Helsby v Commissioner of Police, NSW Police Force [2025] NSWCATAD 201;

1. Under s 75(1)(c) of the Firearms Act, a person may relevantly apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (NSW) ("ADR Act") of a revocation of a licence or permit issued to the person.
2. 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.
3. 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 revoked the Applicant's licence under the Firearms Act.
4. The Tribunal's powers on review are set out in s 63 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".

1. The statutory scheme for the licencing of firearms is set out in the Firearms Act. The Respondent "may" issue a licence in respect of an application, or refuse any such application under s 11.
2. The Respondent's power to issue a licence is discretionary. The statutory context governing the issue of firearms licences set out in the Firearms Act, therefore, is of relevance in determining how that discretion is to be exercised.
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".

1. 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" that must be given effect under the legislation.
2. Matters of fact relevant to determination of the question must be proved under the required standard of proof. However, there is no onus of proof. The Applicant, in particular, does not bear the onus of proof (Meacham v Commissioner of Police [2020] NSWCATAP 107, [75] and [81]-[82]; Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10, at [34]). The manner in which evidence is to be received has been described in the following terms: "the parties put on such evidence as they wish and, in a matter of this kind involving the exercise of a discretion, it is a matter for the Tribunal to properly consider all relevant materials and ignore all irrelevant matters in exercising the power of the relevant administrator in review proceedings. This is especially the case where a decision has been taken on a discretionary basis in light of the public interest". The Tribunal is required to base its findings of fact on "logically probative material" (Meacham, at [82] - [83]).
3. When exercising the discretionary power under s 11, what is required is an assessment of risk in allowing an applicant to have a firearms licence. The test is stringent. The Tribunal must be satisfied that there is "virtually no risk" (Ward v Commissioner of Police [2000] NSWADT 28, at [28]).
4. Section 11 says when a licence must not be issued. Section 11(3) provides:

"A licence must not be issued unless -

(a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace,

.....

(4) Without limiting the generality of subsection (3) (a), 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

(b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or

(c) the applicant's intemperate habits or being of unsound mind.

......

(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest."

1. Section 12 provides as follows:

"12 Genuine reasons for having a licence

(1) The Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm".

1. Section 24 provides as follows:

"24 Revocation of licence

......

(2) A licence may be revoked -

(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or

(b) if the licensee -

(i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or

(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or

(iii) contravenes any condition of the licence, or

(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

(c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or

(d) for any other reason prescribed by the regulations".

1. Clause 20 of the Firearms Regulations 2017 (NSW) ("Regulations") provides that:

"20 Revocation of licence - licence not in the public interest

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".

1. Section 24(2)(a) says 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. Provisions setting out when a licensee would be required to be refused a licence of the relevant kind are found in s 11 and 12 described above. Accordingly, how s 11 and 12 may or may not apply to the Applicant, were he to apply for a licence, is relevant to determining whether the revocation of his licence should stand or not.
2. The questions for determination by the Tribunal are as follows:

(1) whether the Respondent can be satisfied that the Applicant has a genuine reason for possessing or using a firearm;

(2) whether the Respondent can be satisfied that the Applicant is a "fit and proper person" to hold a licence and can be trusted to have possession of firearms without danger to public safety or to the peace;

(3) whether the Applicant supplied information which was (to his knowledge) false or misleading in a material particular in, or in connection with, the application for a licence;

(4) whether the Respondent can be satisfied that it is in the public interest for the Applicant to have a licence.

1. The Applicant says that he had a genuine reason for possession and use of firearms. That reason, in his submission, was to assist friends and neighbours in the culling of feral animals on their properties.
2. The Applicant himself, on the evidence, did not own a property on which feral animals were found.
3. However, the evidence also was that the Applicant had not used any firearm for more than 10 years. His reason for wanting a firearms licence was based on what appeared to be a hypothetical premise that friends or neighbours may ask for or he may wish to offer his assistance in controlling feral animals. There was no evidence of a specific current request from anyone for the Applicant's assistance to deal with feral animals.
4. Having not used a firearm for 10 years for the purpose indicated by the Applicant or for any other purpose, I cannot find that the evidence establishes a genuine need for the Applicant to possess or use a firearm.
5. Section 12 says that the Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm. The terms of s 12 are not discretionary. The Respondent is prevented from issuing a relevant licence unless satisfied of a genuine reason.
6. I accept that in circumstances where the Applicant had not used a firearm for more than 10 years and indicated a reason for the possession or use of firearms based on a hypothetical premise, the Respondent was correct in finding the absence of a genuine reason.
7. The table under s 12(4) of the Firearms Act sets out a list of matters that can be genuine reasons for possessing or using a firearm. There was nothing in evidence to show proof of any current permission to shoot on rural land or other land or proof of any other matter set out in the Table under s 12(4).
8. The absence of a genuine reason within the meaning of s 12 is sufficient to dispose of the matter and allow the Tribunal to affirm the decision under review.
9. I will nevertheless go on to comment on the other grounds relied upon by the Respondent to revoke the Applicant's firearms licence.

1. The question arose as to whether or not the Applicant is a "fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace" within the meaning of s 11(3)(a). A licence must not be issued to the Applicant unless the Respondent is so satisfied. If not so satisfied, these are grounds for revocation of a licence by reason of s 24(2)(c).
2. Under s 24(2)(c), a licence may be revoked if "the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence". The additional words found in s 11(3)(a) asking whether the person "can be trusted to have possession of firearms without danger to public safety or to the peace" do not appear in s 24(2)(c). However, s 24(2)(c) applies where the person in question is "no longer" a fit and proper person. This indicates, in my opinion, that s 24(2)(c) refers to an earlier time when the person satisfied the description of a "fit and proper person". Given that an applicant had to be a "fit and proper person" under s 11(3)(a) to obtain a licence in the first place, this must mean that the reference to a "fit and proper person" in s 24(2)(c) carries the same meaning as in s 11(3)(a) and not some different meaning.
3. Whether the Applicant is a fit and proper person within the meaning of the legislation, does not involve consideration of the Applicant's character as an abstract matter. The question must be asked within the particular statutory context. Specifically, it is whether the Applicant is a "fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace".
4. The Respondent's submission is that the Applicant is not a "fit and proper" person in the statutory sense. The Respondent, first of all, relies on the Applicant's mental health issues as far back as 2011, the effect of his medication causing him drowsiness and his taking of psychotropic medication.
5. The Respondent also relies on the Applicant's expression of suicidal ideation on a number of occasions including certain occasions in 2023 and 2024.
6. The Respondent also relied on the evidence that the Applicant's mental health issues appear to have been linked to his workplace environment and the issues surrounding his partner's status. A medical report in evidence of 16 April 2025 stated that the Applicant was not "currently considered to be at risk of harm to himself, to others, or from others". In the Respondent's submission, this evidence was of "very limited reliability" because, among other things, it did not detail the tests or assessments completed and the results.
7. Finally, the Respondent said that the Applicant's suicidal ideations established in the evidence was relatively recent.
8. In Freier v Commissioner of Police, NSW Police Force [2024] NSWCATAD 291, the Tribunal considered the consequences of evidence of suicidal ideation in the circumstances of that case. It said, at [41] - [44]:

"The Applicant's own evidence included admissions of suicidal ideation. The Applicant denied that he was suicidal when he sent the emails, claiming he was frustrated about the progress of his workers compensation claim. He said that his use of the words "I am suicidal" in the email was to express a feeling of "utter distress and feeling futile about the future", that he was "much less functional then and damaged to the point that [his] filters were in disarray" and it was a "plea for help". It was submitted on his behalf that it was a "cry for help".

The evidence though was that, on at least three occasions over a period of three consecutive years, the Applicant experienced suicidal ideation. He wrote in his statement that he had "a brief flirtation with suicidal ideation (which is fantasizing about or thinking about how you might do it)". The medical evidence is that he had multiple episodes of suicidal ideation. Most recently, in February 2023, his wife, for the first time, requested his keys to his firearms safe, notwithstanding that the Applicant said he was "not going to do anything". I accept that she held a genuine concern that the Applicant may use a firearm for the purpose of self-harm.

He wrote that the "scales of suicidality descend from ideation, to acting out, to attempts, to finally committing suicide" ultimately concluding that he was "at the top of that scale and even then, only momentarily". I accept the Applicant's evidence that when he has had suicidal thoughts he has not taken active steps and that firearms have not been involved.

I consider though that the Applicant sought to downplay the risks of self-harm arising from his mental health issues, by obfuscating in relation to his suicidal ideation, belabouring the distinction between "suicidal ideation" and being "actually suicidal". While I have accepted that he has never attempted suicide, it is clear that he has had thoughts of suicide on multiple occasions. Disturbingly, following the incident in February 2023 he told Police and NSW Ambulance that he has been "sort of fluctuating between ambivalence towards life at best and suicide for the last couple of years" and he refused to answer an Ambulance officer's question about whether he had a plan to self-harm.

1. The Tribunal went on to find, at [47] - [48]:

"Some of the Applicant's depressive episodes have coincided with family issues; some were a response to work-related issues. There may have been other triggers. While I acknowledge that the Applicant is estranged from some family members with whom he has been in conflict, the risk would be increased in the event that there was renewed conflict with them. Similarly, notwithstanding that he has been considered to be totally and permanently incapacitated for work due to his mental health, consistent with his strong work ethic, he remains interested in undertaking gainful employment and if he did so he may experience further adverse mental health issues as a result. I consider that if the Applicant were to suffer a further period of depression or experience a relapse in his mental health condition, there is a reasonable risk that he may not personally exercise continuous and responsible control over his firearms.

The Applicant may pose a threat to the public, including himself, if his firearm licence were to be returned. I am comfortably satisfied that there is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because he is "of unsound mind". I repeat my acknowledgment of the likely offensiveness of this turn of phrase, but its use is unavoidable in view of my findings".

1. While each case turns on the particular facts of the case, the Tribunal's treatment of evidence of suicidal ideation in Freier and acceptance of that evidence, in circumstances where the applicant in that case tried to "downplay" what he had said, holds relevance to the present matter. Statements evidencing suicidal ideation should not be taken lightly.
2. The Applicant says that what he said to police on 29 May 2024, was intended by the Applicant as "dark humour". This may have been his intention. However, this was not the only statement the Applicant made or evidence about suicide or self-harm. There were other expressions of suicidal ideation on the part of the Applicant in 2023 and 2024 (see [11], [14], [24] and [25]) above. That evidence included what was written in the Applicant's hospital discharge summary of 29 May 2024.
3. The Applicant's suicidal ideation occurred in the context of the Applicant's depressive mental health condition. When considered against the background of his medical condition, the Tribunal is unable to dismiss as being of no material consequence, the more recent statements that the Applicant has made concerning suicide or self-harm. The evidence also was that the medication he was taking could cause drowsiness. This is also a matter that must be taken into account in determining whether the Applicant can safely handle a firearm.
4. I accept the matters raised by the Respondent as to the limited weight that can be accorded to the medical evidence of 16 April 2025, noting in particular the absence of information about the tests and assessments carried out and the results. That further information is necessary to allow the Tribunal to evaluate the evidence and ascertain what weight it can carry.
5. There was no evidence to show that the Applicant poses a risk to third parties. The evidence is of risk to himself.
6. However, this is not a case where possession of firearms by the Applicant can be said to pose "virtually no risk" for the reasons set out above. The Respondent in these circumstances would have a basis for forming an opinion of the kind required by s 24(2)(c) to allow for revocation of the Applicant's firearms licence.

Knowingly providing false and misleading material

1. The Respondent relies on the matters set out at [4] and [5] concerning the information the Applicant provided in 2008 and 2012 above in support of her submission that the Applicant has "knowingly" provided false and misleading information in his application for a firearms licence. The consequence, in the Respondent's submission, is that the discretion to revoke a firearms licence arises.
2. In addition to what is provided for in s 24(2)(b)(i), s 70 of the Firearms Act also contains provisions dealing with the consequences of making a statement or providing information that a person knows is false or misleading in a material particular.
3. The Applicant says that the information he provided before 2016 as to whether or not he had attempted self-harm was not "knowingly" false or misleading. This was because, at the time he provided the information, he did not understand his actions in 1980 to have been "self-harm". The Applicant's evidence was that what he did in 1980 was to take an overdose of Panadol. He said that at the time, he did not see this as self-harm. He says that he later came to understand that it could be self-harm and voluntarily made disclosure in 2016.
4. He has provided an explanation as to why before 2016, he thought that he had not attempted self-harm. He further explained that in 2016 his understanding of what had happened in 1980 had changed. He made voluntary disclosure following that changed understanding. This is not evidence that allows me to find that the Applicant was dishonest or provided false or misleading information knowingly.
5. An alternative explanation for the wrong information provided may have been a misapprehension or misunderstanding on the Applicant's part before 2016 of the consequences of what had happened in 1980 when he was 17. In these circumstances, the grounds set out in s 24(2)(b)(i) may not have themselves have been sufficient to justify revocation of the licence.

1. The Respondent's submission is that it is not in the public interest for the Applicant to hold a firearms licence. What is the "public interest" is not defined in the Firearms Act. In Saxby v Commissioner of Police [2021] NSWCATAD 275, the Tribunal said, at [14]:

"The expression "public interest" is not defined in s 11(7), nor elsewhere in the Act, and 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. 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. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24]".

1. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [24], the Appeal Panel said:

"... public interest is a term embracing matters against others, of standards of human conduct and of the functioning of government and government instrumentalities et cetera established and accepted to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct to the interest of the individual or individuals.

The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal... ".

1. I accept the Respondent's submission that public interest weighs against the Applicant being granted a firearms licence. It cannot be said that there is "virtually no risk" in the Applicant holding a firearms licence having regard to the matters set out at [62] - [67] above. In these circumstances, I am satisfied that grounds for revocation of the Applicant's firearms licence would have been established on the basis of public interest.

1. The Applicant expressed concerns that the record contained a statement that he was not a "fit and proper person" and objected to that description. What is a "fit and proper person" for the purposes of the Firearms Act, however, depends on whether or not a person satisfied certain statutory criteria. These are not criteria that, in the circumstances of the case, involve the Applicant's character in a general sense. The conclusion of the Tribunal arises out of the matters concerning the Applicant's mental health following application of the statutory criteria and not because of any matter that can go to impugning his character in the general sense.
2. Consequently, any finding that the Applicant was not a fit and proper person within the statutory meaning, does not carry any imputation that he is not a fit and proper person in the general sense as a lay person may understand.

1. For the reasons set out at [47] - [52] above, the Respondent has made out her case for the revocation of the Applicant's firearms licence.

(1) The administratively reviewable decision of the Respondent under review is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

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.