Snow v Commissioner of Police, NSW Police Force [2024] NSWCATAD 214 | Case summary

NCAT Administrative and Equal Opportunity|2024-06-06

The Applicant's domestic circumstances

The Applicant's son has a long and extensive criminal history of convictions in relation to various drug, break and enter, driving and weapons offences. He is currently on remand awaiting trial for multiple offences.
While the Applicant states he has no knowledge of matters that may be contained in the confidential material, as a matter of public record and known to the Applicant, his son has a significant criminal history of offences.
The Applicant, as a loving and supportive father, states his son has an invitation to stay at his property, albeit in separate accommodation and subject to his household rules. The Applicant does not expect his son to take up this offer if his son is released later this year as his son is likely to have other accommodation available. If his son does visit the property his son is unlikely to enter the Applicant's house.
The Applicant contends that even if his son was not in residence on the property, he cannot control when his son might visit his property, therefore if he stores his firearms at his property he could inadvertently breach his licence at any time, making the condition an effective prohibition on him using his firearms, with the effect that his firearms licence would be of no practical utility.
The Applicant contends that the safe storage requirements of his licence and the practical arrangements of his gun safe should be enough to mitigate any risks to public safety. Further, the Applicant's evidence is that his son has always respected his household rules in relation to the prohibition of drugs and has not been charged or convicted of any firearms offences.

Public safety and risk

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 (Martin).
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 test: Martin at [69].

Is it in the public interest for the Applicant to hold a licence without the condition?

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.
In Wallin v Commissioner of Police (No 2) [2022] NSWCATAD 83 the Tribunal stated (at [36]-[37]): The appropriateness of a special condition on a firearms licence is a function of the public interest. In the context of firearms licensing, the overarching component of the public interest is public safety: Mulligan v Commissioner of Police [2020] NSWCATAD 272 at paragraph [58]. Restrictions imposed by a special condition should not go further than is required for the protection of public safety. The issue to be addressed is therefore whether considerations of public interest, or a concern for the risk to public safety, justified the imposition of the special condition. That is to say, whether the inconvenience suffered by the applicant as a consequence of the imposition of the special condition was necessary to ensure public safety: Mulligan v Commissioner of Police at paragraph [26]. A decision maker should not shy away from the exercise of a discretion merely on the ground that the licensee may suffer hardship or inconvenience: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at paragraph [22].
Further, in determining public interest considerations, including whether there is a risk to public safety if the Applicant was granted a licence without the condition, it is appropriate to consider the Applicant's entire history, including his family who live or associate with him, and not just his recent conduct: see Ljubenkov v Commissioner of Police, NSW Police Force [2024] NSWCATAD 43 at [28].
On the material before the Tribunal, the Tribunal is satisfied the Applicant's son has a significant criminal history such that there is a risk to public safety if he were to have access to a property where firearms are stored, either by residence or visiting and the Applicant may not personally exercise continuous and responsible control over his firearms because of those domestic circumstances.
[NOT FOR PUBLICATION]
The Tribunal is satisfied the Applicant may not be able to exert the requisite control over his firearms because of his domestic circumstances without the condition. The condition imposed on the Applicant's firearms licence by the Commissioner is a proportional response to address the identified risk to public safety.
The Tribunal agrees with the submission of the Commissioner that there are practical options available to the Applicant to continue to use his licenced firearms under his current licence, such as safely storing his firearms elsewhere. The Applicant's concerns and any potential inconvenience he may experience as a result of the condition are not sufficient to override the need for the condition.
In all the circumstances the Tribunal is satisfied there is a real risk to public safety as a result of the characteristics of the Applicant's domestic circumstances, such that it is not in the public interest for the Applicant to hold a firearms licence without the condition.
It follows that the correct and preferable decision is to affirm the decision of the Commissioner to impose the condition on the Applicant's firearms licence.

Order 1. The decision under review is affirmed. 2. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 other than to the Tribunal and Respondent, publication or broadcast of: 1. the contents of exhibits CR9, CR10 and CR11 received in evidence by the Tribunal on 6 June 2024 is prohibited; 2. any part of the evidence given before the Tribunal and submissions made to the Tribunal at the confidential hearing on 6 June 2024, including all recordings, whether written, electronic or aural of that hearing is prohibited; and 3. any part of any paragraph of these reasons which commence with [NOT FOR PUBLICATION] other than the words in those brackets 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. 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: 31 July 2024

Background

Jonathan Malcolm Snow (the Applicant) applied for a Category AB firearms licence. The reason he applied for the licence was to control feral animals on his rural property and for recreational hunting.
The Applicant previously held firearms licences for many years but in 2021 his firearms licence was revoked as a result of conduct involving breaches of his firearms licence as detailed in Snow v Commissioner of Police, NSW Police Force [2023] NSWCATAD 139.
The Commissioner of Police (the Commissioner) approved the Applicant's application for a fresh firearms licence with a special condition on 14 November 2023 because the Commissioner was not satisfied it would be in the public interest to grant an unconditional licence on grounds unrelated to the 2021 revocation. The condition imposed was relevantly: The licence holder is prohibited from storing firearms, firearm parts and ammunition at any location where the following person resides or frequents: Harrison SNOW…
The Commissioner conducted an internal review of the decision at the Applicant's request and on 2 January 2024 the Commissioner affirmed the decision to impose a condition and varied the condition. The varied condition is relevantly: (1) The licence holder is prohibited from storing firearms, firearm parts and ammunition at any location where Harrison Snow…resides or frequents; and (2) The licence holder is prohibited from handling or using firearms, or removing firearms, firearms parts and ammunition from any safe storage facility, in the presence of Harrison Snow…
The Applicant seeks review of the decision to impose item (1) of the varied condition (the condition) on his firearms licence.

Administrative Review

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]. In conducting a review the Tribunal is not restricted to consideration of the material that was before the Commissioner but may have regard to any relevant material before the Tribunal at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.
The Tribunal may decide to affirm or vary the administratively reviewable decision, or set it aside and either substitute a different decision or remit the matter to the administrator for reconsideration: see s 63(3) of the ADR Act.

Snow v Commissioner of Police, NSW Police Force

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