that property, the Respondent's further submissions set out the process to be followed to notify a change of address and any changes to the purpose for holding the licence.
10. The Applicant was given the opportunity to respond to the Respondent's further submissions including to provide any further information on the impact on the Applicant's ability to use the firearm licence if the firearm was required to be stored other than at the Applicant's residence. No further submissions from the Applicant were received by the Tribunal.

1. The Applicant did not directly address the issue of inconvenience in their evidence or submissions. However, based on the Applicant's submissions at the hearing, and the further submissions of the Respondent setting out the requirements for storing a firearm other than at the Applicant's residence, the Tribunal is satisfied that there are storage options available to the Applicant.
2. The parties agree that the current licence is to shoot on rural land located some distance from the Applicant's residence. Given that the Applicant will always have to travel in order to use the firearm, the Tribunal does not consider that storing the firearm somewhere other than at the Applicant's residence will cause undue inconvenience at this time.

Is the Special Condition proportionate to any risk to public safety?

1. The Respondent's position is that in weighing the inconvenience to the Applicant in not being able to store a firearm at their residential address and the risk to public safety, the real and appreciable risk to public safety in this instance is greater. The Respondent refers to the overriding need to protect the public, and the heightened risk to the public when there is domestic instability and firearms are potentially accessible which can lead to tragic outcomes.
2. The Tribunal asked the Respondent for further submissions on the intended meaning of the reference in the Special Condition to where the person "frequents". This goes to whether the Special Condition is proportionate and goes no further than what is required for the protection of public safety.
3. The Firearms Act does not provide any guidance on when a person may be said to "frequent" a particular location and there is limited case law on the precise meaning of the word in the context of the Act: GKU v Commissioner of Police, New South Wales Police Force [2024] NSWCATAD 241 at [102].
4. The Respondent submitted that some guidance can be gleaned from other cases imposing Special Conditions in similar terms. The Respondent referred to examples of when a person has been said to "frequent" a location. They include visiting a place on average four times a year (GKU), every six weeks (Parkins v Commissioner of Police, NSW Police Force [2024] NSWCATAD 31 at [66]) and two or three times a week (Grasnier v Commissioner of Police, NSW Police Force [2024] NSWCATAD 133 at [105]; GGJ v Commissioner of Police, NSW Police Force [2024] NSWCATAD 73 at [91]).
5. The Respondent contends that the wording of the Special Condition is sufficiently clear to enable the Applicant to understand and comply with it. Construing the word "frequents" in the Special Condition consistent with its ordinary meaning, the Respondent submits that the son can be said to "frequent" a location if it is a place at which he would be expected to attend with some regularity or often.
6. The Respondent also submits that it would be open to the Applicant to have the Special Condition reviewed by the Respondent at any time and to submit evidence of any change in domestic circumstances. The facts and circumstances that may be considered:

"...include evidence of any changes in the Applicant's son's behaviour, the length of time since any incidents were recorded, and any evidence about the risk posed by the Applicant's son."

1. Based on its ordinary meaning, the Special Condition restricts the storage of the firearm at a location where the son "frequents", that is, a place where the son is expected to be from time to time. The Tribunal considers then, that the firearm cannot be stored at locations which include a place where the son lives, premises where he is expected to visit or in a vehicle that he is travelling in. These restrictions are proportionate to the risk to public safety because they are specifically adapted to prevent the risk from materialising.
2. The fact that the Applicant may apply for the Special Condition to be reviewed by the Respondent at any time, also weighs in favour of the Special Condition being proportionate to the current risk to public safety. The Applicant could provide further information to be considered at that time.
3. Given the Tribunal's finding that there is a real and appreciable risk to public safety if the Special Condition is removed, the impact of the Special Condition to restrict where the firearm is stored is proportionate in all of the circumstances. The Tribunal finds that the Special Condition goes no further than what is required for the protection of public safety.

1. For the reasons set out above the Tribunal finds that the correct and preferable decision is to affirm the decision of the Respondent to impose the Special Condition.
2. Taking account of all the circumstances with an overriding focus on public safety, there is a real and appreciable risk to public safety if the Special Condition was removed.
3. The Special Condition does not impose unnecessary inconvenience on the Applicant or unduly interfere with the genuine reasons for the Applicant holding the current firearms licence. It goes no further than what is required to address a real and appreciable risk to public safety.
4. Should the domestic and other circumstances of the Applicant change in the future, they may apply to the Respondent.

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.