Beech v Commissioner of Police, NSW Police Force

[2025] NSWCATAD 185

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Beech v Commissioner of Police, NSW Police Force [2025] NSWCATAD 185

Hearing dates:

26 May 2025

Date of orders:

25 July 2025

Decision date:

25 July 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Falk, Senior Member

Decision:

The decision under review is affirmed

Catchwords:

ADMINISTRATIVE LAW – administrative review – firearms licence – public interest – mental health – failure of medical evidence to provide risk assessment of suicidal ideation – whether Tribunal can be satisfied no real and appreciable risk to public safety

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Cases Cited:

AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5

Briginshaw v Briginshaw (1938) 60 CLR 316

Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42

Constantin v Commissioner of Police [2013] NSWADTAP 16

Cruickshank v Commissioner of Police [2022] NSWCATAD 115

Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50

Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134

Davos v Commissioner of Police [2013] NSWADT 7

DEP v Commissioner of Police, NSW Police Force [2023] NSWCATAD 298

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Elley v Commissioner of Police, NSW Police Force [2023] NSWCATAP 237

Grant v Commissioner of Police [2020] NSWCATAD 158

Health Care Complaints Commission v Coleman [2025] NSWCATOD 78

Hogan v Hinch (2011) 243 CLR 506

Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97

Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276

McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70

Minister for Immigration and Citizenship v Li [2013] 297 ALR 225

Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10

Smith v Commissioner of Police, NSW Police Force [2024] NSWCATAD 233

Sterjovski v Director-General, Department of Transport [2002] NSWADT 10

Sullivan v Civil Aviation Authority (2014) 22 FCR 555

Ward v Commissioner of Police [2000] NSWADT 28

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Claire Beech (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Self-Represented (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2025/00001344

Publication restriction:

None

REASONS FOR DECISION

Overview

1. The Applicant Ms Beech (Applicant) applies to the Tribunal to review an internal review decision of 2 December 2024 made by the Commissioner of Police, NSW Police Force (Respondent). The Respondent affirmed an earlier decision of 23 July 2024 to refuse the renewal of the Applicant’s Category ABC firearms licence.

2. The Applicant was first issued with a firearms licence in 2014 which was renewed in 2019 for a further 5 year period. On 7 May 2024 the Applicant applied to renew the licence for the purposes of recreational hunting, vermin control and primary production. In this licence application the Applicant disclosed that she had been treated for anxiety and depression for approximately 6 months following a job loss in May 2023.

3. The decision to refuse to renew the firearms licence was made under section 11(7) of the Firearms Act 1996 which gives the Commissioner a discretion to refuse to issue a licence “if the Commissioner considers that issue of the licence would be contrary to the public interest.”

4. The Respondent’s position is that the Tribunal should affirm its decision not to issue the firearms licence to the Applicant. The Respondent submits that the Applicant has a history of mental health issues and remains on medication and has experienced suicidal ideations and required further counselling as recently as August 2024.

5. The Applicant wants the Tribunal to set aside the Respondent’s decision and substitute it with a decision that the licence be granted. The Applicant’s position is that she did not disclose suicidal ideations, and she has two positive assessments from her treating medical professionals indicating no concerns.

6. The Applicant says she needs the licence to use firearms for the humane euthanasia of stock whilst working on her cattle farm. While the Applicant’s domestic partner has a firearms licence, they are not always present on the property when euthanasia is required.

7. The issue for determination by the Tribunal is whether it is contrary to the public interest to issue the licence. In this case, the Tribunal must consider whether the Applicant’s mental health poses an appreciable risk to public safety that warrants the refusal. For the reasons which follow, the Tribunal has concluded that the Respondent’s decision to refuse the licence should be affirmed.

Material before the Tribunal

Respondent

8. The Respondent relies on written submissions and made oral submissions at the hearing.

9. The Respondent relies on the following documents:

1. Brief of s 58 of the Administrative Decisions Review Act 1997 (ADR Act) documents filed 7 February 2025

2. Supplementary bundle of s 58 ADR Act documents filed 21 May 2025

3. Submissions filed 4 April 2025

4. Supplementary bundle of s 58 ADR Act documents filed 4 April 2025.

Applicant

10. The Applicant relies on written submissions, made oral submissions, provided oral evidence and was cross examined at the hearing.

11. The Applicant relies on the following documents:

1. Administrative review application form with attachments filed 30 December 2024

2. Submissions with attachments filed 7 March 2025.

12. The documents provided by both parties contain medical evidence. The medical evidence is listed below at [13].

Medical evidence

13. The material before the Tribunal referred to above includes the following medical evidence:

1. Navigator Group Primary Psychological Program Confidential Psychological Report dated 15 August 2023 (first Navigator report)

2. Independent Medical Examination from Medicins Legale dated 23 August 2023 (Medicins Legale report)

3. Navigator Group Primary Psychological Program Confidential Psychological Report dated 12 October 2023 (second Navigator report)

4. Psychiatrist risk assessment report dated 30 July 2024 (psychiatrist’s report)

5. General Practitioner assessment letter dated 21 November 2024 (GP report)

6. Updated General Practitioner assessment letter dated 3 February 2025 (updated GP report)

7. Medical notes from the General Practitioner from 6 June 2022 to 10 March 2025 (GP medical notes).

Statutory framework

14. Under s 75(1)(a) of the Firearms Act a person may apply to the Tribunal for review under the ADR Act of a refusal by the Commissioner of Police (the Commissioner) to issue a licence to the person.

15. Under s 63 of the ADR Act the Tribunal must decide what the correct and preferable decision is having regard to the material before it.

16. Under s 11(1) the Commissioner may issue a licence in respect of an application or refuse any such application.

17. Under s 11(7) of the Firearms Act the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

18. The principles of the Firearms Act are set out in s 3(1). Relevantly they are to “confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety”, and “to improve public safety - by imposing strict controls on the possession and use of firearms”, and “by promoting the safe and responsible storage and use of firearms.”

19. The objects of the Firearms Act in s 3(2) include to provide strict requirements that must be satisfied in relation to licensing of firearms.

Legal principles

Exercise discretion in accordance with the statutory context

20. The Firearms Act does not provide any guidance on how the discretion in s 11(7) should be exercised. In Minister for Immigration and Citizenship v Li [2013] 297 ALR 225, the majority of the High Court stated at [67]:

“[W]here discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object.”

21. Determining whether something is in the public interest is informed by the relevant provision that prescribes the public interest as a criterion: Health Care Complaints Commission v Coleman [2025] NSWCATOD 78 at [29] citing Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [31]; McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70;[2005] FCAFC 142 at [9]-[15].

22. Previous cases have decided that the Tribunal must exercise its discretion in a manner that promotes the principles and objects of the Firearms Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23].

23. Accordingly, the question for the Tribunal is whether to refuse or grant the firearms licence having regard to s 11(7) in its statutory context, which includes exercising the discretion in a way that promotes the principles and objects of the Act: Cruickshank v Commissioner of Police [2022] NSWCATAD 115 at [29]; Grant v Commissioner of Police [2020] NSWCATAD 158 at [31].

24. Under the Firearms Act, public safety is the primary consideration: Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134. The interest of an applicant in obtaining a firearms licence is subordinate to that consideration: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 at [69].

Determining the public interest

25. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] the Appeal Panel made clear that the public interest may include "…concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.”

26. In Davos v Commissioner of Police [2013] NSWADT 7 at [117], the Tribunal stated:

“The legislature has determined that imposing strict controls on the possession and use of firearms is the best way of improving safety. The most fundamental principle of the Act is that the possession and use of firearms is conditional upon the overriding need for public safety. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences.”

27. Previous Tribunal decisions have considered the meaning of tests to be satisfied in the Firearms Act: see “virtually no risk” in Ward v Commissioner of Police [2000] NSWADT 28 at [28], and “real and appreciable risk” in Elley v Commissioner of Police, NSW Police Force [2023] NSWCATAP 237.

28. In AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [8], referring to Ward the Tribunal clarified that

“The ‘virtually no risk’ comment was made in the context of the ‘fit and proper person’ test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests.”

29. In Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [66], the Tribunal stated:

“The question of risk is therefore not viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety.”

30. In Elley v Commissioner of Police, NSW Police Force [2023] NSWCATAP 237 at [48] the Appeal Panel confirmed that in assessing the nature and extent of the risk when considering whether issuing a firearms licence would be contrary to the public interest. “[O]nly real and appreciable risk needs to be taken into account”.

Considering mental health and the public interest

31. The mental health of an applicant is a consideration in the context of firearms licences: see Smith v Commissioner of Police, NSW Police Force [2024] NSWCATAD 233 at [31] and DEP v Commissioner of Police, NSW Police Force [2023] NSWCATAD 298 at [73].

32. Not every suicide attempt will justify the revocation of the person's firearms licence: AML v Commissioner of Police, NSW Police Force [2013] NSWADT 5 at [22].

Standard of proof and onus

33. The Tribunal is required to base its findings of fact on logically probative material: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62 and 68; and Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 at [5]-[8], [15]-[17]. The standard of proof applying in this review is the balance of probabilities.

34. These is no burden or onus of proof on either party: see Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28]-[34]. The standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89]-[91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10]-[12]. However, they provide guidance for the Tribunal’s exercise of jurisdiction.

Issues to be decided

35. To decide whether the issue of a licence would be contrary to the public interest in this case, the Tribunal must consider whether the Applicant’s mental health poses a real and appreciable risk to public safety if the licence was granted, having regard to all the circumstances.

Consideration

Is there a real and appreciable risk to public safety if the licence was granted, having regard to all the circumstances?

Inconsistent medical evidence

Psychiatrist’s report July 2024

36. The medical evidence shows that the Applicant has seen a psychiatrist since October 2020 for anxiety and depression following domestic issues. The Applicant attended regularly until May 2021 when she was discharged to her General Practitioner (GP).

37. In May 2023 the Applicant presented to the psychiatrist for a single review of medication in the context of workplace issues and was discharged to her GP again. The Applicant presented to the psychiatrist again in June 2024 for the purposes of preparing the mental health risk assessment for her firearms licence application.

38. The psychiatrist’s report provided an expert medical opinion that the Applicant’s mental state exhibited no concerns. The Applicant had a background of Major Depression Disorder which was currently well managed, she took medication and was compliant with treatment. There were no concerns with the Applicant’s judgement and ability to possess and use firearms.

39. Due to the nature of depressive disorders the psychiatrist’s report noted there was a chance of relapse, however the Applicant’s trajectory had been stable and the personal stressors which caused her depression were resolved.

Second Navigator report 12 October 2023

40. The controversy in this matter results from a reference made in the second Navigator report. The purpose of the second Navigator report was to assess progress following therapy sessions undertaken by the Applicant related to her Workers Compensation claim. The second Navigator report was authored by a psychologist.

41. The second Navigator report notes that as the Workers Compensation claim was denied, the assessment will be the final report and no further therapy sessions have been approved.

42. The second Navigator report stated that:

Ms Beech reported that she had suicidal ideation but denied any intent or plans. She noted that she would not do anything to hurt herself as this would significantly impact her husband and children.

43. Unfortunately the report from the Applicant’s treating psychiatrist of 30 July 2024, the psychiatrist’s report, did not consider the second Navigator report of 12 October 2023. Of particular relevance is that the psychiatrist’s report stated that:

“There are nil concerns re suicidality. She is future focused and her family are her strong protective factor. There is nil past history of self-harm or suicidal ideations.”

44. The psychiatrist was cross examined at the hearing and gave evidence that at the time of making her report she was not aware of the second Navigator report. When asked by the Tribunal whether the information on suicidal ideation would impact her risk assessment if known, the psychiatrist indicated that it would feature in her conclusion but that she would want to know the context in which it was said and the current situation, noting that while it is a risk it should be studied in context, in particular that there was no intent or plans.

45. At the hearing the psychiatrist was asked by the Tribunal what the impact would be on the Applicant if she suddenly stopped taking her medication. The psychiatrist’s evidence is that there would be “discontinuation syndrome” that could result in headaches, agitation and impact the ability to make rational decisions.

46. The psychiatrist also gave evidence that the Applicant has positive help seeking behaviours.

GP report 21 November 2024 and updated GP report 3 February 2025

47. The Applicant also provided a GP report and an updated GP report.

48. The GP report stated that the Applicant has a history of depression and has been taking medication daily since 2020 and has not deviated from treatment. Of note is that the GP report states that:

“Since I have been treating Ms Beech I am not aware of her experiencing any thoughts, actions or behaviours with self-harm or suicide.”

49. However the same GP report states that:

“It was recommended that due to her distress and suicidal ideation at times that she should seek more counselling.”

The recommendation was erroneously attributed to the psychiatrist’s report.

50. The GP subsequently updated his report clarifying that he meant to refer to a recommendation in a report from the Navigator Group, not the psychiatrist’s report.

51. However the updated GP report continued to include the apparently contradictory statement that despite knowledge of the Navigator Group recommendation, the GP was not aware of the Applicant experiencing any thoughts, actions or behaviours with self-harm or suicide.

52. The Tribunal also has before it the GP medical notes. Of relevance is an entry made on Wednesday October 11 by the GP’s receptionist. The note states:

“workers insurance EML called to notify dr … that the pt has expressed feelings of suicide and self harm to the psychologist at eml, they said that pt will call tomorrow to organise an appointment with dr … but they also wanted to notify dr … to arrange a mhcp referral.”

53. The Tribunal understands the reference to “mhcp” to be a reference to a “mental health care plan.”

54. The next entry in the GP medical notes is on Monday October 23, 2023 from the GP stating “EML knocked back her claim”. Other information is redacted. On Thursday October 26, 2023, the GP created a letter “re GP Mental Health Treatment Plan.” This shows that the Applicant did consult the GP following the Navigator Group assessment as foreshadowed.

55. A further relevant GP medical note is made on 11 June 2024 indicating that the Applicant consulted the GP regarding her firearms licence. The notes record “No thoughts about dying or suicide” and the same entries are recorded on 1 November 2024, 21 November 2024 and 3 February 2025.

The Applicant’s evidence

56. The Applicant gave oral evidence at the hearing that she could not recall making the comments attributed to her in the second Navigator report at [42] above. The Applicant also gave evidence that she may have said words along the lines that “I want it to be over” referring to the Workers Compensation claim, and that the psychologist may have misunderstood the comment as suicidal ideation.

57. The Applicant also refers to the Medicines Legale report of 23 August 2023 authored by a psychiatrist. The Medicines Legale report was made prior to the second Navigator report of 12 October 2023.

58. The Applicant points to the Medicines Legale report to indicate that she has not had suicidal ideation. That report states that:

Ms Beech started seeing a psychiatrist in around 2020….Ms Beech denies any other issues. She has never been admitted to a mental health facility. She has never self-harmed or attempted suicide.

59. The Medicines Legale report also states that the Applicant does not meet the criteria for a major depressive disorder or generalised anxiety disorder, or an adjustment disorder:

Ms Beech’s symptoms are typical of the sort of symptoms a person may develop when they are going through stress related to their employment. I do not consider her symptoms to be at the threshold of being clinically significant (even though they are undoubtedly upsetting for her).

60. On 27 September 2023 the workers compensation insurer EML decided to refuse the Applicant’s workers compensation claim.

Findings and outcome

61. The Tribunal did not have the benefit of direct evidence from the psychologist who authored the second Navigator Group report. While the Applicant may not recall making any statement about suicidal ideation, and considers she may have been misunderstood, the Tribunal is persuaded that the Applicant did make a reference to suicidal ideation.

62. This is because the statement in the second Navigator Group report contains specific information, that the Applicant “denied any intent or plans” and “she would not do anything to hurt herself as this would significantly impact her husband and children.” This also aligns with the mitigating factors referred to by the Applicant’s treating psychiatrist that she is “future focused and her family are her strong protective factor”.

63. The GP medical notes at [52] also support this conclusion as the insurer EML was sufficiently concerned to inform the Applicant’s treating GP that she had “expressed feelings of suicide and self harm to the psychologist at eml.” The GP medical notes also indicate that the Applicant sought a mental health care plan from the GP as foreshadowed by EML during the call to the GP’s receptionist.

64. The mental health of an applicant is clearly a consideration in the context of firearms licences, however suicidal ideation does not necessarily pose a real and appreciable risk to safety. Even attempted suicide does not necessarily justify the revocation of a person’s firearms licence: AML v Commissioner of Police, NSW Police Force [2013] NSWADT 5 at [22].

65. However the Tribunal does not have the benefit of the Applicant’s treating practitioners’ considered expert opinions of whether the suicidal ideation is resolved or presents any real and appreciable risk to safety.

66. Rather, the Tribunal has conflicting evidence that, as in DEP, does not engage with or consider the relevant material which is before the Tribunal.

67. In Smith v Commissioner of Police, NSW Police Force [2024] NSWCATAD 233 at [26] the Tribunal said:

However, the letter from Dr Scott and the assessment report of Ms Williams, as adopted by Mr Jarvis, do not reference the Applicant’s self-harm attempt described at [19]. It was Mr Jarvis’s evidence that such an incident could have the potential to impact on any assessment of the Applicant. On that basis those reports can be given little weight because the Tribunal is unable to be certain the medial practitioners were fully informed as to the Applicant’s whole relevant history in providing their opinions: see Potts v Commissioner of Police, NSW Police Service [2010] NSWADT 311 at [44]-[51].

And at [31]:

As discussed at [26] above, the medical evidence before the Tribunal is such that the Tribunal cannot be satisfied the Applicant’s mental health issues have fully resolved such that he does not pose a risk to himself or the public.

68. The Tribunal notes that the cases of DEP and Smith concern conduct that is of a different nature to the conduct in this case. In the present case there is no suggestion that the Applicant would attempt to harm others. There is no evidence that the Applicant has had any plans or intent to self-harm.

69. Both the Applicant’s treating psychiatrist and GP consider the Applicant’s mental health to be well managed. However the fact remains that the treating practitioners have not directly addressed the comments of suicidal ideation raised in the second Navigator report. The Tribunal does not have clear evidence that the ideation has been treated and is managed.

70. The Tribunal gives little weight to the fact that there is no mention of suicidal ideation in the Medicines Legale report as it was made prior to the second Navigator report.

71. As the Tribunal is required to base its findings of fact on logically probative material, the Tribunal simply does not have evidence before it that assesses the risk to safety, if any, of the Applicant’s ideation.

72. In these circumstances, having regard to the overriding focus on public safety in the Firearms Act, the Tribunal considers that it must affirm the Respondent’s decision. The Applicant is free to decide whether to reapply to the Respondent for a firearms licence and provide evidence that addresses the issues raised by this decision.

Conclusion

73. For the reasons set out above the Tribunal finds that the correct and preferable decision is to affirm the Respondent’s decision.

74. Taking account of all the circumstances with an overriding focus on public safety, there is insufficient evidence to discount a real and appreciable risk to public safety if the licence is granted. This is because the Tribunal has evidence that the Applicant has experienced suicidal ideation but does not have an assessment of any current risk to safety, that takes into account the ideation.

Order

1. The decision under review is affirmed.

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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

Decision last updated: 25 July 2025