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[2026] NSWSC 984
Supreme Court of NSW
2026-08-19
Payne JA
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Spence v Commissioner of Police, New South Wales Police Force [2026] NSWSC 984
Hearing dates: 16 July 2026
Date of orders: 19 August 2026
Decision date: 19 August 2026
Jurisdiction: Common Law
Before: Payne JA
Decision: (1) Extend time for commencing the proceedings to 9 February 2026.
(2) The Amended Summons dated 1 May 2026 is dismissed.
(3) The plaintiff to pay the defendant’s costs.
Catchwords: ADMINISTRATIVE LAW — Particular administrative bodies — police — revocation of firearms licence — where plaintiff sentenced to conditional release order for firearms-related offences — where delegate gave weight to requirement to refuse a new licence application for a person serving a conditional release order — where delegate determined not in public interest for plaintiff to possess or use firearms by way of a licence ADMINISTRATIVE LAW — Hearing rule — disclosure — adverse allegations — whether delegate erred in taking into account certain police computer system entries ADMINISTRATIVE LAW —Irrelevant and relevant considerations — whether delegate erred in taking into account the requirement to refuse a new licence application for a person serving a conditional release order — whether delegate failed to take into account low objective seriousness of offending and prior behaviour and primary producer status of the plaintiff ADMINISTRATIVE LAW — Ground of review other than procedural fairness — unreasonableness — whether unreasonableness in delegate’s decision due to plaintiff’s lengthy period of prior compliance with firearms legislation
Original judgment source is linked above.
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 55
Firearms Act 1996 (NSW), ss 3, 11, 24, 36, 37, 39, 40, Sch 3 Part 13 cl 44
Firearms Regulation 2017 (NSW), cll 5, 20
Penalties and Sentences Act 1992 (Qld), s 12
Supreme Court Act 1970 (NSW), s 69
Terrorism and Other Legislation Amendment Act 2025 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 59.10
Weapons Act 1990 (Qld), s 10B
Weapons Prohibition Act 1998 (NSW), s 7
Cases Cited: AAI Ltd t/as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229; 77 MVR 348
Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13
Attorney General (New South Wales) v Quin (1990) 170 CLR 1
Bryant v Commissioner of Police, NSW Police Force [2018] NSWCATAD 222
Burey v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 344
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074
Commissioner of Police v XPR [2025] QCA 93
D’Ament v Allianz Australia Insurance Ltd [2019] NSWCA 201
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088
Holdsworth v Commissioner of Police, New South Wales Police Force [2020] NSWSC 228
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
Laing v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 315
Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; [2013] NSWCA 180
Masterson v Commissioner of Police [2018] NSWSC 892
Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46
Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Re Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; 2 ALD 33 at 41
Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272
Solomon v Commissioner of Police (NSW) [2021] NSWSC 236
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Turner v Commissioner of Police, New South Wales Police Service [2001] NSWADT 169
Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170
Texts Cited: Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Lawbook Co)
Category: Principal judgment
Parties: Aaron Spence (Plaintiff)
Commissioner of Police, New South Wales Police Force (Defendant)
Representation: Counsel:
G Kable (Solicitor Advocate) (Plaintiff)
T Liu (Defendant)
Solicitors:
Kable Firearms & Licensing Law (Plaintiff)
Lander & Rogers (Defendant)
File Number(s): 2026/00055455
Publication restriction: None.
PAYNE JA: On 24 December 2025, amendments to the Firearms Act 1996 (NSW) effected by the commencement of the Terrorism and Other Legislation Amendment Act 2025 (NSW) commenced. These amendments have profound effects for the system of review of the grant and cancellation of firearms licences in this State under the Firearms Act. No longer is there available any merits review in relation to firearms licensing decisions in the NSW Civil and Administrative Tribunal (“NCAT”).
A review of administrative decisions made by a delegate of the defendant, the Commissioner of Police, New South Wales Police Force, within the NSW Police Force Firearms Registry, is available via a judicial review under s 69(3) of the Supreme Court Act 1970 (NSW).
In contrast with a merits review, there are both practical and legal limits on the scope of the judicial review jurisdiction. Judicial review is conveniently identified by reference to three main factors, namely, (i) scope of reviewable decisions, (ii) grounds of review and (iii) relief available. These factors are interrelated.
The supervisory jurisdiction of the Court is identified, but not defined, in s 69 of the Supreme Court Act. It is identified primarily by reference to the pre-existing jurisdiction of the Court to grant relief by way of prerogative writs. Such writs were available to supervise the exercise of governmental powers by public officers.
Critically, the Court is not permitted to exercise those administrative powers itself, but only to set aside a decision made without lawful authority, or to require a mandatory step to be taken according to law: Attorney General (New South Wales) v Quin (1990) 170 CLR 1 at 35–36; Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 at [27]-[28], [56]. In the present context, that means that the Court is not empowered itself to grant a licence under the Firearms Act but is able to set aside a decision affected by relevant error and remit the matter to the decision-maker for reconsideration. The only exception to this principle is where a decision is set aside, but, as a matter of law, only one order is available. In such a case, the Court had power to make such an order: s 69(3)(b).
Relief under s 69 is only available for jurisdictional error or error of law on the face of the record: D*’*Ament v Allianz Australia Insurance Ltd [2019] NSWCA 201 at [42]. These two categories of error are not mutually exclusive, but for some purposes it is necessary to distinguish between them: Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 at [11], [18]-[19].
Jurisdictional e**rror: In Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34; Kiefel CJ, Gageler and Keane JJ gave the following explanation of jurisdictional error:
“[23] Jurisdiction, in the most generic sense in which it has come to be used in this field of discourse, refers to the scope of the authority that is conferred on a repository. In its application to judicial review of administrative action the taking of which is authorised by statute, it refers to the scope of the authority which a statute confers on a decision-maker to make a decision of a kind to which the statute then attaches legal consequences. It encompasses in that application all of the preconditions which the statute requires to exist in order for the decision-maker to embark on the decision-making process. It also encompasses all of the conditions which the statute expressly or impliedly requires to be observed in or in relation to the decision-making process in order for the decision-maker to make a decision of that kind. A decision made within jurisdiction is a decision which sufficiently complies with those statutory preconditions and conditions to have ‘such force and effect as is given to it by the law pursuant to which it was made’.
[24] Jurisdictional error, in the most generic sense in which it has come to be used to describe an error in a statutory decision-making process, correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it. To describe a decision as ‘involving jurisdictional error’ is to describe that decision as having been made outside jurisdiction.…”
(Footnotes omitted.)
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
“[16] Attempts to abandon the distinction between jurisdictional error and other errors of law, together with attempts to broaden the concept of ‘the record’ were rejected by the High Court in Craig v State of South Australia (1995) 184 CLR 163. … In the course of discussing the scope of the ‘record’ in respect of an inferior court, the ‘expansive approach’ adopted by this Court, particularly in Commissioner for Motor Transport v Kirkpatrick (1988) 13 NSWLR 368 at 389–390 per Priestley JA was rejected. After noting the absence of authority directly in point in the High Court in Craig, at 181, stated:
‘More importantly, the approach that the transcript of proceedings and the reasons for decision constitute part of “the record” would, if accepted, go a long way towards transforming certiorari into a discretionary general appeal for error of law upon which the transcript of proceedings and the reasons for decision could be scoured and analysed in a search for some internal error.’ (Footnotes omitted)
[17] Following that decision, s 69 of the Supreme Court Act was amended to provide that ‘the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination’: s 69(4). Given the procedural history outlined above, it is significant that the amendment did not refer to written evidence (such as affidavits and documentary material), nor did it refer to the transcript, whether of evidence or submissions….
[19] These considerations require the applicant to identify with a degree of precision which grounds are said to involve jurisdictional error and which errors of law on the face of the record. As explained by Tate JA in Easwaralingam v Director of Public Prosecutions (Vic) [2010] VSCA 353; (2010) 208 A Crim R 122 at [25], a case apparently not involving an allegation of jurisdictional error:
‘[25] … [A]n application for certiorari is not the same as a general appeal for error of law, most importantly, because it falls to be determined on the basis of different material. An application for certiorari does not invite a scouring of all the evidence before the inferior court to determine whether the proper inferences were drawn from it or whether an item of evidence was overlooked.’”
In the present context, the importance of the distinction between jurisdictional error and error of law on the face of the record is that there are evidentiary consequences: Allianz Australia Insurance Ltd v Kerr at [18]-[19]. A claim for relief based on jurisdictional error may be established by any admissible evidence relevant for that purpose. By contrast, a claim for relief based upon an error of law within jurisdiction must identify the error on the face of the limited materials that constitute “the record”: see AAI Ltd t/as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229; 77 MVR 348 at [45]. Common examples of jurisdictional error established by evidence not forming part of the record are procedural unfairness and apprehension of bias: Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 at [31].
Having sketched this background, I turn now to the facts of this application for judicial review.
By amended summons dated 1 May 2026, the plaintiff, Mr Aaron Spence, sought judicial review of an internal review decision made on 9 September 2025 by a delegate of the defendant, the Commissioner of Police, New South Wales Police Force, within the NSW Police Force Firearms Registry (“Delegate’s Decision”).
The delegate affirmed the decision served on the plaintiff on 14 August 2025 to revoke the plaintiff’s Category ABC firearms licence pursuant to s 24(2) of the Firearms Act. This decision was made on bases including that the plaintiff had been found guilty without conviction and a Conditional Release Order (“CRO”) had been imposed for several firearms-related offences.
Initially, the plaintiff sought merits review of the Delegate’s Decision in NCAT. On 24 December 2025, amendments effected by the Terrorism and Other Legislation Amendment Act commenced. On 6 January 2026, the Tribunal dismissed the proceeding pursuant to s 55(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). In February 2026, these judicial review proceedings were commenced.
The plaintiff owns and farms 10,000 acres of land in south-western New South Wales, which is used for livestock and broadacre cropping. On 19 December 2022, the plaintiff was issued with a Category ABC firearms licence, set to expire on 19 December 2027.
On 12 April 2024, the police were notified by staff at Swan Hill Hospital of a firearms incident which had occurred at the plaintiff’s property on 11 April 2024. An injury was sustained by a shooter who was a relative of the plaintiff. The injured shooter accidently caused a self-inflicted injury to his finger when using a .223 pump action firearm. A police investigation ensued.
On 28 October 2024, the plaintiff was charged with firearms-related offences which were alleged to have occurred at his property on 12 April 2024. These offences were:
Sequences 1 and 6 – “Not keep firearm safely-not pistol/prohibited firearm … did not take all reasonable precautions” contrary to s 39(1)(a) of the Firearms Act.
Sequences 2 and 7 – “Holder of Category A or B licence not have approved storage … did not have approved storage in compliance with requirements” contrary to s 40(1) of the Firearms Act.
Sequences 3 to 5 – “Possess unregistered firearm-not pistol/prohibited firearm … did possess a firearm that was not registered” contrary to s 36(1) of the Firearms Act. The unregistered firearms were a:
(a) Winchester .22; (b) Marlin 22HMR; and (c) Liege 4/10.
Sequence 8 – “Possess or use a prohibited weapon without permit” and “did possess a prohibited weapon without being authorised to do so by a permit being a magazine designed to be attached to any machine gun, sub-machine gun or other firearm that is capable of propelling projectiles in rapid succession following one pressure of the trigger” contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW).
Sequences 9 to 11 – “Fail to provide Commissioner particulars when firearm acquired” (with the relevant firearms being the same as the three guns referred to in sequences 3 to 5 as set out above) contrary to s 37(2) of the Firearms Act.
The charges against the plaintiff for sequences 1 and sequences 3 to 7 were subsequently withdrawn.
On 11 August 2025, in the Local Court the plaintiff was found guilty without conviction and Conditional Release Orders of between 9 and 18 months were made for the following offences:
“Holder of Category A or B licence not have approved storage” – 12-month Conditional Release Order (sequence 2).
“Possess or use a prohibited weapon without permit-T2” – 18-month Conditional Release Order (sequence 8).
3 counts of “Fail to provide Comm particulars when firearm acquired” – 9-month Conditional Release Order (sequences 9 to 11).
“I am writing to advise that a decision has been made to REVOKE YOUR New South Wales Firearms Licence No 405473148.”
“On 28 October 2024 you were charged with the offences of ‘Holder of Category A or B licence not have approved storage’, ‘Possess or use a prohibited weapon without permit-T2’, and ‘Fail to provide Comm particulars when firearm acquired’ and are subject to a conditional release order without conviction.”
“I have made the decision to revoke your firearms licence.
The principles and objectives of the Firearms Act 1996 (the Act) are to confirm that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety by imposing strict controls on the possession and use of firearms.
Inherent in the licensing requirements is that persons who have access to firearms must act responsibly and in accordance with the legislation.”
“Section 24(2)(a) of the Firearms Act 1996 states 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.
Section 11(5)(d)(iii) of the Firearms Act 1996 prescribes that the Commissioner must not issue a licence to a person who is subject to a conditional release order imposed in New South Wales in relation to an offence prescribed by the regulations.
In this regard, clause 5(3)(a) of the Firearms Regulation 2017 prescribes for an offence relating to the possession or use of a firearm, or any other weapon, or a firearm part or ammunition.”
On 29 August 2025, an application for an internal review of the Adjudication Officer’s decision was made on behalf of the plaintiff, by letter to the Review Section of the NSW Police Firearms Registry. The plaintiff advanced the following submissions:
The plaintiff referred to the Queensland Court of Appeal judgment of Commissioner of Police v XPR [2025] QCA 93 and submitted that, “if the sole reliance for revoking the licence was the offending for which no conviction was recorded, then the court has ruled that the facts and circumstances cannot be used to revoke a firearm licence, and on that basis, we submit that Mr Spence should have his firearm licence restored”;
It was submitted that, “[r]egardless of that finding, Mr Spence should succeed in this application given his long history of firearm possession without previous incident, that there were no aggravating features in the offending here, ultimately his firearms were still adequately stored, it was in a moment of pressure he left ammunition in the gun safe with firearms”;
It was further submitted that, “[i]n terms of the other offences, he was under the impression that the firearms had been transferred to him and was truly embarrassed when it came to light that this had not occurred, and that the old high capacity magazine was given to him by an old friend who had been in the army, did not fit any of his firearms and was essentially junk”;
The plaintiff referred to the cases decided under the now-repealed merits review jurisdiction of Burey v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 344 and Bryant v Commissioner of Police, NSW Police Force [2018] NSWCATAD 222. It was submitted that, “in this case Mr Spence has a long record of conscientious compliance and therefore should be given that benefit”, that he had “entered pleas of [guilty] in relation to some charges and representations on others that were ultimately accepted by police on the day of hearing, with a plea of guilty to the prohibited magazine as part of that bargaining. He was compliant with police throughout the investigation and search.” The plaintiff also relied on the other “considerations” in Burey, submitting that, likewise, there was “no real or appreciable risk if Mr Spence were to have his firearm licence returned”; and
Finally, the plaintiff submitted that, “[a]s Mr Spence had a migraine on the morning of the offending, and [was] therefore preoccupied, there was no evidence that he had regularly breached the rules, he also has a long history of vermin control, and has been without his firearm licence for a considerable period, which is, we submit, an appropriate penalty for his lapse of judgement.”
“Internal Review-Statement of Reasons
Under section 53 of the Administrative Decisions Review Act 1997
…
Date of review: 9 September 2025
I have conducted this Internal Review and for this purpose, examined all papers relating to your request. After fully and independently considering all relevant matters I make the following determination.
A. DECISION:
The decision to revoke your Category ABC firearms licence is affirmed.
B. HISTORY OF LICENCE UNDER REVIEW:
You were issued with a Category ABC firearms licence on 19 December 2022, to expire 19 December 2027. However, that licence was revoked on 14 August 2025. The revocation of that licence is the decision under review.
C. MATERIAL FINDINGS OF FACT:
In arriving at my decision in this matter I have considered the issues raised by your legal representative and I have examined the records available to the NSW Police Force including, but not limited to, the following:
- On 25 May 2004 police conducted a safe storage inspection of your firearms. All firearms registered to your licence were correctly stored (E 20752527).
- On 11 May 2012 police conducted a safe storage inspection of your firearms. All firearms registered to your licence were accounted for (E 47435615).
- On 12 April 2024 police were notified by staff at Swan Hill Hospital of a firearms incident which had occurred at your property on 11 April 2024. The shooter was a personal friend of yours who accidentally caused a self-inflicted injury to his finger when using your .223 pump action firearm. Police investigating the incident conducted a safe storage inspection of your firearms, detecting numerous issues relating to storage of ammunition and firearms. The initial police report stated that one of your firearms, unaccounted for during the inspection, was later found at your friend’s property. Further, additional firearms found at your property were not registered to you, including the firearm used by your friend. Police also located a 30 round F88 AUS Steyr magazine. Your firearms licence was suspended. On 28 October 2024 you were charged with numerous firearms related offences (E 173867402).
- On 11 August 2025 you were found guilty without conviction and entered into a Conditional Release Order for 12 months for the following offences:
- Holder of Category A or B licence not have approved storage
- On 11 August 2025 you were found guilty without conviction and entered into a Conditional Release Order for 18 months for the following offences:
- Possess or use a prohibited weapon without permit-T2
- On 11 August 2025 you were found guilty without conviction and entered into a Conditional Release Order for 9 months for the following offences:
- Fail to provide Comm particulars when firearm acquired
- Fail to provide Comm particulars when firearm acquired
- Fail to provide Comm particulars when firearm acquired
D. MY UNDERSTANDING OF THE APPLICABLE LAW IS THAT:
Section 24(2)(a) of the Firearms Act 1996, 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.
Section 11(5)(d)(iii) of the Firearms Act 1996, prescribes that a licence must not be issued to a person who is subject to a conditional release order imposed in New South Wales.
In this regard, clause 5(3)(a) of the Firearms Regulation 2017 prescribes for an offence relating to the possession or use of a firearm, or any other weapon, or a firearm part or ammunition.
Section 24(2)(b)(ii) of the Firearms Act 1996, 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, or if the licensee contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention.
Section 24(2)(d) of the Firearms Act 1996, prescribes that a licence may be revoked for any other reason prescribed by the regulations.
Clause 20 of the Firearms Regulation 2017, prescribes that 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.
E. REASONING PROCESS:
The Firearms Act 1996 (the Act) sets up a scheme to license people to possess and use firearms. 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 [Firearms Act 1996, section 3(1)(b)].
I have reviewed the reasoning for the original decision and considered the material submitted by your legal representative in support of your request for a review. Based on all the material before me and for reasons which I will outline below, I agree with the decision made.
I have taken into consideration that you have been authorised for firearms for approximately 24 years in total with no criminal convictions and that you have not come to prior notice regarding misuse of firearms however, questions surround your ability to maintain strict control of firearms due to the period of time you had unregistered firearms in your possession, your unsafe safe storage of ammunition and possession of a prohibited firearm magazine for which you are currently subject to a CRO. I note that, although you were complacent in the possession of firearms and weapons, you assisted police during the investigation.
Several safe storage breaches were identified by police when your firearms safe was inspected on 12 April 2024. In regard to your ammunition stored with firearms, your legal representative provides that in a moment of pressure you left ammunition in the gun safe with firearms however, I note that you told police they are a tool to you, and you get busy.
Strict controls on the possession and use of firearms are imposed in the interests of public safety. Category A or B firearms licence holders must comply with section 40 (1)(d) of the Act which states any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the receptacle containing any such firearm,
Ammunition must be stored in accordance with regulations to prevent a firearm being ready for use and thereby reducing the risk of accident or theft. As the ammunition was not stored in accordance with regulations, it presented a danger to the public including yourself. As a result of your contravention of safe keeping requirements outlined in Part 4 of the Act, you are now subject to a CRO for 12 months.
You were also found guilty of possession of a prohibited firearm magazine. Your legal representative provides that the ‘old high-capacity magazine’ did not fit any of your firearms and was essentially junk. You informed police that you did not know where the magazine came from although it may have been given to you by a friend who had been in the army and that it had been laying around for some time.
Despite the manner in which it came into your possession, an ongoing National Firearms Amnesty commenced on 1 July 2021 to allow for firearms or firearm related articles to be registered, supplied or surrendered to a participating firearm dealer without fear of prosecution. This included ammunition. Although there appears to be no evidence that there was no nefarious purpose for having the magazine, you were not permitted to have it in your possession and you did not surrender it under the ongoing amnesty.
In regard to your possession of unregistered firearms you advised police that you purchased them from another licence holder years before and should be registered to you however, you could not locate any paperwork. It appears that you did not ensure all firearms in your possession were registered as required by section 36(1) of the Act. It has been held that, for fear of repercussions, persons may be unlikely to report a firearm stolen if they are not licensed to own that firearm, or if the firearm was not registered [Australian Institute of Criminology – Trends & Issues No 230 June 2002 at page 1]. This demonstrates the lack of regard you gave to firearms legislation and the onerous responsibilities that were imposed on you as a responsible firearms licence holder.
Your legal representative provided that your firearms licence should be restored as you did not have a conviction recorded and as you have a long record of conscientious compliance. The legislative requirements for a firearms licence holder are applicable to all licence holders. This Authority provides that where a person comes into possession of a firearm, ammunition or prohibited weapons that they are not authorised to possess, the person must immediately surrender the firearm to police [URL of NSW Police web page, ‘Legislative Requirements Licence Holder’]. It appears that you did not make enquiries to ensure that the three firearms acquired from another licence holder were registered to you.
Your breaches of firearms legislation occurred not only when you were the holder of a firearms licence but after holding an authority for a lengthy period of time, even acquiring and registering a new firearm as recently as 2023. Although you were not convicted you placed the public’s safety at significant risk by not registering the firearms.
I do accept that your firearms licence was issued for primary production purposes and this decision may cause you some inconvenience. However, in the Second Reading Speech on 25 June 1996 relating to the Act, the Hon Mr J W Shaw (the former Attorney General) said, (at 3557): “The legislation puts the public’s right to safety before the privilege of gun ownership”.
It has long been held that the concept of the ‘public interest’ is designed to give broader interests of the community priority over private interests. In the context of the Act, the Tribunal must be satisfied that there is virtually no risk. The Tribunal has described this is a high standard to meet: Sheehan v Commissioner of Police, NSW Police Force [2017] NSWCATAD 232. The public’s right to safety must outweigh an individual’s privilege to possess and use a firearm or any financial impact that might flow from the loss of the licence Huckel v The Commissioner of Police [2008] NSWADT 347 at [41] [Hermann v The Commissioner of Police [2020] NSWCATAD 127 at 51].
You are currently subject to CRO’s for several firearms offences and a prohibited weapons offence. A current CRO prohibits the issue of a firearms licence when the CRO relates to specific offences deemed ‘prescribed’ under clause 5 of the Firearms Regulation 2017 (the Regulations). I give weight to the fact that on 11 August 2025, Deniliquin Local Court saw fit to place you on these CRO’s for firearms offences, and an 18-month CRO, to expire on 10 February 2027 in relation to your offence of ‘Possess or use a prohibited weapon without permit-T2. The inference of a good behaviour bond for a prescribed offence operates to remove the privilege of holding a firearms licence for the term of the bond as public safety has been placed at risk.
Your firearms offences and weapons offence can be deemed ‘prescribed’ for the purposes of mandatory refusal of a licence application upon a certain court verdict, or for the purpose of discretionary revocation of an existing licence. It is relevant that your charge resulted in a verdict which meets the requirements to be deemed ‘prescribed’ due to the penalty of a CRO imposed for the next 18 months.
In assessing whether to exercise the discretion to revoke your licence, I give weight to the fact that the Commissioner must refuse an application for a licence from any other member of the public who is serving the same type of CRO as yours. Consequently, allowing you to retain your licence whilst subject to a CRO for a prescribed offence would be anomalous and unfair to other members of the community. I agree with the view that it is important for administrators to deal with similar cases consistently [(Reference: Lynch v The Commissioner of Police (GD) [2006] NSWADTAP 43 at para 15).] Therefore, I believe that your licence should be revoked on the grounds of your CRO.
As a result of the above information, I am satisfied that due to your being subject to a CRO in relation to firearms offences and a prohibited weapons offence, that it is not in the public interest for you to be authorised to possess or use firearms by way of a licence.
Accordingly, I find that the revocation of your firearms licence is the correct and preferable decision.
However, after the expiry of your CRO a different view may be reached with reference to whether or not you can be trusted to possess firearms without posing a danger to the safety of the public.
Right of Review
If you are not satisfied with this decision you may seek an external review in the NSW Civil and Administrative Tribunal, within 28 days***. You should contact the Tribunal via their website www.ncat.nsw.gov.au if you have any enquiries in this regard.***
Firearms
Should you not exercise your right of review, please make immediate arrangements to dispose of your firearms currently held at Barham and Deniliquin Police Stations. You may advise police that you surrender the firearms for destruction OR you may arrange for a licensed firearms dealer to conduct a sale on your behalf. The dealer must quote Reference No E 173867402. If you do not make arrangements to dispose of the firearms, police may seek a Court Order to dispose of them pursuant to section 80(1)(a) of the Act.
Please note: Your firearm/s were subject of a finding of guilt for an offence under Part 4 of the Firearms Act 1996. Section 80(2) of the Firearms Act 1996 states that the court which makes the finding of guilt is taken to have ordered that the firearm be forfeited to the Crown.
Signed:
…
Senior Adjudicator
Review & Advisory
NSW Police Force Firearms Registry”
For present purposes it may be noted that the Senior Adjudicator “considered the material submitted by your legal representative in support of your request for a review”. Importantly, the Senior Adjudicator set out the applicable law including ss 24(2)(a), 24(2)(b)(ii) and 24(2)(d) of the Firearms Act and cll 5(3)(a) and 20 of the Firearms Regulation 2017 (NSW). No complaint was made by the plaintiff in this Court about the identification of the relevant law by the Senior Adjudicator or that the material submitted in support of the request for a review was not taken into account.
The Senior Adjudicator noted the discretionary nature of the decision, stating that he or she was “assessing whether to exercise the discretion to revoke [the plaintiff’s] licence”. In that exercise, the Senior Adjudicator “[gave] weight to” the fact that the defendant would otherwise be required to refuse to issue a licence to a member of the public subject to the same type of CRO as the plaintiff.
The Senior Adjudicator also noted that cl 20 of the Firearms Regulation prescribed that the Commissioner may revoke a licence if the Commissioner is satisfied it is not in the public interest for the licensee to continue to hold the licence.
The Senior Adjudicator expressly took into account the submissions made on behalf of Mr Spence and recorded that he had been authorised to own firearms for approximately 24 years with no criminal convictions and no prior notice of misuse of firearms.
It was noted that category A or B firearms licence holders must comply with s 40(1)(d) of the Firearms Act, which states that ammunition must be stored in a locked container of a type approved by the Commissioner and kept separate from the receptacle containing firearms. It was noted that the plaintiff had not stored the ammunition in accordance with the Firearms Regulation and that, as a result of this contravention, the plaintiff was subject to a CRO for 12 months.
It was also noted that the plaintiff was found guilty of possession of a prohibited firearms magazine. While the Senior Adjudicator accepted there was no evidence of a nefarious purpose on the part of the plaintiff, he had not surrendered the magazine in accordance with the ongoing National Firearms Amnesty.
Regarding the plaintiff’s firearms registration offences, the delegate noted that although the plaintiff had advised the police that he had “purchased [the firearms] from another licence holder and they should be registered to [the plaintiff]”, it was nonetheless the case that he failed to ensure they were registered to him as required by s 36(1) of the Firearms Act. It was concluded that “[t]his demonstrates the lack of regard [the plaintiff] gave to firearms legislation and the onerous responsibilities that were imposed on [him] as a responsible firearms licence holder.”
“1. The decision is invalid on the following grounds.
- First, on an error of law, in the making of a decision, the decision maker has failed to give the Plaintiff an opportunity to be heard (otherwise known as a denial of procedural fairness, or of natural justice)
- Secondly, the adjudicator has taken into account an irrelevant consideration, in that a mandatory ground for refusing a new licence application is if a person is subject to a bond for certain offences, though in this instance Mr Spence is not applying for a new licence, he has been issued with a firearm licence and has associated history with that licence and the matter concerns a revocation.
- Thirdly, there has been a failing to take into account a mandatory relevant consideration in that the plaintiff has been a licensed firearms holder for a lengthy period of time without coming to the attention of authorities so is considered to be a person of good character, the objective seriousness of his offending was on the lower end of the scale and that no conviction has been recorded. The plaintiff has shown remorse and contrition and as the owner of a large commercial farming operation requires firearms for the sustainability of his livelihood (The Queensland Court of Appeal matter of Commissioner of Police v XPR [2025] QCA 93, recently decided, on legislation similar to NSW, that when no conviction is recorded that the adjudicating body cannot look behind the nature of the offending to assess the suitability in relation to a licence appeal).
- Fourthly, there is legal unreasonableness in reaching this conclusion as the plaintiff has been a licensed firearms holder for a very lengthy period of time, has always complied with the legislation and has renewed the licence on multiple occasions confirming he maintains a genuine reason for holding such a licence.”
(Emphasis in original.)
“1. An order in the nature of a writ of certiorari under s69 of the Supreme Court Act 1970 (NSW) quashing the order the Adjudicator of the NSW Police Firearm Registry.
- A declaration that Mr Spence has the revocation of his Firearm Licence overturned.”
At the outset it should be noted that insofar as the amended summons sought “[a] declaration that Mr Spence has the revocation of his Firearm Licence overturned”, that relief is not available in these proceedings. As I have explained, unlike a merits review of the kind formerly available, the Court’s role in a judicial review proceeding is not to remake the delegate’s decision, nor (save where it is the only legally available result) to declare what the ultimate outcome of the decision should be: Quin at 35–36.
On 8 May 2026, the plaintiff filed a second affidavit of Mr Kable sworn 8 May 2026. Mr Kable stated, “[w]e hereby submit the following documents that were not a part of the agreed bundle above and were therefore not considered by the adjudicator to the disputed decision”. Those documents were annexed to the affidavit and described as:
an email dated 20 July 2024 from the officer in charge of the matter, Officer Furze, to the plaintiff’s wife;
a further statement of Officer Furze dated 28 July 2025;
an email from Craig Beasy, in response to an email from Officer Furze, in relation to seeking a statement from “Bec at Swan Hill Fishing and Shooting”, which relates to paragraphs 5 and 9 of the further statement of Officer Furze dated 28 July 2025;
a statement from Rowen Lovell; and
a statement from Senior Constable Blackadder.
On 16 July 2026, the matter was heard in this Court. The affidavits of Glenn Kable sworn 9 February 2026 and 8 May 2026 were read without objection. Although no attention was devoted to this matter at the hearing, the additional material contained in the 8 May 2026 affidavit could only be relevant to a complaint of jurisdictional error as it formed no part of the “record”. The contents of the Court Book were treated as Exhibit A on the application, on the basis that it also contained submissions that were not evidence.
The plaintiff did not commence proceedings in this Court within three months of the date of the Internal Review Decision, as required by Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 59.10(1). The plaintiff acknowledged this and submitted “the necessity for seeking Supreme Court intervention is because the NSW Administrative Decisions Tribunal pathway had been removed during the process of seeking restitution of the plaintiff’s firearms licence by this procedure”.
The defendant noted that, as recorded in a notation to the Tribunal’s orders, the plaintiff’s application in NCAT was “taken to have been withdrawn” following the commencement of the Terrorism and Other Legislation Amendment Act on 24 December 2025 and by operation of cl 44 of Part 13 of Schedule 3 to the Firearms Act. In those circumstances the defendant indicated it did not oppose the Court granting the plaintiff an extension of time to commence judicial review proceedings: per UCPR r 59.10(2).
In the circumstances of this case, I have decided to grant an extension of time to commence these judicial review proceedings.
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, 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.
11 General restrictions on issue of licences
(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, and
(b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and
(c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and
(d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State.
(3A) Despite subsection (3) (b), the Commissioner may require an applicant for a licence to complete such firearms training and safety courses as are approved by the Commissioner in relation to the category of licence concerned.
(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
(b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or
(c) the applicant’s intemperate habits or being of unsound mind.
(5) A licence must not be issued to a person who—
(a) is under the age of 18, or
(b) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or
(c) is subject to an apprehended violence order or interim apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to an apprehended violence order (other than an order that has been revoked), or
(d) is subject to one of the following in relation to an offence prescribed by the regulations—
(i) a good behaviour bond, whether entered into in New South Wales or elsewhere,
(ii) a community correction order imposed in New South Wales,
(iii) a conditional release order imposed in New South Wales, or
(e) is subject to a firearms prohibition order, or
(f) is a registrable person or corresponding registrable person under the Child Protection (Offenders Registration) Act 2000.
…
(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.
(8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence.
24 Revocation of licence
(1) A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order.
(1A) The Commissioner must revoke a licence that is held for the purpose of employment as an armed security guard (within the meaning of the Security Industry Act 1997) if—
(a) the licensee has failed to undertake any firearm safety training required under this Act or the regulations, or
(b) in the case of a licensee who holds a class 1F licence or a visitor permit authorising the licensee to carry out security activities of a kind authorised by a 1F licence under the Security Industry Act 1997—the 1F licence or visitor permit is revoked under that Act or the licensee contravenes any condition of the firearms licence under this Act.
(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.
(2A) If the Commissioner revokes a licence because the licence holder would be refused a licence on the grounds referred to in section 11 (5A), the Commissioner is not, under this or any other Act or law, required to give any reasons for revoking the licence on those grounds.
(3) The Commissioner of Police may revoke a licence by serving personally or by post on the licensee a notice stating that the licence is revoked and the reason for revoking it.
(4) The revocation of a licence by such a notice takes effect when the notice is served or on a later date specified in the notice.
(5) The Commissioner may, by serving a further notice on the holder of a licence, cancel a notice revoking a licence before the notice takes effect.
“[22] The power conferred on the Commissioner by s 24 to revoke licences granted under the Act is also broad, as the extract from s 24(2) set out above, illustrates.
[23] In Kocic v C**ommissioner of Police NSW Police Force (2014) 88 NSWLR 159; [2014] NSWCA 368, Basten JA, at [1], referred to ‘the significant emphasis . . . placed [by the Act] upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant.’
[24] The public interest in the context of firearms legislation (the Act and the Weapons Prohibition Act) requires that those who are licensed to possess and use firearms be strictly vetted. The capacity of firearms to kill and cause grievous bodily harm makes control of their manufacture, possession and use essential in any civilised society. The system of licensing provided for by the Act is an important aspect of the legislative controls on the use, possession and manufacture of firearms.”
Her Honour noted that, in order to ascertain the meaning of the “public interest” in the context of cl 19 (the text of which is identical to the relevant cl 20 in this case), it was necessary to consider the Act as a whole, including s 3: at [20].
I agree with the remarks of Judicial Member Britton in Turner v Commissioner of Police*, New South Wales Police Service* [2001] NSWADT 169 at [32] that whilst the Firearms Act provides no express guidance as to how the discretion in s 24(2) should be exercised, context, purpose and principle provide that the discretion to revoke a firearms licence should be exercised in a way which promotes the purpose and objects of the Firearms Act. The improvement of public safety by promoting the safe and responsible storage of firearms are important underlying principles of the Act. One of the objects of the Act is to ensure that firearms are stored and conveyed in a safe and secure manner: s 3(2)(e).
Parliament has identified the safe storage of firearms as a central and critical objective of the Firearms Act. As Part 4 of the Firearms Act makes clear, the manner in which firearms are to be stored is not left to the discretion of licence holders; it is subject to detailed and prescriptive requirements imposed on all licensees.
These guiding principles take on a particular significance in the context of a judicial review which, as I will explain, has at its heart questions of statutory construction.
5 Offences that disqualify applicants
(1) For the purposes of sections 11 (5) (b) and 29 (3) (b) of the Act, the following offences are prescribed—
(a) Offences relating to firearms or weapons
An offence relating to the possession or use of a firearm or any other weapon, or a firearm part or ammunition, committed under—
(i) the law of any Australian jurisdiction, or
(ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction).
…
(2) Persons subject to good behaviour bonds For the purposes of sections 11 (5) (d) and 29 (3) (d) of the Act, the following offences are prescribed in respect of a person subject to a good behaviour bond—
(a) an offence referred to in subclause (1) (a), (c), (e) or (g)–(k),
(b) an offence in respect of a prohibited plant or prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985, or a prescribed restricted substance within the meaning of the Poisons and Therapeutic Goods Regulation 2008, committed under—
(i) the law of any Australian jurisdiction, or
(ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction),
(c) an offence committed under the law of any Australian or overseas jurisdiction, being—
(i) an offence involving the infliction of actual bodily harm upon a person, or
(ii) an offence involving kidnapping or abduction, or
(iii) an offence involving stalking or intimidation, or
(iv) an offence of attempting to commit, threatening to commit or conspiring to commit an offence referred to in subparagraphs (i)–(iii),
(d) an offence under the law of any Australian or overseas jurisdiction involving fraud, dishonesty or stealing.
(3) Persons subject to community correction orders or conditional release orders For the purposes of sections 11(5)(d) and 29(3)(d) of the Act, the following offences are prescribed in respect of a person subject to a community correction order or a conditional release order—
(a) an offence referred to in subclause (1)(a), (c), (e) or (g)–(k),
(b) an offence in respect of a prohibited plant or prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985, or a prescribed restricted substance within the meaning of the Poisons and Therapeutic Goods Regulation 2008,
(c) an offence involving any of the following—
(i) the infliction of actual bodily harm on a person,
(ii) kidnapping or abduction,
(iii) stalking or intimidation,
(iv) fraud, dishonesty or stealing,
(d) an offence of attempting to commit, threatening to commit or conspiring to commit an offence referred to in paragraph (c)(i)–(iii).
The effect of cl 5(3)(a) is that “[f]or the purposes of [section] 11(5)(d)” a relevant offence “prescribed in respect of a person subject to a community correction order or a conditional release order” is “an offence referred to in subclause (1)(a)”. It will be recalled here that a conditional release order was imposed on the plaintiff in relation to each offence.
Finally, cl 20 empowers the decision-maker to have regard to the public interest when assessing whether to revoke a licence:
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.
When the Firearms Act was enacted in 1996, it initially conferred a right of appeal to the Local Court by a magistrate sitting alone against what has been defined in the Act as a “firearms prohibition order”. Since that time, the Act was amended to confer power to conduct those reviews to the Civil and Administrative Tribunal, as explained by Beech-Jones J in Holdsworth v Commissioner of Police, New South Wales Police Force [2020] NSWSC 228 at [16]-[24].
At the outset I explained that this changed with the commencement of the Terrorism and Other Legislation Amendment Act which inserted further provisions into the Firearms Act, limiting the ability to seek merits review of “certain other decisions” (of which this is one) (per cl 44 of Part 13 of Schedule 3 to the Firearms Act).
The plaintiff advanced four grounds in support of his application. Perhaps understandably, given that this appears to be the first application for judicial review following the abolition of merits review in the Tribunal, much of the focus of the plaintiff’s submissions was on the merits of the case.
As I sought to explain during the hearing, however, the merits of the decision made by the Senior Adjudicator are not before me and to the extent the plaintiff sought to agitate the merits of the decision that attempt must fail.
“Police investigating the incident conducted a safe storage inspection of your firearms, detecting numerous issues relating to storage of ammunition and firearms. The initial police report stated that one of your firearms, unaccounted for during the inspection, was later found at your friend’s property. Further, additional firearms found at your property were not registered to you, including the firearm used by your friend.”
A broader submission was also made “that the [Officer-in-Charge] in this matter has created police computer system entries (COPS) which do not indicate the true story, that the Firearms Registry adjudication branch has relied upon those entries without initiating due diligence, including not providing the full story to the Firearm Registry or in the COPS system, and has then issued a Notice of Revocation which ultimately does not allow the plaintiff to address all the issues it then relies upon in the Statement of Reasons (SoR) to affirm such a decision. With NCAT now abolished for Firearm Licence appeals we seek the Supreme Court to address those errors of law.” That is, it was submitted that the charges the plaintiff faced in the Local Court were presented “in an entirely different form than was originally laid.”
The principle relied on by the plaintiff was that identified by the High Court in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29 in the following terms:
“[83] Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person….”
(Footnote omitted.)
“Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question….”
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [26], the High Court stated, “[i]t has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires.”
The test for whether a plaintiff has been afforded procedural fairness is whether the plaintiff had been accorded “practical justice”: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] (Gleeson CJ).
In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45], the majority (Bell, Gageler and Keane JJ) stated that “[a] breach is material to a decision only if compliance could realistically have resulted in a different decision”.
In the present case, the decision-maker was required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material: Alphaone at 592. Identifying whether there is any adverse conclusion which has been arrived at is a process of construing the decision-maker’s reasons.
In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271–272 (Brennan CJ, Toohey, McHugh and Gummow JJ), the High Court warned against straying into “the merits of the decision”. Importantly, the Court said:
“When the Full Court referred to ‘beneficial construction’, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be ‘concerned with looseness in the language … nor with unhappy phrasing’ of the reasons of an administrative decision-maker. The Court continued: ‘The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:
‘The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.’”
(Emphasis added; footnotes omitted.)
“[50] The statutory scheme outlined above demonstrates with sufficient clarity that there is no reasonable opportunity for an adjudicator to identify all relevant material which may be adverse to the plaintiff’s interests, communicate that information to the plaintiff and then permit the plaintiff an opportunity to respond to it, before making a decision within the prescribed time frame. Thus the statutory scheme does not permit an obligation of procedural fairness of the kind assumed by the plaintiff.”
There is much to be said for proposition that this reasoning does not apply in the circumstance where merits review is no longer available. I have determined that I should approach this case on the basis that the Firearms Act does not exclude an obligation to identify all relevant material which may be adverse to the plaintiff’s interests, communicate that information to the plaintiff and then permit the plaintiff an opportunity to respond to it, before making a decision. The correctness of this passage in Solomon should await a case where it is argued.
Dealing first with reading the impugned passage in the way the High Court has cautioned that I should, I conclude that the correct way of reading it is that Mr Spence was initially charged with certain offences but, ultimately, he was found guilty of only a narrow sub-set of those offences. It is the findings of guilt and the subsequent imposition of CROs which comprise the reasons for coming to a conclusion adverse to the plaintiff and not any preliminary observations about the initial charges. This was made clear in the following passage of the Delegate’s Decision:
“… Police investigating the incident conducted a safe storage inspection of your firearms, detecting numerous issues relating to storage of ammunition and firearms. The initial police report stated that one of your firearms, unaccounted for during the inspection, was later found at your friend’s property. Further, additional firearms found at your property were not registered to you, including the firearm used by your friend. Police also located a 30 round F88 AUS Steyr magazine. Your firearms licence was suspended. On 28 October 2024 you were charged with numerous firearms related offences (E 173867402).
- On 11 August 2025 you were found guilty without conviction and entered into a Conditional Release Order for 12 months for the following offences:
- Holder of Category A or B licence not have approved storage
- On 11 August 2025 you were found guilty without conviction and entered into a Conditional Release Order for 18 months for the following offences:
- Possess or use a prohibited weapon without permit-T2
- On 11 August 2025 you were found guilty without conviction and entered into a Conditional Release Order for 9 months for the following offences:
- Fail to provide Comm particulars when firearm acquired
- Fail to provide Comm particulars when firearm acquired
- Fail to provide Comm particulars when firearm acquired”
The use of the word “initial” at the outset of the impugned passage in context is important. That part of the passage describing the “initial police report” is, in context, a statement of background relevance only and is not material to the ultimate decision to affirm the revocation of the licences. What was important, and what was dispositive here, was the information contained in the three bullet points recording the findings of guilt and imposition of the CROs. The information contained in those paragraphs was factually correct and well known to the plaintiff prior to the decision being made.
The plaintiff argued that, if the information in the impugned passage was found to be relevant, there should have been an opportunity to cross-examine “under procedural fairness guidelines”. Respectfully, this submission is misconceived. First, read fairly and in context, the impugned passage set out simply that the plaintiff had “initially” been charged with various matters. The dispositive reasoning was limited to the offences for which he was found guilty, a clear sub-set of the initial charges. Secondly, the plaintiff’s rights, even if enlivened here, would be limited to commenting, by way of submission, upon adverse material which was before the decision-maker.
The plaintiff next submitted that there was a denial of natural justice where it was stated in the Delegate’s Decision that the plaintiff’s licence was revoked on the basis of his CRO, where that was not stated in the Notice of Revocation. The plaintiff appeared to suggest that this was therefore not able to be appropriately addressed in the Internal Review Request.
The plaintiff submitted that the delegate’s reliance on the CRO was a “denial of Natural Justice” because “[t]his was not stated in the Notice of Revocation and therefore not appropriately [addressed] in the Internal Review Request”. I reject this submission. The delegate’s reliance on the CRO was not a “denial of Natural Justice”. It was expressly relied on in the Notice of Revocation. The Notice of Revocation expressly referred to “[s]ection 11(5)(d)(iii) of the Firearms Act” which “prescribes that the Commissioner must not issue a licence to a person who is subject to a conditional release order imposed in New South Wales in relation to an offence prescribed by the regulations”.
In any event, the plaintiff was plainly aware of the issue which was “apparent from [the] nature” of the decision and “the terms of the statute under which it is made” (Alphaone at 591–592); that is, s 24(2) and s 11(5)(d)(iii) of the Firearms Act.
This awareness is clear from the submissions made on the plaintiff’s behalf in the Internal Review Request:
“From the matter of Burey v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 344, which [addressed] the situation of a current bond as well as possession of prohibited items, it overturned the decision to revoke his firearm licence, with the reasoning at 62-63 … [Extract of the Tribunal’s reasons not reproduced.]
So in this case Mr Spence has a long record of conscientious compliance and therefore should be given that benefit.”
It is true that the paragraphs of the Tribunal decision referred to in the above passage (that is, [62]-[63]) specifically address the exercise of discretion under s 24(2) in a case involving a “person who is convicted of a prescribed offence or made subject to a CRO”. However, at the risk of repetition, that was a decision on the merits on the facts in that case. For present purposes, the reference to Burey is a clear indication that the plaintiff’s representatives were addressing the case based on an understanding that the decision was made on the basis that the plaintiff was subject to the CRO.
It was also submitted that there have been “many NCAT cases” which addressed the differential treatment between existing licence holders and new licence holders, citing Burey at [60]-[63]. It was submitted that the plaintiff had a long history of being a licensed firearms holder without coming to the attention of the authorities. It was noted that primary producers have received “special consideration from NCAT”; citing Burey at [120] and Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272 at [62].
This submission is a direct, and impermissible, appeal to the merits of the decision. The alleged differential treatment between existing licence holders and new licence holders was a matter addressed by the plaintiff in his Internal Review Request and taken into account by the delegate. There was no denial of procedural fairness. Burey and Romanos were cases about the merits of a decision. The fact, if it be a fact, that primary producers received “special consideration from NCAT” as part of various merits review decisions does not establish any reason why as a matter of statutory construction, the decision-maker here had to afford “special consideration” lest he or she fall into relevant error.
The plaintiff next complained about the decision-maker taking into account “hearsay” comments. So far as “hearsay” material was taken into account by the decision-maker, Brennan J explained in Re Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; 2 ALD 33 at 41 that, in the context of administrative decision-making, “[f]acts can be fairly found without demanding adherence to the rules of evidence.” His Honour also approved a statement to the effect that there is no “blanket rejection … of administrative reliance on hearsay irrespective of reliability and probative value” but, rather, a decision-maker “is entitled to have regard to evidence which is logically probative whether it is legally admissible or not”: at 41–42.
It was next submitted by the plaintiff that the storage was compliant in that “ammunition in a separate compartment at the top of the gun safe… is separate from the receptacle containing the firearms” and that the conclusion to the contrary was not tested. For present purposes, all that needs be said is that Mr Spence was aware of the relevant issue and made detailed submissions about it which were taken into account.
As to the plaintiff’s broader complaint about the “police computer system entries (COPS) which do not indicate the true story”, whilst it is true that COPS entries were referred to by the Adjudication Officer, with the exception the material set out at [56] above, it has not been shown that that Adjudication Officer took into account or relied upon any material from the COPS entry and it is not apparent that he or she has done so.
Ground 1 should be dismissed.
“At the top of page 5 of the SoR it is written, “Therefore, I believe that your licence should be revoked on the grounds of your CRO.” This was not stated in the Notice of Revocation and therefore not appropriately address in the Internal Review Request. There is a denial of Natural Justice here. There has been many NCAT cases which have addressed this particular point, as to the legislation regarding existing firearm licence holders differently to new applicants [Burey v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 344 at 60-63].”
(Emphasis added.)
The plaintiff took this point no further in oral argument.
As McHugh, Gummow and Hayne JJ pointed out in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [74], by reference to Quin at 35–36, “the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law”, and not “with the process of making the particular findings of fact upon which the decision-maker acts.”
In Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; [2013] NSWCA 180, Basten JA said:
“[9] … The term ‘relevant considerations’ is widely misunderstood: as used in leading authorities, such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39 per Mason J, it refers to a matter which the decision-maker is bound to take into account. The obligation may derive from the express terms of the power-conferring statute or may be implied from its subject matter, scope and purpose. A preferable term would be ‘mandatory consideration’. Further, a matter traditionally described as an ‘irrelevant consideration’ is one which is prohibited because, having regard to the subject matter, scope and purpose of the power being exercised, it can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious. Between these two categories is usually a wide range of permissible considerations which the decision-maker may weigh or disregard without committing an error of law.”
There is nothing in s 24(2) of the Firearms Act to suggest the COPS entries are “irrelevant considerations”. To the contrary, s 24(b)(ii) specifically contemplates the revocation power being enlivened when a licence holder “contravenes any provision of this Act or the regulations”, and, more generally, the decision-maker’s powers to grant, refuse, or revoke a firearms licence will turn upon evaluative considerations relating to “public safety” (s 11(3)(a)) and the “public interest” (s 24(2)(d) of the Firearms Act; cl 20 of the Firearms Regulation).
These features strongly suggest that police records, including COPS entries, are not legally impermissible material for a decision-maker to consider, including because they will contain “evidence which is logically probative” (Pochi at 42). The dispositive reasoning in the decision under review was that the Local Court had found the plaintiff guilty in relation to the offences identified in the COPS records and imposed CROs.
The plaintiff’s argument that the delegate took into account an “irrelevant consideration” by having regard to the “mandatory ground for refusing a new licence application” in s 11(5)(d)(iii) of the Firearms Act was not correct.
There is no express or implied prohibition in the statute on a decision-maker taking into account the mandatory refusal ground in s 11(5)(d)(iii) when deciding whether to revoke a licence. The power in s 24(2)(a) expressly allows for a decision-maker to consider any reason for which the licensee would be required to be refused a licence of the same kind, which therefore includes the “mandatory refusal grounds” in s 11.
The NCAT cases cited by the plaintiff are not contrary to that proposition. They simply note that the mandatory refusal provisions in s 11 are not discretionary, whereas the power in s 24(2) is discretionary. The passage from Burey relied upon by the plaintiff (at [62]) is an example of the Tribunal exercising its then existing merits jurisdiction. That is no longer possible. Within the limits of the law, that discretion now resides in the delegate of the Commissioner of Police.
There was no legal error in the reasoning of the delegate. The delegate correctly understood that the power under s 24(2) is discretionary. The delegate said:
“In assessing whether to exercise the discretion to revoke your licence, I give weight to the fact that the Commissioner must refuse an application for a licence from any other member of the public who is serving the same type of CRO as yours…
…
… I am satisfied that … it is not in the public interest for you to be authorised to possess or use firearms by way of a licence”.
Similarly, any error to fail to consider the evidence submitted by the plaintiff in this case would not rise to the standard of jurisdictional error. It does not, to adopt the language of Kirby J in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088, constitute a mistake by the decision-maker which “amounts to a basic misunderstanding of the case brought by an applicant”: at [88].
The decision-maker is not shown to have taken into account an irrelevant consideration. Ground 2 should be dismissed.
As I have set out at [84] above, whether something is a “mandatory relevant consideration” is a question of statutory construction. The plaintiff did not explain how any of the matters on which he relied were mandatory relevant considerations.
The plaintiff submitted:
“Throughout the NCAT case history it is repeatedly stated that past history is an indicator of future behaviour [See 106-107 of Burey] and that in this instance Mr Spence had been a licensed firearm holder without coming to the attention of authorities for a lengthy period of time.”
It was submitted that this factor, and that primary producers “have received a special consideration from NCAT”, did not “appear to have been adequately addressed.” The plaintiff complained that insufficient weight had been given to “the objective seriousness of the offending”, his remorse, his track record as a licence holder, and his low risk of reoffending. The plaintiff sought to rely on further evidence about the circumstances of his offences which was not before the decision-maker, which invited, in the words of the defendant, “impermissible scrutiny” of the delegate’s decision.
The plaintiff’s appeal is an appeal to the merits and does not identify any “mandatory relevant consideration” which was not taken into account by the delegate.
In any event, the delegate plainly did have regard to the matters raised by the plaintiff.
The delegate simply made a different decision on the merits. The delegate, for instance, acknowledged the circumstance that the plaintiff had been a licensed firearm holder “for a lengthy period of time” without coming to the attention of authorities, and acknowledged the potential “inconvenience” of a revocation decision but considered that these matters were outweighed by the “public interest”.
On the plaintiff’s second complaint under this ground, that the Queensland case of Commissioner of Police v XPR “should have been considered”, the defendant submitted that the case was, simply, readily distinguishable. That case turned on the construction of s 10B of the Weapons Act 1990 (Qld) and s 12(3) of the Penalties and Sentences Act 1992 (Qld). Section 12(3) of the Penalties and Sentences Act provided that “a conviction without recording the conviction is taken not to be a conviction for any purpose”, whereas s 24(2)(b)(ii) of the NSW Firearms Act provides the opposite: the power to revoke a licence can be exercised if the licensee “contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention”. The delegate was not obliged to consider a case that had no application to the case at hand. The decision-maker did not err in failing to consider a case from another jurisdiction that applies statutory provisions different in a critical respect. The statutory provisions considered in Commissioner of Police v XPR prohibited the consideration of convictions not recorded in the revocation of firearms licences. The provisions in New South Wales make explicit that contraventions of the Firearms Act or of the regulations, even those for which there is no conviction, can still be considered for the purposes of the granting of or revocation of a firearms licence.
As to the material annexed to the affidavit of Mr Kable sworn 8 May 2026, it was not an error for the decision-maker to fail to consider material not before them. That material comprised the following:
The second annexure comprised an email from Officer Furze, the officer in charge (“OIC”) of the matter, to the plaintiff’s wife, requesting information about the transfer of firearms.
The third annexure comprised a statement of police by the OIC, detailing steps taken in her investigation into the registration of the plaintiff’s firearms.
The fourth annexure comprised copies of emails in response to inquiries conducted by the OIC.
The fifth annexure comprised a statement by a Mr Lovell, a neighbour of the plaintiff who stated that he had given firearms to the plaintiff.
The sixth annexure comprised a statement of police by a Senior Constable Blackadder, in which he explained the operation of the COPS database and set out information revealed by police checks conducted in relation to the plaintiff’s firearms licence and the firearms in his possession.
The plaintiff submitted that this material “raises doubts about the veracity of the allegations in the COPS entries” by alleging that the relevant firearms dealer had breached his obligations. The first problem with this submission is that the only materials taken into account in the impugned decision were the guilty verdicts entered against the plaintiff and the CROs imposed.
The second problem is that this new material is addressed to the merits of parts of the COPS entry which formed no part of the decision under review. There was no obligation in the statute to make findings about the matters addressed by the new evidence and the decision-maker did nor err in failing to do so.
The decision-maker did not fail to take into account a mandatory relevant consideration. Ground 3 should be dismissed.
The reasonableness precondition to valid administrative action is implied into the relevant statute. A finding of legal unreasonableness, therefore, must relate to a finding that there has been a breach of the relevant Act. In addressing a complaint of unreasonableness, a court will usually confine itself to the transcript and evidence admitted at first instance, acknowledging the special advantages of the primary judge. Within those confines, however, an appellate court must assess for itself whether the decision-maker had acted unreasonably in the relevant sense: see Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Lawbook Co) at [3.280] including fn 208; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30.
In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, it was noted, relevantly, in a passage by French CJ writing separately but agreeing with the decision of Hayne, Kiefel, and Bell JJ, that:
“[30] The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody’s reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, ‘may have no particular legal consequence.’ As Professor Galligan wrote:
‘The general point is that the canons of rational action constitute constraints on discretionary decisions, but they are in the nature of threshold constraints above which there remains room for official judgment and choice both as to substantive and procedural matters. In other words, within the bounds of such constraints, different modes of decision-making may be employed.’
A distinction may arguably be drawn between rationality and reasonableness on the basis that not every rational decision is reasonable. It is not necessary for present purposes to undertake a general consideration of that distinction which might be thought to invite a kind of proportionality analysis to bridge a propounded gap between the two concepts. Be that as it may, a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves. That approach is an application of the principles discussed above and within the limitations they would impose on curial review of administrative discretions.”
(Footnotes omitted.)
“[54] The question of whether or not a decision made or action taken in purported exercise of a statutory power is legally unreasonable is accordingly a question directed to whether or not the decision or action is within the scope of the statutory authority conferred on the repository...”
“[79] That task requires the court to assess the quality of the administrative decision by reference to the statutory source of the power exercised in making the decision and, thus, assess whether the decision was lawful, having regard to the scope, purpose and objects of the statutory source of the power.
…
[84] …Where reasons are provided, they will be a focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power.”
(Footnotes omitted.)
“[26] A requirement of legal reasonableness in the exercise of a decision-maker’s power is derived by implication from the statute, including an implication of the required threshold of unreasonableness, which is usually high. Any legal unreasonableness is to be judged at the time the power is exercised or should have been exercised. It is not to be assessed through the lens of procedural fairness to the applicant. Instead, whether the implied requirements of legal reasonableness have been satisfied requires a close focus upon the particular circumstances of exercise of the statutory power: the conclusion is drawn ‘from the facts and from the matters falling for consideration in the exercise of the statutory power’.”
(Footnotes omitted.)
The plaintiff in this case challenged the delegate’s understanding of the public interest. It was submitted that the delegate stated the Firearms Act required firearms be possessed and used with “virtually no risk” to the public safety. The plaintiff argued that that test has been characterised as a judicial gloss that should not be taken as substantially the test: Laing v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 315 at [63]-[65].
The plaintiff submitted:
“At 13 of the defendant’s submissions they use the words, ‘anomalous and unfair to other members of the community’, to justify revoking the plaintiff’s firearms licence, yet the wording of the Firearms Act clearly defines, by using the words ‘must not be issued’ [Firearms Act 1996 s 11(5)(d)], or ‘maybe revoked’ [Firearms Act 1996 s 24(2)], that relying on this attribution in coming to a decision is arguably irrelevant.”
The plaintiff sought to develop the argument of legal unreasonableness by stating that “the process might have been technically followed, but the resulting decision is so disproportionate or illogical that it points back to an underlying flaw in logic”. This was argued to have “triggered the 7th ground in the Eden case”, that is, Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28. This was so, as argued by the plaintiff, because:
The ammunition stored in the safe was locked within it, and the improper storage indicated in the statement of reasons was “more a technical breach than anything else”;
The prohibited magazine in the possession of the plaintiff did not fit his guns and he stated he was “unaware of what it was”; and
The plaintiff reasonably believed that the three firearms within his possession not registered in his name were, in fact, registered in his name.
The plaintiff submitted that the lack of registration of one of the firearms at issue, involved in the injury on his property that brought to the attention of the police the firearms offences that he was ultimately charged with, was the fault of the dealer that he purchased the gun from, not the plaintiff. It was suggested that there was “further evidence” contained in the affidavit of Mr Kable sworn 8 May 2026 that “raises doubts about the veracity of the allegations in the COPS entries”, in relation to the changeover of the registration of the firearms. It was, however, also acknowledged that it was the plaintiff’s obligation to ensure compliance with firearm registration requirements; “hence the plea of guilty at the first opportunity”. The plaintiff’s submission is perhaps simply best set out in full:
“… We reiterate that given the evidence lodged outside of the Bundle that was not considered by the adjudicator in this matter, at 42 of the Respondent’s submissions, referring to ‘impermissible scrutiny’ is clearly not contextually correct, in that if a relevant fact is known to police, that potentially could influence the outcome, that fact needs to be 7At page 17 of the Bundle of Evidence placed before the adjudicator. The inference remains that the Swan Hill Firearms Dealer has failed in other respects in relation to the 3 firearms as appendix 2 to the affidavit of Glenn Desmond Kable states “Kohlman has confirmed that this transfer was done through Swan Hill”.
It is the plaintiff’s submission that the adjudicator in this matter has acted either ‘arbitrarily or capriciously’, has not provided the plaintiff with sufficient detail of the reasons for the revocation, has adjudicated on those reasons with a reliance on unsubstantiated and opinionated entries in the police computer system, which did not include other relevant material which may have influenced the outcome, has relied upon a ‘test’ for public interest which has been regarded simply as a ‘judicial gloss’, and not in fact a test at all, has asserted an opinion as to what is regarded as ‘public safety’, and has reached an ‘Outcome-focused’ conclusion.”
(Emphasis in original.)
I have concluded that the reasons in the present case demonstrate an “evident and intelligible justification” (Li at [76] (Hayne, Kiefel, Bell JJ)) for giving less weight to the matters relied upon by the plaintiff, and more weight to the public interest and to public safety.
Section 3(1)(a) of the Firearms Act states that an underlying principle of the Act is “to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety”. The delegate’s justification is consistent with and reflects the “scope, purpose and objects of the statutory source of the power”: SZVFW at [79].
The decision under review was not legally unreasonable. Ground 4 must be dismissed.
For the foregoing reasons the application for judicial review must be dismissed. I make the following orders:
Extend time for commencing the proceedings to 9 February 2026.
The Amended Summons dated 1 May 2026 is dismissed.
The plaintiff to pay the defendant’s costs.
**********
Spence
Commissioner of Police, New South Wales Police Force
[2001] HCA 30
[2003] HCA 6
[2006] HCA 63
(2012) 83 NSWLR 302
(1990) 170 CLR 1
(1994) 49 FCR 576
(2018) 264 CLR 123
(2013) 85 NSWLR 86
(2020) 271 CLR 550
(2016) 240 FCR 158
(2019) 264 CLR 421
(2016) 259 CLR 180
(2018) 264 CLR 541
(2013) 249 CLR 332
(1996) 185 CLR 259
(2001) 206 CLR 323
(2018) 264 CLR 1
(2003) 214 CLR 1
(2006) 228 CLR 152
(2014) 86 NSWLR 674
(1995) 184 CLR 163
(1988) 13 NSWLR 368
(2014) 88 NSWLR 159