O'Neill v Commissioner of Police, NSW Police Force

Applicant's case

1. The Applicant contends he should be granted a firearms licence because he is no danger to the community, he respects police, he is a fit and proper person to hold a licence (having never been convicted of a criminal offence) and he requires firearms to control pests on his rural property.
2. The Applicant submits that the actions of certain police he has interacted with has resulted in false, slanderous and hearsay allegations about him being recorded in police records. He submits he has all times followed relevant directives of the firearms registry and has only ever dealt with injustices against him by writing letters.

Respondent's case

1. The Respondent contends the correct and preferable decision is to refuse the firearms licence application because granting a licence would not be in the public interest (relying on s 11(7) of the Firearms Act 1996 (the Firearms Act)), including on the basis the Applicant is not a fit and proper person to hold a licence due to the Applicant's domestic circumstances, character and conduct.

Jurisdiction

1. The Tribunal has jurisdiction to review an administratively reviewable decision: s 55 of the Administrative Decisions Review Act 1997 (the ADR Act). Section 75 of the Firearms Act provides that applications may be made to the Tribunal for administrative review of a decision to refuse a firearms licence. The Tribunal has jurisdiction to hear and determine this application for review.

Administrative Review

1. When considering an application for review the Tribunal is to decide what is the correct and preferable decision having regard to the material before it (s 63(1) of the ADR Act). In doing so the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) of the ADR Act). The time at which the correct and preferable decision is determined is when the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].
2. The Tribunal is required to base its findings of fact on logically probative material: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62 and 68; and Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 at [5]-[8], [15]-[17].

Relevant Legislation

1. The underlying principles of the Firearms Act are set out in s 3 and include: (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…
2. Section 11 of the Firearms Act allows the Respondent to issue or refuse a firearms licence application relevantly providing: (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, and … (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.

Applicant's history

1. The Applicant held a Category AB firearms licence from 2008. The licence was briefly suspended in 2015. Following the 2022 incident described below (at [17(6)]) the Applicant's firearms licence was suspended and in December 2022 the licence suspension was lifted and the following condition was imposed on the licence: The licence holder is prohibited from possessing or storing firearms, firearm parts and ammunition at any location where [the Applicant's wife]…resides or frequents.
2. Material before the Tribunal, including police records, details a number of interactions between the Applicant and members of his family that resulted in interactions with the police, relevantly: 1. In 2001 the Applicant slapped his wife across the face, in the presence of their 14 year old son, because the Applicant did not like what she said. An apprehended violence order (AVO) was issued against the Applicant as a result of this incident which later expired. 2. In 2002 the Applicant's son reported an interaction with his father to his school and the police. The Applicant stated he slapped cards out of his son's hand to get his attention. 3. In 2014-2015 the Applicant was in conflict with his brother regarding the care of their father who lived on the same property as the Applicant's brother and following the death of their father there was also conflict over the estate. On 5 January 2015 there was an incident at the brother's property which resulted in police being called and an AVO was issued against the Applicant which later expired. The issuing of that AVO resulted in a short suspension of the Applicant's firearms licence. 4. In 2018 the Applicant reported an incident to police that occurred while he and his wife were travelling. The Applicant gave evidence that he reported the incident to police because his wife had threatened to tell police lies about him. 5. In 2020 the Applicant and his wife had a physical interaction at their home resulting in police being called and an AVO was issued against the Applicant's wife. 6. In April 2022 the Applicant and his wife had an argument that escalated to the point he was locked out of his home. He attempted to get back into his house via a bathroom window which resulted in the window breaking. Following this incident an AVO was issued to the Applicant that was later revoked.
3. Given this history of domestic incidents, if the Tribunal considered it appropriate to issue the Applicant with a firearms licence, the Tribunal agrees with the Respondent that the condition imposed by the Respondent on the Applicant's firearms licence was a proportionate response to the risk to public safety caused by the Applicant's domestic circumstances.
4. In September 2023 the Applicant went to the Casino police station in order to arrange an inspection of safe storage arrangements for firearms he had prepared at a neighbour's property in order to comply with the condition on his licence. This resulted in a verbal altercation between the police officers at the station and the Applicant. During this incident the Applicant referred to a police officer he had previously interacted with as a "dirty cop". The circumstances of this incident were taken into account in the internal review decision of January 2024 to revoke the Applicant's licence instead of maintaining a licence with the condition.
5. On the material before the Tribunal, it is clear the Applicant is aggrieved at the actions of many police officers he has interacted with over several of the incidents described above, with the result that the Applicant considers several police have recorded false information about him and the incidents described above. These include police officers he has no contact with before the relevant incident who the Tribunal considers would have no reason to falsify information at incidents they attended as observers.
6. The Applicant has made formal complaints about police actions and in submissions to the Tribunal the Applicant alleged the police knowledge of these complaints were considerations taken into account by the Respondent in denying him a firearms licence. There is no objective evidence before the Tribunal to support the allegation that irrelevant considerations were taken into account in firearms licensing decisions made by the Respondent.
7. The Applicant contends police officers acted beyond their powers in dealing with his firearms licence concurrently with court proceedings he considers vindicated him, which he describes as "trickery by police". He also raised concerns about the actions of police in contacting his employer before his employment ended in 2018.
8. On the material before the Tribunal, the Tribunal cannot be satisfied there is anything untoward in the actions of police in exercising their functions in relation to firearms regulation in this matter.

Public safety and risk

1. Under the Firearms Act, public safety is the primary consideration: Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134. The interest of an applicant in obtaining a firearms licence is subordinate to that consideration: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276.
2. In Ward v Commissioner of Police [2000] NSWADT 28 Deputy President Hennessy said (at [27] - [28]): …The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.

The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk. This risk consideration applies to both the fit and proper person and public interest tests: Martin at [69].

Is it in the public interest for the Applicant to hold a licence?

1. The term public interest is not defined in the Firearms Act. In Constantin v Commissioner of Police [2013] NSWADTAP 16 the Appeal Panel stated (at [33]): The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.
2. The public interest considerations in s 11(7) of the Firearms Act can include an applicant's fitness or character that are mentioned separately in s 11(3)(a), see Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 368 (at [93]): Such considerations may include an applicant's fitness or character if that is relevant to an assessment of the public interest (as it would usually be), notwithstanding that an applicant's fitness or character is a separate matter to be considered under s 11(3)(a).
3. The Respondent contends the Applicant is not a fit and proper person to hold a firearms licence under s 11(7) of the Firearms Act. Whether an applicant is a fit and proper person to hold to licence is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, NSW Police Force [2014] NSWCATAD 184; is to be determined by reference to 'the activities in issue': Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82]; and gauged in 'light of the nature and purpose' of those activities: AJO v Director-General of Transport [2012] NSWADT 101 at [26].
4. For firearms licences, the Tribunal is required to form "a positive state of satisfaction" that an applicant is a fit and proper person who can be trusted to possess firearms without danger to public safety or to the peace: Commissioner of Police, New South Wales Police Force v EMB [2021] NSWCATAP 63 at [45].
5. The Applicant's history of domestic incidents detailed above is such that there is a risk to public safety if he were to possess firearms. In the opinion of the Tribunal, the Applicant's conduct during the 2001 incident alone would, despite the time since the incident, be sufficient to come to that conclusion on the basis of his character. However, the Tribunal also takes into account the relevant history of the Applicant detailed above, including as the recipient of AVOs, even if those proceedings were ultimately withdrawn: see Hariri v Commissioner of Police [2022] NSWCATAD 5 (at [59]-[60]) where the Tribunal stated: As to the domestic violence allegations, in Grenfell v Commissioner of Police [2021] NSWCATAD 124 (Grenfell), the Tribunal recently stated at [31]: It is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration. The Tribunal accepted 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 or where, as here, there is no misuse of a firearm; see [103]. In Grenfell, the Tribunal concluded, at [104] that it was not in the public interest for the Applicant to hold a firearms licence in circumstances where the Applicant was subject to a provisional AVO that was, as here, later withdrawn. It is immaterial that those matters did not give rise to any proven charges: see Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCAT 31 at [62]-[64].
6. Further, a firearms licence holder must interact with police regularly and in a positive and constructive manner in order for the firearms licensing system to operate effectively. The Applicant's strong negative bias towards the police as evidenced in the material before the Tribunal, including in the submissions made by the Applicant, is such that there is an appreciable risk to public safety if he were to be issued with a firearms licence because the Tribunal cannot be satisfied the Applicant can interact with police in relation to a firearms licence and its requirements in a positive and constructive manner.
7. Therefore, in all the circumstances, it is not in the public interest under s 11(7) of the Firearms Act for the Applicant to hold a firearms licence.
8. It follows that the correct and preferable decision is to affirm the decision of the Respondent to revoke the Applicant's firearms licence.

Order 1. The decision under review is affirmed.

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: 08 July 2024