Oliver v Commissioner of Police, NSW Police Force [2025] NSWCATAD 130

1. This is an application for review of a decision of the Commissioner of Police, NSW Police Force, the respondent in these proceedings ("Respondent") to revoke a firearms licence held by the applicant ("Applicant"). The Applicant contests that revocation.

1. The Applicant and her husband, John Oliver, have been married since about 2020. They have known each other since high school.
2. The Applicant's husband, before the date of his marriage to the Applicant, had been the holder of a firearms licence. It was suspended in 2015 and revoked in 2016. The Civil and Administrative Tribunal ("Tribunal") affirmed the Respondent's decision to revoke the licence on 30 March 2017 (Oliver v Commissioner of Police, NSW Police Force [2017] NSWCATAD 95).
3. The suspension of the licence previously held by the Applicant's husband occurred after he carried a pistol with empty magazines and certain other items to a political rally. On his way to the rally with these items, the Applicant's husband had been identified by NSW Police and the pistol and magazines seized.
4. The Tribunal did not consider that the husband's political activity and his intention to attend the rally in question was particularly relevant to its determination, because of a finding that he did not intend to take the firearm to that event. However, the Tribunal found that he did not take all reasonable precautions to ensure the firearm's safe keeping and that it was not stolen or lost.
5. On 7 May 2020, the Applicant's husband made a new application for a firearms licence. That application was refused.
6. On 7 May 2020, the Applicant made application for a Category AB firearms licence. In her application, she stated a "genuine reason" for possessing or using a firearm. That genuine reason was recreational hunting vermin control supported by permission from a landowner to shoot on a property. That property was rural land. The landowner was her husband.
7. The Applicant was issued with a Category AB firearms licence on 28 July 2020. That licence was to expire on 11 September 2025.
8. On 10 September 2020, the Applicant updated her residential address and advised the Firearms Registry of the change of address on 13 October 2020.
9. On 23 December 2020, the property owned by the Applicant's husband on which the Applicant had authority to shoot was sold.
10. On 5 February 2021, three firearms were transferred into the name of the Applicant.
11. On 19 March 2021, the Applicant changed her residential address again with the Roads and Maritime Authority. The Applicant did not, however, notify the Firearms Registry that her residential address and nominated safe storage location had changed until 30 September 2021.
12. On 24 March 2021, the Applicant acquired three firearms that were previously registered to her husband. There had been previous transfers of these firearms from her husband to other parties before the transfer to the Applicant.
13. On 13 July 2021, the NSW Police attended and carried out a safe storage inspection at the Applicant's home. The NSW Police advised her that she was required to notify the Firearms Registry of her residential address and safe storage address following her change of address on 19 March 2021.
14. The Respondent says that in the course of undertaking the inspection, the NSW Police formed the view that the Applicant was not competent with handling of firearms and appeared "nervous" when opening the safe and "struggled" with the keys. They also observed the safe was not secured. They returned the following day and confirmed that the safe had been properly secured. Again they observed that the Applicant had trouble opening the safe and appeared "nervous".
15. The NSW Police noted at the time of their inspection that three of the firearms registered in the name of the Applicant had been previously owned by her husband. They said they had concerns about whether he had access to the firearms now registered to the Applicant.
16. The Applicant's firearms licence was revoked on 3 August 2022.
17. On 30 August 2022, the Applicant emailed the Firearms Registry stating that she was now a member of the Sporting Shooters Association of Australia for target shooting, hunting, collecting and hunting. She also provided a copy of an agreement with a self storage business dated 18 August 2022 as the nominated safe storage address should she be successful in her appeal.
18. The Applicant had obtained a Certificate of Firearms and Hunting Safety Awareness issued by the Department of Primary Industries and sent a copy to the Firearms Registry on 1 August 2024. She also sent a photocopy of a membership card for the Sporting Shooters Association of Australia expiring on 31 August 2024 for target, hunting, collector and other.
19. On 17 August 2022, the Applicant applied for an internal review of the decision to revoke her firearms licence. On 22 February 2022, the decision on internal review was made, affirming the revocation of the Applicant's firearms licence.
20. The Applicant appealed the decision to revoke her licence to the Tribunal. The Tribunal remitted the decision of 22 February 2022 to the Respondent for reconsideration under s 65 of the Administrative Decisions Review Act 1997 ("ADR Act"). Following remission, the Respondent on 29 August 2024 affirmed the decision to revoke the Applicant's firearms licence.
21. On 15 August 2024, a delegate from the Firearms Registry had obtained a copy of the Applicant's completed in "NSW Police Force Declaration Person shooting on an Approved range or undertaking firearms Safety training Course" P-650 form. That form was signed by the Applicant on 1 August 2024. It contained an answer "no" to the question: "Have you, in NSW or elsewhere, been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked?".
22. By application dated 10 September 2024, the Applicant sought the Tribunal's review of the remitted decision made by the Respondent on 29 August 2024.

1. Under s 75(1)(c) of the Firearms Act 1996 (NSW) ("Firearms Act"), a person may relevantly apply to the Tribunal for administrative review under the 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]).
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 provides:

"(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

......

(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

.......

(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 Regulation 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 she to apply for a licence, is relevant to determining whether the revocation of her licence should stand or not.
2. The questions for determination for the Tribunal are as follows:

(1) whether the Respondent can form the opinion that the Applicant is not a "fit and proper person" to hold a licence;

(2) whether the Commissioner has 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;

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

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

(5) whether the Respondent can be satisfied that it is not in the public interest for the licensee to continue to hold the licence.

1. The first question for determination is 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 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. She submits that the Applicant showed little regard to the statutory requirements of notifying her change of address when she moved addresses in March 2021. It was after the NSW Police attendance at her address on 13 July 2021 to carry out an inspection of her firearms that they advised her of the need to tell the Firearms Registry about the change of her residential address and safe storage address. The Applicant did not do this until 30 September 2021 some six months after she had changed address and changed her safe storage address.
5. The Respondent further says that the Applicant has "repeatedly provided false information in her application". This included an answer of "no" to the question as to whether she had been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked. That answer given on 1 August 2024 was not correct because a previous licence she held had been revoked on 3 August 2022.
6. She had also not provided a letter of authority from any person supporting a genuine reason of "Recreational Hunting/Vermin Control" granting her permission to shoot on rural land. The Respondent questioned whether this was a genuine reason. The rural land on which she previously had permission to shoot was sold on 23 December 2022.
7. Further, she had not made application to add "Sport/Target Shooting" to her firearms licence nor make any request to remove her stated genuine reason of "Recreational Hunting/Vermin Control".
8. The Applicant claims these matters arose due to limitations in the application process preventing her from amending previous licence details. The Respondent says that these explanations do not mitigate her actions.
9. There is no suggestion by the Respondent that the Applicant's conduct described above was criminal. However, even if the defaults in question resulted from negligence or oversights, I am in agreement with the Respondent's submission that the defaults on the part of the Applicant in not diligently attending to the requirements of the legislation are relevant to making a determination as to whether or not she is a "fit and proper person" in the statutory sense. These defaults include not notifying her change of address after March 2021 until 6 months later, not disclosing on 1 Augst 2024 the previous revocation of her licence and failing to update or adding what her "genuine reason" for possession and use of firearms was. These matters evidence what, at best, can be said to be a casual approach to compliance with the legislation.
10. For the reasons set out at [48], I find that the Respondent has made out her case that the Applicant was not a "fit and proper person" within the statutory meaning of s 11(3)(a) and s 24(2)(c). These are sufficient grounds for the revocation of the Applicant's firearms licence.

1. The Respondent's submission is that the Applicant may not personally exercise continuous and responsible control over firearms because of the Applicant's "way of living and domestic circumstances". That submission is based on the evidence of the Applicant's relationship with her husband. In the Respondent's submission, there is a real risk arising if firearms are stored or possessed where her husband resides or frequents. The Respondent in particular refers to the evidence of the Applicant's husband's previous history concerning firearms and the risks found arising out of that history (see Oliver, [2017] NSWCATAD 95, at [52]).
2. The Respondent further submits that the Applicant had never held a firearms licence prior to the licence that was granted on 28 July 2020. The application for that licence was lodged on the same day as her husband's last failed application to hold a licence, namely 7 May 2020.
3. The Respondent also relies on what, in the Respondent's submission, is the Applicants "incompetence" in using a firearm. The Respondent believes that the Applicant's husband previously retained control of some or all of the Applicant's firearms and that the Applicant wants her firearms licence back for the purpose of allowing her husband to access the firearms.
4. I am in agreement with the Respondent's submissions. Given the close nature of the relationship between husband and wife and the particular relationship between the Applicant and her husband that dated to their high school years, I cannot be satisfied that the Applicant would not be vulnerable to pressure to provide to her husband access to the firearms or ammunition (see Adams v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 19, at [90]). That the date of refusal of the husband's firearms licence application and the date of the application by the Applicant is the same, is also of relevance. I do not think that storage of the relevant firearms in a safe maintained by a third-party business providing storage facilities addresses the risks of the Applicant's husband using the firearms when they are out of storage or accessing them from the storage facility itself.
5. There was evidence that the husband had what the NSW Police described as an "an extensive criminal history and concerns regarding domestic incidents and aggressive violent behaviour".
6. [NOT FOR PUBLICATION]
7. The test is that there be "virtually no risk". I cannot be so satisfied for the reasons set out at [54]-[55] above. As a consequence, I am satisfied that there are grounds for revocation of the Applicant's firearms licence by reason of s 11(4)(a) and s 24(2)(a).

1. The Applicant's says that she had a genuine reason for possession and use of firearms. That reason, in her submission is hunting, collecting and hunting. She produced evidence of her membership of the Sporting Shooters Association of Australia expiring on 31 August 2024 for target, hunting, collector and other. The evidence included a membership card showing a membership expiry date of 31 August 2024. The Applicant also gave evidence that she had taken steps to renew her membership until August 2025.
2. Even if the Applicant's application dated 1 August 2024 did not indicate that this was the "genuine reason" she relied upon, I am satisfied that she has shown a genuine reason within the meaning of s 12, based on the evidence before the Tribunal.

Knowingly providing false and misleading material

1. The Respondent relies on the matters set out at [48] above in support of her submission that the Applicant has "knowingly" provided false and misleading information in her application for a firearms licence. The consequence, in the Respondent's submission, is that the discretion to revoke a firearms licence arises.
2. I am satisfied on the balance of probabilities that the Applicant has "knowingly" provided false and misleading information in her application for a firearms licence. The matters set out at [48] above indicate that this was so, in particular, the declaration made on 1 August 2024.
3. An alternative explanation for the wrong information provided may have been error or carelessness. In these circumstances, the grounds set out in s 24(2)(b)(i) may not have themselves been sufficient to justify revocation of the licence. However, these are matters that are nevertheless relevant to the determination of whether the applicant is a "fit and proper person" in the statutory sense (see [48] above).

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 [48] and [53]-[55] above. In these circumstances, I am satisfied that grounds for revocation of the Applicant's firearms licence have been established on the basis of public interest.
2. The Applicant says that she is a law-abiding citizen. She says that her husband will not have access to the firearms if she gets her licence back. I have no reason to find that, subjectively, the Applicant herself does not believe this. However, I am not satisfied that the objective evidence allows for such a conclusion to be drawn, in particular having regard to the matters set out at [53] above.

1. For the reasons set out at [49], [56] and [64] above, the Respondent has made out of case for the revocation of the Applicant's firearms licence.

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

(2) Pursuant to ss 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the contents of all paragraphs in these reasons marked NOT FOR PUBLICATION are not to be published or disclosed to the Applicant or the public.

(3) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication or broadcast of the content of any document provided to the Tribunal in confidence is prohibited.

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.