Oliver v Commissioner of Police, NSW Police Force

John Oliver's background

1. John Oliver has previously held a firearms licence. He was issued a Category AB firearms licence in April 2014 for the genuine reasons of "target shooting" and "recreational hunting/vermin control". The licence was due to expire in May 2019, however the licence was suspended in 2015 and revoked in March 2016.
2. The Respondent's written submissions in this matter identified circumstances that were taken into account in regard to the revocation of John Oliver's firearms licence: The Applicant's husband John Oliver was the holder of a firearms licence until it was suspended in 2015 and subsequently revoked in 2016. The Tribunal affirmed the Commissioner's decision on 30 March 2017. ... The reasons for the suspension of John Oliver's licence included taking a pistol with magazines on a bus trip to Melbourne where Mr Oliver was a leader of the Reclaim Australia far right wing nationalist group. John Oliver was waiting to board a bus at Central Railway Station in Sydney which had been chartered to take members of Reclaim Australia to Melbourne for a rally. The Applicant was identified by police and he admitted he had a firearm in his locked bag that he had intended to stow in the baggage compartment of the bus. A search of the Applicant's bags revealed a pistol and two empty magazines, two orange marine flares and a pair of bolt cutters, all of which were seized by police.
3. The revocation was the subject of proceedings in this Tribunal and the Tribunal's decision is published as Oliver v Commissioner of Police, NSW Police Force [2017] NSWCATAD 95. In her findings, Senior Member Dinnen stated at paragraph [54]: With reference to the authorities discussed above, I am not convinced that the Applicant possesses the requisite knowledge of firearms safety, storage and registration requirements to be considered a "fit and proper person". Whilst his previous breaches may be considered technical or minor, when viewed with his actions in failing to take all reasonable safety precautions in his intentions on 17 July 2015 to transport his firearm, they demonstrate a lack of requisite knowledge or concern for the strict requirements of firearm licences and possession. I am also therefore not confident that the Applicant poses "virtually no risk" to public safety if he retained his firearms licence.
4. John Oliver made a new application for a firearms licence in May 2020. That application was refused, and he does not hold at firearms licence.
5. Material that is related to John Oliver was provided to the Tribunal on a confidential basis and orders were made under section 59 of the Administrative Decisions Review Act 1997 and section 64 of the Civil and Administrative Tribunal Act 2013. As a consequence, the Applicant has not been given access to that material.
6. [Not for publication]
7. The Respondent also noted that John Oliver is the subject of orders made by the Family Court in June 2019. Those orders stated: "19. The children shall not be bought into contact with the firearms by either parent. 20. The parents shall not allow firearms to be present within their households while the children are in the (sic) respective care".

Nature of Proceedings

1. Section 9 of the Administrative Decisions Review Act 1997 ("the ADR Act") provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred on the Tribunal by section 75 of the Act. The Tribunal's jurisdiction includes review of a decision by the Commissioner to revoke a firearms licence.
2. Section 63(1) of the ADR Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. It makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: see McDonald v Director General of Social Security (1984) 1 FCR 354 at 357.
3. The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all material first considered, together with any further relevant material so as to either confirm the original decision, vary it, or set it aside and substitute another. It was said in Drake v Minister for Immigration and Ethnic Affairs (1979) NSW 2 ALD 60 at [77] (albeit in another context) that: "[the] duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made."
4. Under section 38(2) of the Civil and Administrative Tribunal Act 2013, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
5. The standard of proof that applies in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. Accordingly, there is no burden or onus of proof on either party: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at paragraphs [28] - [34]. The civil standard applies even if the conduct in question may be criminal: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449.
6. The requirements for proof of questions of fact in administrative review proceedings generally were summarised by an Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at paragraphs [54] and [83]: "[54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on "logically probative material", and not on "mere suspicion or speculation", as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 ("Pochi") at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 ("Sullivan") at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it. … [83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on "logically probative material": Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17]."
7. In considering the Application, the Tribunal may have regard to any relevant material before it at the time of its review. In determining the review, 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 paragraph [23].

Applicable legislation

1. The Act sets up a scheme to license people to possess and use firearms. Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation. One of the underlying principles of that Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms. The underlying principles emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. In Keane v Commissioner of Police, NSW Police [2008] NSWADT 68 Judicial Member Handley observed at paragraph [44]: "44 The underlying principles of the Act stated in section 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 ('Ward'), at paragraph 27 to paragraph 28, Deputy President Hennessy said that in terms of public safety: "27. ... 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. 28. 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.""
2. Section 24(2)(a) of the Act prescribes 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.
3. The Respondent expressed concern about issues related to the Applicant's domestic circumstances. Section 11(4) of the Act provides: 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, …
4. The Respondent has also identified that the Applicant failed to comply with her obligation to notify of her change of residence within the prescribe time. Section 69 of the Act provides: 69 Requirement to notify change of address A licensee or the holder of a permit must, if there is any change in the licensee's or permit holder's place of residence, provide the Commissioner with the particulars of the change of address within 7 days after the change occurs.
5. Clause 17 of the Firearms Regulation 2017 ("the Regulations") provides: 17 Requirement to notify Commissioner of address where firearms are kept … (3) If there is any change in the address of the premises on which the holder of a licence or permit keeps any firearm, the holder of the licence or permit must, within 14 days after the change occurs, give the Commissioner notice in writing or in such other manner as may be approved - (a) specifying the address of the new premises on which the firearm is to be kept when not actually being used, and (b) specifying particulars of the arrangements that have been made by the licence or permit holder for the safe keeping and storage of the firearm on those premises, and (c) certifying that those arrangements comply with the requirements of the Act and this Regulation concerning the safe keeping and storage of the firearm. Maximum penalty - 50 penalty units. (4) Subclause (3) does not affect any requirement under section 69 of the Act to notify the Commissioner of a change of address in relation to a place of residence.
6. The Respondent also submitted that issuing a licence to the Applicant would be contrary to the public interest. Section 11(7) of the Act provides that, despite any other provision of section 11: "the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest."

Public interest

1. The expression "public interest" is not defined in the Act. It is well established that, in considering the meaning of that term, the Tribunal will have regard to the context in which it appears. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated, in regard to a decision to refuse to issue a security industry licence: "25 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."
2. The "public interest" allows issues going beyond the character of the Applicant to be considered. These may include concerns in relation to public protection, public safety, and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.
3. "Public interest" embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to "public interest" is '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 decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.
4. In considering the public interest, regard must be had to the underlying principle of the Act. 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. The Tribunal must give proper, genuine, and realistic consideration to each of the relevant matters. A decision maker should not shy away from an exercise of that discretion merely on the grounds that the licensee may suffer hardship and or inconvenience: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at paragraph [22].
5. The public needs to be confident that those who are afforded the privilege of a firearms licence will comply with the legislative requirements.
6. As the Appeal Panel said in Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 at paragraphs [24] to [25]: 24. The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the "overriding need to ensure public safety": Firearms Act s 3(1)(a). Public safety is improved by "imposing strict controls on the possession and use of firearms" and by "promoting the safe and responsible storage and use of firearms": Firearms Act s 3(1)(b). The objects of the Act include "to establish an integrated licensing and registration scheme for all firearms;" "to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;" and "to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms": Firearms Act, s 3(2)(b), (c) and (d). 25. In that statutory context it is uncontentious that a relevant consideration is the applicant's previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant. ...
7. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at paragraph [28] Hennessy DP 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 formulation has been held to also apply to the public interest test: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at paragraph [23].
8. 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 considered. Minimal, fanciful, or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110. Risk to the public includes risk to the Applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.
9. In GGW v Commissioner of Police, NSW Police Force [2024] NSWCATAP 88 the Appeal Panel recognised at paragraph [45]: The relevant question in relation to the public interest, as the Tribunal recognised, is whether issuing a licence to the appellant would entail a real and appreciable risk to public safety. The evidence did not support a conclusion that such a risk existed.
10. Accordingly, the question arises as to whether there is enough evidence before the Tribunal to draw an inference that there is a real and appreciable risk to public safety, as opposed to a fanciful risk.

Material before the Tribunal

1. The Respondent relies on bundles of material filed pursuant to section 58 of the ADR Act ("the section 58 material"). This material includes a number of records held in the Respondent's electronic database ("COPs"). Mr Zoppo, the Respondent's solicitor, also provided written and oral submissions.
2. The Applicant relies on her own evidence. She attended the hearing, gave evidence and was cross-examined. She also provided written documentation in regard to her membership of the SSAA, arrangements for storage of her firearms with Kennards Self Storage in Newcastle and a personal reference from Michael Walter, Licensee of First National Real Estate Avenue, Pymble. She also made written and oral submissions.

The Respondent's case.

1. The Respondent does not contend that the Applicant is not a fit and proper person to hold a firearms licence. However, as noted, the Respondent relies on material related to the Applicant's husband, the finding that he could not be considered to be a fit and proper person to hold a licence, and the concern that he may have access to the Applicant's firearms should the licence be reinstated.
2. The Respondent also noted that John Oliver is the subject of orders made by the Family Court which prevent firearms being stored on premises where his children might attend.
3. The Respondent has also expressed concerns relating to the Applicant's suitability to hold a firearms licence for two main reasons. Firstly, the respondent contends that she failed to comply with her obligations under section 69 of the Act and clause 17 of the Regulations.
4. The Respondent has presented evidence that the Applicant updated her residential address with Roads & Maritime Services to her current address in March 2021. However, she did not notify the Firearms Registry that her residential address and nominated safe storage location had changed until 30 September 2021. As noted, the
5. The Respondent has also identified that the Applicant failed to comply with her obligation to notify of her change of residence within the prescribe time. Section 69 of the Act requires that a licensee is to notify of a change of residence within 7 days after the change occurs. Clause 17 of the Regulations requires notification of details related to the address of the new premises on which the firearms are to be kept within 14 days after the change occurs.
6. The Respondent has also identified that the Applicant may no longer have a genuine reason for holding a firearms licence. As noted, the Applicant held a Category AB firearms licence for the genuine reason of Recreational Hunting/Vermin Control. Her letter of authority to shoot on a property at Merriwa is no longer current as the authority was given by John Oliver, who no longer owns the Merriwa property. Further, the Applicant has indicated that she only wishes to have a firearms licence for the purposes of target shooting. That purpose does not align with the genuine reason for which the Applicant was granted a firearms licence,
7. The Respondent submitted that it appeared that the Applicant intends to carry out activities that were not authorised under the conditions of the revoked licence.

The Applicant's case.

1. The Applicant's evidence she is a law abiding citizen and she denies that her husband would have any access to her firearms if the licence is returned.
2. Her evidence is that she intends to store the firearms in Newcastle, which is 52 kilometres away from her residential premises and that the key would be stored in a key cabinet at her office in Sydney. She said that the key cabinet is lockable and that her husband does not have access to the key cabinet.
3. In her request for an internal review the Applicant noted that:

• She is a well-respected, professional woman who has never been charged or convicted of a crime and is a law abiding citizen.
• She is a member of the SSAA Sydney branch for the genuine reason of "target shooting, hunting, collecting and hunting other".
• Regarding the genuine reason for holding a firearms licence, she does not dispute that John Oliver gave her permission to shoot on the property at Merriwa when he owned it, or that he sold the property. However, she stated that he sold the property to a friend. She stated that the new owner told her that she could continue to shoot at the property.
• She has taken steps to a secure a safe storage address at Kennards located in Newcastle to allay any fears that her firearms would not be stored safely.
• John Oliver has not had access to her firearms at any point in time.
• She stated that John Oliver has not been convicted of any criminal offence in over 20 years. She knows him as a kind and generous man, a loving father, and a loving husband.

1. I understand that she maintains this position.

Failure to notify of change of address

1. The obligations imposed by section 69 of the Act and clause 17 of the Regulations are clear. The public expectation is that the privileged holders of firearms licences will comply with their statutory obligations. The public's confidence in the licensing scheme depends on meeting that expectation.
2. In Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226 Hennessey DP noted at paragraph [19] that if the breaches of the Act or Regulation are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety.
3. In Bevan v Commissioner of Police [2004] NSWADT 1, Judicial Member Higgins stated at paragraph [26]: ... Parliament has given a clear indication that the Commissioner is to revoke or refuse a licence, unless the Commissioner is satisfied that the contravention was merely a technical breach, the conduct posed no risk to public safety and there was no evidence that the licence holder or applicant for a licence would in future engage in conduct that posed a risk to public safety (see s3(1)(a) of the Act). (Tribunal's emphasis) The Applicant's contraventions in the present matter were not merely a "technical" breach; the Act sets out clear obligations and the Applicant has failed to comply with those obligations over a period of several years. Her continued failure to comply cannot be disregarded as a mere oversight ...
4. In the present matter, I am satisfied that the Applicant failed to notify the Firearms Registry of a change to her safe storage address, contrary to section 69 of the Act and clause 17 of the Regulations. There is no reason to find that the failure to notify the Respondent of her change of address was not intentional. However, I agree with the views that Ms Higgins expressed in Bevan v Commissioner of Police. In my view, the Applicant has demonstrated a lack of understanding of the obligations imposed upon her as a firearms licence holder. At a minimum, the Applicant has demonstrated inattention to her obligations as a licensee under the Act.
5. If she is to retain her licence, it is my view that she would need to undertake a refresher course in relation to her obligations under the Act. If she completes such a course successfully, it is my view that there would be virtually no risk to public safety if she were to hold a firearms licence.

Whether the Applicant may not personally exercise continuous and responsible control over firearms because of her way of living or domestic circumstances.

1. The Appeal Panel dealt with this issue in GGW v Commissioner of Police, NSW Police Force. The Appeal Panel stated at paragraph [51]: [T]here was no probative evidence before the Tribunal to support the finding that issuing a licence to the appellant would entail a real and appreciable risk to public safety or, on that basis, that it is contrary to the public interest to issue him with a licence. To the extent that the Tribunal stated that "it is not possible to conclude that issuing an AB licence to the applicant would not entail any real or appreciable risk to public safety" (emphasis added), it appears to have impermissibly imposed an onus on the appellant, and asked itself the wrong question.
2. In that matter, the evidence did not support a conclusion that such a risk existed. In the present matter it is necessary to consider whether there is any probative evidence of a risk that the Applicant's husband would pressure the Applicant to provide him with firearms if she were to be permitted to hold a firearms licence. The evidence does not support that conclusion.
3. There is no suggestion that the Applicant is unable to comply with the safe storage requirements. The evidence suggests that she has taken the precaution of arranging for storage of her firearms over 50 kilometres from the home that she shares with John Oliver. She has also indicated that she will store the key to the storage at her office in Sydney. I am satisfied that John Oliver will not have access to the Applicant's firearms.
4. In my view, there is no reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of her way of living or domestic circumstances.

Genuine reason for holding a firearms licence

1. The Applicant needs to establish that she has a genuine reason to hold a firearms licence. The revoked licence was held for the purposes of recreational hunting/vermin control, supported by permission to shoot on rural land. The Applicant's husband provided permission to shoot on a property that he owned at the time. The Applicant's husband no longer owns that property.
2. The Applicant stated that the new owner of the property told her that she could continue to shoot on that property. However, no written authority has been provided.
3. The Applicant's evidence is that she only wants to engage in target shooting. She provided correspondence dated 17 August 2022 evidencing that she had joined the SSAA. The membership covers several aspects of firearms use, including hunting. It may be that this is sufficient to establish a genuine reason for holing a licence. However, this aspect will need to be clarified. Further, it is not clear whether the Applicant's SSAA membership is current, so this will also need to be clarified.
4. If she no longer wishes to hold a firearms licence for the purposes of recreational hunting/vermin control, then she does not have the genuine reason for which the licence was granted.
5. With the exception of the concerns that I have expressed in relation to the Applicant's knowledge of her obligations as a licensee and the question of her genuine reason for holding the licence, I do not consider that there are any issues of fitness and propriety or the public interest that would prevent the Applicant holding a firearms licence.
6. In the circumstances, it is my view that the decision under review should be set aside, and the matter should be remitted for redetermination by the Respondent, taking into account the views that I have expressed above.
7. If the Applicant completes a course in relation to her obligations as a licensee successfully and if she provides evidence to show that she has a genuine reason for holding the licence, I recommend that the Applicant's category AB firearms licence under the Firearms Act 1996 should be reinstated.

Order 1. The decision under review is set aside. 2. The matter is remitted for reconsideration by the Respondent in accordance with the recommendations of the 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. 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: 30 May 2024