Meggit v Commissioner of Police

NCAT Administrative and Equal Opportunity|2022-09-20

Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the Confidential Statement of Senior Constable Kaluski is not to be published or released to the Applicant or the public.

Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the contents of the Confidential Bundle of documents is not to be published or released to the Applicant or the public.

The contents of all paragraphs in these Reasons marked "[Not for publication]" are not to be published or released to the Applicant or the public.

Introduction

On 11 March 2021 the applicant applied for a Category AB firearms licence. The application was refused on 19 April 2021. An internal review was conducted and the decision to refuse the licence was affirmed on 19 April 2021. The applicant seeks administrative review of that internal review decision which refused her a category AB firearms licence.

Background

The internal review decision states, in part, In considering your authorization for firearms, you have come to adverse notice for domestic violence related issues on numerous occasions recorded by police from 2019 to 2021... I acknowledge it appears you are recorded as the victim in the majority of the domestic violence incidents reported to police however, despite this you did not wish for police to speak to your ex-partner, you did not wish to provide a statement or apply for an apprehended violence order. On 7 February 2021 police attending an alleged domestic incident between you and your ex-partner warned you about making false reports or exaggerating stories in relation to your domestic situation as they believed these reports, were in aid of your upcoming family law court hearing. While I concede there have been no further incidents reported to police since February 2021, it is unknown if the family law court hearings between you and your ex-partner have been finalised in relation to your property disputes. Your access to firearms must be considered in light of reported domestic incidents and their potential risk. I also believe the false information you provided to police, and you're being prescribed medication for a mental health condition due to your domestic situation, raise significant concerns for public safety should you be issued with a licence.
In her Administrative review application form submitted to this Tribunal on 23 May 2022, the Applicant stated: I own a 44 acre property at Binda now for which I need a firearms licence to protect my livestock. I relocated to the area over a year ago to start a new life away from my ex-husband. I maintain that I am the victim in the events of 2021 and that I don't believe I exaggerated any of the events nor lied to the police, I was genuinely fearful for my safety, so I chose to relocate instead. There have been no records since this date for myself and I feel it is discriminatory not to consider my permit given my full time location and changed circumstances both of which are not contravening the public interest.

Respondent's submissions

The Respondent submits: The Decision should be affirmed in light of the Applicants domestic circumstances…Since the Decision, the applicant has relocated from the Eastern Beaches area to a rural property in Binda NSW. She resides with her current partner, Mr John Maguire.
The respondent relies on the confidential evidence of Senior Constable Kaluski and Detective Inspector Pistola. The respondent also relies on confidential submissions and those are contained in a Confidential Bundle of documents.
The Respondent submits: Mr Maguire is highly likely to be able to access any firearms Ms Meggitt might acquire, if she were to be granted a licence. The prospect of Mr Maguire having access to firearms provides reasonable cause to believe that Ms Meggitt may not exercise continuous and responsible control over firearms…The criminal information relating to a person does not have to rise to the level of a conviction... Although the criminal intelligence or information in this proceeding does not directly relate to the applicant for the purposes of section 11(5A) of the Firearms Act, the fact that there is criminal intelligence and information relevant to her application informs the discretion of whether issuing the licence is against the public interest under section 11(7).
The Respondent concludes its written submissions by stating: In these proceedings, the applicant is at a disadvantage as the respondent submits that the Tribunal's decision must turn primarily on the documents within the Confidential Bundle. The application for a firearms licence must be refused under section 11(4)(a) of the Firearms Act due to her living and domestic circumstances, or that it should be refused exercising the discretion to do so in the public interest under section 11(7).

Confidential evidence

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There are some police Event Reports concerning the Applicant and her ex-husband which form the basis of the original licence refusal decision. They are barely mentioned in the Respondent's written submissions other than the statement that "The Applicant is still involved in an ongoing domestic dispute". At the hearing, the Respondent did not pursue, quite properly in my view, those event reports. They are minor and vague in detail, the divorce is finalised, the property settlement is imminent, and the child custody arrangements are agreed. Moreover, the Applicant rejects the allegations that she lied or exaggerated her complaints to the police at the time and the evidence to the contrary, about a single incident, is less than strong.

Applicant's evidence

As identified by the Respondent, the applicant is at a disadvantage because she is not aware of the confidential information. At the Tribunal hearing she gave sworn evidence and was cross examined. She said, "I am a domestic violence victim". She said she had started a new life near the rural town of Crookwell. She has a 44-acre property which she uses to "rehome" animals as a volunteer. She currently has nine animals on the property, these include wild horses, dogs, and orphan lambs. She said the animals are subject to attacks by foxes and feral pigs. She said that she has foals which are at particular risk from the feral animals and that baiting is not an option. She said that she needs a firearm to be able to deal with these feral animal attacks on her own animals.
The Applicant said she was aware of Mr Maguire having a history of driving whilst under the influence of alcohol on one occasion but was not aware of any other criminal matters. She said they have lived together for 18 months, and she is not aware of any problems with him. She said that she was not aware of any criminal or untoward activity by Mr Maguire. She said she is an upstanding member of the community, a volunteer with the programme known as RUOK? and has been in constant employment and is currently a business manager with the National Australia Bank where has she has been employed for 33 years. She works remotely from her home. She said that she was happy to do any training or other requirements or be on probation for a firearms licence. She said that the previous domestic issues considered in the internal review are no longer relevant. She said that these were caused by her ex-husband and that the family law matters are now almost completely resolved. She said that her life is now on track and going well and that she has no mental health problems. She said that her divorce is finalised, and they were just waiting to complete the property settlement. She said that her 17-year-old son lives with his father and is well. She said that her 13-year-old daughter lives with her and is well.
The Applicant said that Mr McGuire helps her with the house but is not involved with the animals. She said that she is presently planning construction of a new house and that were she to be granted a firearms licence she would ensure secure storage was included. She currently lives in a large, shed structure which is fitted as a domestic house, and she could secure weapons appropriately in those premises. She said she would get a gun safe, and she would purchase a rifle. She said that she would take advice on how to do those things and was willing to comply with any conditions imposed in respect of them. She said feral pigs and foxes were attacking and injuring her vulnerable animals and she required a firearm to deal with those attacks.

Legislative framework

The general principles and objects of the Firearms Act 1996 are set out in s 3 which provides, relevantly: 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
Section 11 of the Act relevantly provides: (1) The Commissioner may issue a licence in respect of an application, or refuse any such application. … (3) 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, … (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.

Consideration and findings

Under s 63 of the Administrative Decisions Tribunal Act the Tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The Tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77).
The Tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct (McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357). As the use of the word "may" in s 11(1) of the Firearms Act makes clear, the Commissioner has a discretion to issue a licence. The Act provides no explicit guidance on how that discretion should be exercised.
Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearm possession and use is a "privilege that is conditional on the overriding need to ensure public safety". Consistently with that approach, the Act confers on the Respondent the ability to refuse a firearm licence in circumstances where it is considered that the holding of a licence is not in the public interest.
The Appeal Panel has described the "public interest" as "an inherently broad concept giving the appellant [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual": Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25]. The concept is invoked in order to, "ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation": Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at 681. In this context the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Huckel v Commissioner of Police [2008] NSW ADT 347, [41].

Way of living or domestic circumstances: section 11(4)(a)

Section 11(4)(a) of the Act provides that a licence must not be issued if the Commissioner, and hence the Tribunal on review, has reasonable cause to believe that an applicant may not personally exercise continuous and responsible control over firearms because of the applicant's way of living and domestic circumstances.
In LY v Commissioner of Police, NSW Police [2004] NSWADT 115 at [41]-[43], the Tribunal, in considering the term "reasonable cause to believe" referred to Austrac Operations Pty Ltd v New South Wales (2003) FCA 1013 and New South Wales v Taylor [2001] HCA 15; (2001) 178 ALR 32, and determined 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 she may not personally exercise continuous and responsible control over her firearm.
The Respondent submitted that the Applicant may not personally exercise continuous and responsible control over firearms because of her way of living and domestic circumstances. This submission principally refers to the Respondent's concerns in relation to Mr Maguire. In Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149 at [31] 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 the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence. While there was no evidence of any history of domestic violence between the Applicant and Mr Maguire, Mr Maguire is known to police for other reasons. Based on that knowledge the Respondent submits, "The prospect of Mr Maguire having access to firearms provides reasonable cause to believe that Ms Meggitt may not exercise continuous and responsible control over firearms". In my view, that submission is an example of the logical fallacy post hoc ergo propter hoc, a Latin phrase meaning "after this, therefore because of this" and I do not accept that a prospect can provide a reasonable cause for that belief.
I had the benefit of observing the Applicant give sworn evidence and be cross-examined. I asked questions of her myself. I found her to be an impressive and credible witness. I accept her evidence. She moved to the country to start a new life. She is a mature woman. She holds a senior position with a major bank with which she has been employed for 33 years. She is active as a charitable volunteer in the community, and she uses her 44 acre rural property to save and rehome vulnerable animals. She faces the threat of attacks on those animals by feral pigs and foxes. She needs a firearm to protect her animals. Her 13-year-old daughter lives with her and her current partner. I have examined the confidential information. It is does not rise above the level of speculative hearsay. I consider the risk it raises is theoretical. I am not satisfied there is reasonable cause to believe that Mr Maguire may take advantage of their domestic circumstances and that the Applicant may not personally exercise continuous and responsible control over her firearm.

The public interest: Section 11(7)

The expression "public interest" is not defined in s 11(7) or elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives 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 choosing 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].
The Applicant requires a firearm to protect the animals that she rehomes and keeps on her property which are vulnerable to attacks by feral animals. She claims and I accept, that relying on help from neighbouring property holders and baiting of the feral pigs and foxes is neither timely nor practical. She works from home and can quickly respond to attacks if she has a firearm available. Private interests, however, are not the only matters to be taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. Consideration of public interest allows for matters going beyond an applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]. The concept includes standards acknowledged to be for 'the good order of society and for the well-being of its members': Director of Public Prosecutions v Smith [1991] 1 VR 63. Accordingly, the Applicant's genuine reason for holding a firearms licence, cannot not be given priority over the public interest.
Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) 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. Although Ward was a case on the "fit and proper person" test, the principle in Ward has been held to apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23] and Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [77]. 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, but 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 to the effect that the licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. Since Ward, Hennessy DP has cautioned against applying that language in a mechanistic way: see AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].
In Webb v Commissioner of Police, NSW Police Force [2004] NSWADT 110 at [32], Montgomery JM, when considering the question of public safety, stated that, only real and appreciable risk needs to be taken into account and that minimal, fanciful or theoretical risk can be excluded from consideration.
The Applicant gave sworn evidence and was cross-examined. She is an impressive and credible witness. I accept her evidence. She moved to the country to start a new life. She is a mature woman and holds a senior position with a major bank with which she has been employed for 33 years. She is active as a volunteer in the community, and she uses her 44-acre property to save and rehome vulnerable animals. She faces the threat of constant attacks on her animals by feral pigs and foxes and has provided photographic evidence of such attacks. She needs a firearm to protect her animals. Her 13-year-old daughter lives with her and her current partner. I have examined the confidential information. It is speculative hearsay. I consider the risk it raises is theoretical. I am satisfied the Applicant will personally exercise continuous and responsible control over her firearm. I am satisfied it is in the public interest for the Applicant to be issued a Category AB firearms licence.
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In summary, while the Tribunal can never be completely satisfied that there is no risk in an applicant having a firearms licence, in the circumstances I am satisfied that the risk is not sufficiently high that it should prevent the Applicant from holding the licence. On balance, I do not think the evidence warrants a finding that it would be contrary to the public interest for her to hold a firearms licence, and I so find. Similarly, I am not satisfied there is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over her firearm, and I so find. In conclusion, I find the correct or preferable decision is to issue the Applicant with a Category AB firearms licence.

Decision 1. The decision under review is set aside. 2. A Category AB firearms licence is to issue to the Applicant.

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: 09 November 2022

At a glance

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Judgment (14 paragraphs)

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Legislation Cited (4)

Cases Cited (8)

Cited By (7)