(2) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NCAT Act), the publication of the Confidential Material, or any matters contained in the Confidential Material, is prohibited.
[2]
(3) Pursuant to ss 64(1)(c) and (d) of the NCAT Act, the contents of all paragraphs in these Reasons marked '[Not for publication]' are not to be published or released to the Applicant or the public.
[3]
Introduction
The Applicant has had a firearms licence in New South Wales since early 2006, and in Queensland and Western Australia for several years before that.
In November 2020 the Firearms Registry of the respondent Commissioner revoked the Applicant's licence. The licence has since expired in any event; it was issued on 14 March 2016 for a five-year period that came to an end on 14 March this year.
An internal review by the Firearms Registry affirmed the revocation decision. The Applicant has now applied for external review of that decision.
The Tribunal has jurisdiction to undertake the external review: s 9(1) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and s 75(1)(c) of the Firearms Act 1996 (NSW).
Subsection 63(1) of the ADR Act provides that in determining the application, the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it.
In that context there are two possible 'correct and preferable' decisions: either the licence should be revoked, or it should not be. But even if the Tribunal were to decide the licence should not be revoked, that would not result in the reinstatement of the earlier licence since it has already expired. The Applicant would still need to make a fresh application to the Firearms Registry: see Sawires v Commissioner of Police [2010] NSWADTAP 68 at [12] (the reasoning is pertinent to this case even though it is in respect of a different licensing regime - the Security Industry Act 1997 (NSW)).
[4]
The licence, and the revocation decision
The licence that was held by the Applicant is described as a 'Category ABH Firearms Licence'. A licence of that kind authorises the licensee to possess or use certain specified rifles, shotguns and pistols (Firearms Act, s 8) but only if (among other things) the Commissioner is satisfied that the person has a 'genuine reason for possessing or using the firearm' (s 12(1)).
The Firearms Act s 24(2)(a) authorises (but does not mandate) the revocation of a licence 'for any reason for which the licensee would be required to be refused a licence of the same kind'.
The Firearms Act s 24(2)(d) authorises (but again, does not mandate) the revocation of a licence 'for any other reason prescribed by the regulations'. Clause 20 of the Firearms Regulation 2017 (NSW) (the Regulations) provides one such reason - 'if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence'.
The revocation letter dated 30 November 2020 from the Firearms Registry relied on both s 24(2)(a) - the 'no genuine reason' ground (s 12(1)) - and s 24(2)(d) of the Act - the 'public interest' ground (cl 20 of the Regulations).
The 'no genuine reason' ground was supported by the finding, as it was put to the Applicant, that 'you hardly ever use your firearms'.
The 'public interest' ground was supported by concerns held by the Registry for the Applicant's mental health, leading to a finding that his 'ability to possess and handle firearms may be impaired'.
[5]
Internal review - the 'no genuine reason' ground
On internal review the following findings relevant to this ground were made:
When the Applicant was first issued with a Category AB licence in 2006 it was for the genuine reason of Recreational Hunting/Vermin Control based on his ownership of rural land in the Hunter Valley;
Category H was added to the Applicant's licence in 2010 for the genuine reason of Sport/Target Shooting based on his membership of the Cessnock Pistol Club;
In about 2016 the Applicant moved to the Northern Rivers region of New South Wales;
The Applicant's membership of the Cessnock Pistol Club expired in 2015;
The Applicant did not appear to hold membership of any other approved target shooting club and he appeared not to have fulfilled his Category H target shooting participation requirements with any other club pursuant to clause 106 of the Regulations.
I did not understand the Applicant to dispute any of those findings. I accept them as accurate and find accordingly.
[6]
Internal review - the 'public interest' ground
The internal review decision noted that:
In early July 2020 information made available to Police alleged that the Applicant may have undiagnosed mental health issues, possibly bipolar disorder;
The Applicant's licence was suspended on 13 July 2020 and a Notice of Suspension was served on the Applicant the next day;
In August 2020 the Applicant was sent a request for a risk assessment questionnaire to be completed by a mental health professional to assist in determining his suitability to remain licensed;
In November 2020 the Registry received a report from Dr Ian Hayes in which Dr Hayes opined that, among other things, the Applicant was currently neither depressed nor in grief; there was no risk that the Applicant's current condition impacted his ability to have continuous and responsible control of firearms; and the Applicant's condition did not have the potential to put public safety at risk.
The internal review officer regarded Dr Hayes' report as 'mainly favourable' but pointed out that the report was 'brief' and lacked some information that could have given more context and support to his opinions.
[7]
Internal review - overall outcome
The internal review officer concluded as follows:
You initially came to notice for reasons relating [to] your mental wellness. In this regard, I accept that Dr Hayes' report had many positives (sic) elements. However, based on the information he provided I am not satisfied that concerns regarding your mental health have been entirely allayed. Further, Dr Hayes did not demonstrate the criteria he applied to reach his opinions.
Moreover, during the course of this review, I have established that you have not upheld your legislative obligations regarding your Category H licence or your requirement to notify a change of address. Accordingly, for the reasons outlined above, I believe the correct decision is to affirm the original decision, although I reached that conclusion based on varied grounds.
[8]
The Tribunal's review
The real contest in this case was in relation to the Applicant's mental health. That is not to downplay the seriousness of the Applicant's transgressions in respect of his failure to notify a change of address, his initial failure to get the paperwork right when he moved to New South Wales from interstate, and his failure to join a pistol club when he moved away from the Hunter Valley. On the last point the Applicant did provide some evidence of his attempts to join a new club but in any event they are matters that would need to be taken into account on any future application for a firearms licence.
On the mental health question the Applicant obtained a further report from Dr Hayes: Annexure B in the Applicant's bundle. I agree with the Commissioner's representative's characterisation of this report - it 'moves the needle' in the Applicant's favour. But even so, the Applicant remained concerned that the information initially provided to the Registry, supposedly about the Applicant's mental health, may have actually been in relation to someone other than himself. He thought it might have been about someone who had lived at one of the Applicant's previous addresses, but at a different time: in short, perhaps it was a case of mistaken identity.
To eliminate that possibility I ordered the Respondent to provide to the Tribunal a copy of any document in its possession that provided or recorded information relating to the Applicant's mental health and which raised concerns about the Applicant's ability to possess and use firearms. The hearing was adjourned for 10 days to allow production of any such document.
The hearing resumed on 21 June 2021. The Commissioner had produced material in response to the order but sought an order under s 59 of the ADR Act releasing the Commissioner from the requirement to lodge the material under s 58. I made that order. It is necessary to make consequential orders and I now do so.
[9]
The Confidential Material
The Confidential Material relates to the Applicant.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[10]
Consideration
Dr Hayes' second report, viewed in isolation, may very well support a decision to set aside the revocation decision, at least as far as the 'public interest' ground is concerned. But the report does not exist in a vacuum; the Confidential Material also has to be taken into account.
In light of the confidentiality orders the Applicant is figuratively blindfolded, with both hands tied behind his back. In those circumstances the Confidential Material is untested and possibly inaccurate but, on the assumption it is reliable, I am satisfied that it is not in the public interest for the licensee to continue to hold the licence.
For that reason it is unnecessary to address the 'no genuine reason' ground or the Applicant's transgressions referred to in [18] of these reasons.
For completeness, I mention a number of other factors that, all things being equal, could conceivably weigh in the Applicant's favour if he were to apply again for a firearms licence. They are:
The Applicant's unblemished criminal history;
The Applicant's service as an RAAF officer for 13 years, during which he utilised firearms in the service of his country; and
The Applicant's previous compliance with legislation requiring the safe storage of firearms.
[11]
Decision
1. The decision under review is affirmed.
[12]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 23 July 2021