Bonkain v Commissioner of Police, New South Wales Police Force

[2024] NSWCATAD 221

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Bonkain v Commissioner of Police, New South Wales Police Force [2024] NSWCATAD 221

Hearing dates:

14 May 2024

Date of orders:

6 August 2024

Decision date:

06 August 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member

Decision:

The decision to revoke the Applicant’s Category AB Firearms Licence is set aside.

Catchwords:

ADMINISTRATIVE LAW - Firearms –– objects of legislation – public interest – public safety – objective evidence – mental health - all reasonable precautions

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Firearms Regulation 2017

Mental Health Act 2007

Cases Cited:

AML v Commissioner of Police, NSW Police Force [20123] NSWADT 5

Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11

Cole v Commissioner of Police NSW Police Force [2024] NSWCATAD 217

Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409

Livadaru v Commissioner of Police [2008] NSWADT 160

Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305

Rose v Commissioner of Police (No 2) [2022] NSWCATAD 26

Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28

Webb v Commissioner of Police, New South Wales Police [2004] NSWADT 110

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Aaron Valere Bonkain (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Counsel:
P Carasco (Applicant)

Solicitors:
Zampatti Lawyers (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2023/00175532

Publication restriction:

Nil

Reasons for decision

What these proceedings are about

1. These proceedings concern the Commissioner of Police’s decision to revoke the applicant’s Category AB Firearms licence on 22 February 2023 and the upholding of that decision by way of Internal Review determined on 4 May 2023.

Introduction

2. The applicant in these proceedings is Mr Aaron Bonkain (Mr Bonkain). The respondent is the Commissioner of Police NSW Police Force (the Commissioner). The Commissioner’s delegate in dealing with the existing licence formed the view that it was not in the public interest for Mr Bonkain to continue to hold a Category AB Firearms Licence.

Background

3. Mr Bonkain was first issued with a Category AB Firearms Licence on 17 May 2018. That licence was due to expire on 5 July 2023 however on 22 February 2023 the Commissioner’s delegate determined to revoke that licence.

4. The revocation arose in circumstances whereby Police had initially suspended Mr Bonkain’s licence on 27 September 2021 due to concerns in relation to his mental health. These concerns appear to have arisen in an industrial context whereby Mr Bonkain was a serving NSW Police Officer who was seeking medical discharge from NSW Police. As part of that discharge process a diagnosis of Post Traumatic Stress Disorder (PTSD) which was claimed to have arisen through workplace exposure to trauma. When these employment / legal records were provided to the Firearms Registry they made a decision to suspend Mr Bonkain’s Category AB Licence and to consider that suspension again subject to receiving a medical clearance.

5. A request was made for a medical assessment with a covering / referral letter from NSW Police in December 2022. When no medical information was forthcoming from Mr Bonkain, the Commissioner’s delegate determined to revoke his category AB Firearm’s licence on 22 February 2023.

6. Mr Bonkain then sought Internal Review of that revocation decision. In support of his Internal Review request Mr Bonkain provided two medical reports responding to the Commissioner’s concerns, and a submission provided by way of a letter from Mr Bonkain.

7. It appears that Mr Bonkain did take up the Police request to provide a medical clearance so that the suspension could be reconsidered. This observation is due to the first report from a Clinical Psychologist being completed two days prior to the revocation decision. However a further report from a Forensic Psychiatrist was completed on 14 March 2023 and was provided in support of the Internal Review request submitted that day (14 March 2023).

8. In conducting the Internal Review, the delegate set out the history of Mr Bonkain’s firearms licencing and made findings about certain administrative events. Specifically, that on 13 December 2022 the Registry sent a request for a mental health assessment to determine continued suitability to be authorised to use firearms. On 22 February 2023 the Firearms Licence was revoked due to a lack of response to that request. When the Internal Review was subsequently requested on 14 March 2023 medical material was supplied in support of that application / request.

9. The initial delegate relied on s 24 (2) (d) of the Firearms Act 1996 (NSW) and s 24 (2) (d) to revoke the licence. The section relevantly provides:

24 Revocation of licence(cf APMC 6, 1989 Act s 36, 1990 Reg cl 27)

(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.

….

(Emphasis added)

10. Clause 20 of the Firearms Regulation 2017 provides:

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.

11. The grounds or material relied upon go to the crux of these proceedings. The reason cited by the delegate being that on 27 September 2021 Mr Bonkain’s licence was suspended due to a workplace injury. On 13 December 2022 a letter was sent from the Firearms Registry requesting an assessment by completed by a Psychiatrist or Psychologist. The Commissioner was aware of Mr Bonkain’s workplace injury due to the fact that he was employed as a NSW Police Officer at the time of the injury as noted at [4] above.

12. Returning to the Internal Review, the delegate considered the medical evidence supplied by Mr Bonkain in the following manner. An assessment conducted by Ms da Cruz Clinical Psychologist outlined weekly treatment for PTSD and a finding that Mr Bonkain’s presentation was stable after 16 months of treatment. In addition, Dr Bench Psychiatrist provided a report which expressed an opinion that the PTSD condition would not prevent Mr Bonkain safely possessing and using firearms. However, the delegate determined that as Mr Bonkain remained actively engaged in treatment options to manage PTSD, then they were not ‘fully satisfied at this time, that there would be virtually no risk to public safety, including your own if you were to continue to be authorised for firearms’.

13. The delegate applied those grounds to the provisions of Clause 20 and made a finding that it was not in the public interest for Mr Bonkain to hold a firearms licence.

14. On 1 June 2023 Mr Bonkain lodged his administrative review application with the Tribunal. The Internal Review decision of 4 May 2023 being the matter currently before the Tribunal.

Jurisdiction

15. The Commissioner had revoked Mr Bonkain’s Firearms Licence application on the basis of cl 20 of the Regulation, which is set out at [10] above.

16. Section 75 of the Firearms Act provides that a person aggrieved by any of the seven listed actions of the Commissioner can apply to the Tribunal for administrative review of that decision. The third matter listed at s 75 concerns the revocation of a licence. Relevantly the section provides:

Part 8 Applications to Civil and Administrative Tribunal

75 Administrative reviews by Civil and Administrative Tribunal of certain decisions

(1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions—

(a) the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person,

(b) a condition imposed by the Commissioner on a licence or permit issued to the person,

(c) the revocation of a licence or permit issued to the person (other than a revocation on the basis that the holder of the licence or permit is subject to a firearms prohibition order or an apprehended violence order),

(d)..

(e)…

(f)…

(g)…

(Emphasis added)

17. The Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides:

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

18. The Tribunal has jurisdiction under the Firearms Act as noted at [16] above.

19. As noted from the section above, an application under s 75 of the Firearms Act is an administrative review. The Tribunal’s function on review under section 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

Administrative Review by the Tribunal

20. The parties agree that Mr Bonkain filed his application for Administrative Review on 1 June 2023 being the 28^th day after receipt of notice of the Internal Review Decision. The application to the Tribunal was clearly within the 28 day period provided to lodge an application for Administrative review. Therefore, the Tribunal has jurisdiction to hear the matter having regard to s 75 of the Firearms Act 1996.

Applicant’s written evidence

• Exhibit ‘A-1’. Affidavit of Aaron Bonkain affirmed 6 October 2023.

• Exhibit ‘A-2’: Affidavit of Aaron Bonkain affirmed 1 February 2024.

• The applicant also filed and served detailed written submissions and submissions in reply.

Respondent’s written evidence

• Exhibit ‘R-1’ Documents filed under s 58 ADR Act (52 pages) filed 5 September 2023.

• Exhibit ‘R-2’ Information obtained under summons relating to medical evidence concerning the applicant (239 pages) filed 28 February 2024.

• The Commissioner also filed detailed written submissions.

21. Mr Bonkain was represented by Solicitors and Counsel. The Commissioner was legally represented. Both sides also made oral submissions at hearing at the conclusion of the evidence.

22. Mr Bonkain was subject to cross-examination at hearing, as were his expert witnesses Ms da Cruz Clinical Psychologist and Dr Bench Psychiatrist.

Mr Bonkain’s evidence at hearing

23. In evidence in chief Mr Bonkain corrected a matter in [18] of his affidavit (Exhibit ‘A-1’) by changing the date year from ‘2022’ to ‘2021’. The affidavit and Exhibit ‘A-2’ were subsequently read.

24. In cross-examination Mr Bonkain was asked about his medical records summonsed by the Commissioner and received as Exhibit ‘R-2’. At page 121 of the records reference is made that in February 2022 Mr Bonkain was experiencing:

marked distress, feeling overwhelmed (and) hopeless, .. worrying, … fatigue, … excessive anger and sleep disturbances … significant impairment in social and interpersonal relationships, … avoidance of leaving the house.

Mr Bonkain confirmed that he was at a ‘low level’ at this time. He said that Ms Da Cruz was taking him back to his NSW Police trauma in her therapy.

25. Mr Bonkain confirmed that at the time he was seeing Ms da Cruz weekly but he was now seeing her less often for treatment. He said that he last had a treatment session with her approximately two months prior. In respect of his circumstances in May 2022 when Police attended his home, Mr Bonkain said that they attended without prior notice. Sgt Murdoch was in attendance and when Mr Bonkain asked what he was doing there he said that he wanted to give him something (being described as a document). Mr Bonkain said that the officer could have emailed it to him. The document was left on Mr Bonkain’s veranda.

26. In respect of the reference to the recording of the phrase ‘I don’t want to live like this’, Mr Bonkain said that it was a reference to what he said to Ms da Cruz on the telephone on 18 May 2022. Mr Bonkain said that this referred to the concern that he held about appearing or presenting as upset in front of his children. Mr Bonkain clarified for the Tribunal that his children were aged 1, 4 and 6 years at the time. He described his ‘upset behaviour’ as crying, shaking and being generally upset.

Ms da Cruz’s evidence at hearing.

27. In evidence in chief the witness adopted her report of 20 February 2023.

28. Under cross examination the witness said that Mr Bonkain had been referred to her by a different Psychologist who did not specialise in treatment. He was also referred in a workers compensation context. She said that the first appointment was on 11 October 2021 and was tele-health due to Covid restrictions. Ongoing treatment included intensive EMDR (Eye Movement and Desensitisation Restriction). This treatment was face to face and intensive and was considered the ‘Gold Standard’ intervention technique for trauma.

29. The witness said that her clinical assessment of Mr Bonkain was against criteria in the DSM V with a diagnosis of Post Traumatic Stress Disorder (PTSD). The witness was asked about records at page 107 of ‘R-2’ concerning the Allied Health Assessment Treatment Plan’. The witness said that this entry was not a report as such but rather a requirement of the workers compensation process for Workcover funded treatments. The DASS (Depression Anxiety Stress Scale) was explained by the witness as a screening tool. The scores help the clinician track a patient’s progress and whether they require further treatment.

30. The witness was asked about the DASS scoring for Mr Bonkain and whether he scored in the severe range for depression and anxiety. The witness said that she was assessing Mr Bonkain for fitness for return to work and he had been referred to Workcover for that purpose.

31. The witness said that Mr Bonkain’s symptomology had resulted in a severe impact across a large range of social domains. She said that impacts from PTSD were not necessarily negative impacts. At page 105 from ‘R-2’ the witness said that the updates recorded there were made from contemporaneous notes made by her as clinician.

32. The witness confirmed that Mr Bonkain remained seeing her from treatment at present with monthly sessions. Mr Bonkain was referred to as ‘still being in treatment’ and that treatment may be stopped at anytime by EML (the workers compensation insurer). The witness said that the symptoms outlined in her report are orthodox PTSD symptoms, and reiterated that the purpose of the treatment was for fitness to return to work.

33. The witness when asked what did the patient and the referral say about the need for treatment told the Tribunal that Mr Bonkain said that he was not coping with and had been unable to manage his situation within the NSW Police and had become negative. The witness said that Mr Bonkain had indicated that he was ‘suicidal for a brief period of time’ which she clarified as 30 minutes. The witness said that Mr Bonkain had said that he ‘can’t do this anymore’ and that she took that to mean that he couldn’t deal with the stress of Police turning up at his home.

34. The Tribunal was advised by the witness that Dr Bench had commenced treatment in September 2022. The witness said that when assessing suicide risk the clinician looks at the current factors impacting on the person. The witness said that for Mr Bonkain this was more of an elevation to suicidal ideation that resolved quickly. The witness advised that his presentation and symptoms were more in the areas of intrusive thoughts than suicidal ideation. The witness said that she referred Mr Bonkain to Dr Bench because of the NSW Police requirements for any PTSD return to work, in that a report from a Psychiatrist was a requirement of the employer.

35. When considering treatment for the May 2022 attendance by Police, the witness said that the attendance by Police was totally unnecessary. Mr Bonkain at that time was in a fragile state and Police attendance had a detrimental impact on him bearing in mind his underlying work trauma claim. The senior officer had merely served a Covid vaccination letter on him, and this letter was in the witness’s view unnecessary as Mr Bonkain was not returning to NSW Police employment.

36. The witness told the Tribunal that suicidal ideation does not mean that a person is going to harm themselves. The witness said that the matter only relates to thoughts and noted that for Mr Bonkain there was no plan which would have indicated active suicidal ideation. The witness described Mr Bonkain‘s situation as passive suicidal ideation. The witness said that the request for treatment was written on 20 May 2022 two days after the 18 May 2022 Police attendance incident.

37. In re-examination the witness was asked about Mr Bonkain presenting with stress and anxiety, and specifically whether he had he ever shown indicators of violence. The witness said that Mr Bonkain had never shown violence and that there were no issues around safety of children. The witness had noted a productive and positive change in Mr Bonkain.

Dr Bench’s evidence

38. In evidence in chief Dr Bench adopted his report of 14 March 2023. In cross examination Dr Bench was asked when he first saw Mr Bonkain as a patient. He said that was in September 2022. He said that he was still seeing him every six to eight weeks on average. There was a 10 week break over Christmas / New Year.

39. Dr Bench was taken to page 57 of ‘R-2’ where his letter to the GP Dr Schultz is reproduced. At the end of the letter on page 62 of ‘R-2’ there is a conclusion referring to an absence of suicidal ideation. Dr Bench confirmed that Mr Bonkain did not present on assessment with suicidal ideation. His conclusion in the Schultz letter that Mr Bonkain is (at that time) unfit for any employment was confirmed. He said that he last saw Mr Bonkain as a patient on 27 March 2024.

40. Dr Bench was questioned about page 72 of ’R-2’ (a letter to the GP of 23 January 2023) and other letters from November 2022 where mood and behaviour is discussed. References to thoughts about harm to family relate to managing the children, shouting, being short tempered not actual physical harm.

41. In respect of medications Dr Bench was questioned about the SSRI’s (Selective Serotonin Reuptake Inhibitors) which are anti-depressants. He said that any failure to take such medications was not seen as a refusal to be treated at any stretch. Dr Bench agreed that any incident of Mr Bonkain harming himself would be of concern but there was no evidence of such an incident occurring. Dr Bench said that Mr Bonkain was very distressed by what had happened to him with and about his employment. He said that Mr Bonkain was very distressed about a statement that had been made and that he was also offended at the misrepresentation of a statement that he had made regarding being unable to continue ‘living like this’. Dr Bench said that if so the words ‘I don’t want’ at their highest illustrated passive suicidal ideation.

42. There was some discussion during cross examination of Dr Bench about the import of the phrase ‘unfit for employment’. Reference was made to lethargy, intrusive thoughts and trouble making connections and maintaining concentration. Matters were raised by the Commissioner concerning the need for an authorised firearms user to be able to interact with Police if given back a licence. Reference was made to the need to interact during safe storage inspections.

43. Dr Bench said that since 2022 Mr Bonkain had only been improving not declining in his mental health and resilience. He said that Police combat PTSD is like combat PTSD. In respect of how Mr Bonkain might react in any safe storage incident here was a lack of any history or track record of problems.

44. Dr Bench said that Mr Bonkain‘s next appointment was on 27 May 2024.

45. In re-examination Dr Bench was asked about what might trigger issues with dealing with Police in any instance such as a safe storage inspection. When asked for any concrete examples Dr Bench said that there were none. Dr Bench noted that Mr Bonkain had expressed that he was not happy with his behaviour as a result of his diagnosis.

46. Dr Bench said that most medically discharged Police officers have difficulty returning to work and Mr Bonkain is no exception noting his assessment of his suitability for employment at various times.

Applicant’s submissions

47. In oral submission at the conclusion of the evidence Counsel for Mr Bonkain submitted that the Tribunal should adopt a balanced view of risk and referred to Webb v Commissioner of Police, New South Wales Police [2004] NSWADT 110 referring to the absence of any evidence of risk. Counsel submitted that Mr Bonkain does not escalate matters but rather seeks at all times to deescalate.

48. It was submitted that there is no evidence that the PTSD diagnosis manifests in any risk in Mr Bonkain. Reference was also made to the case of AML v Commissioner of Police, NSW Police Force [20123] NSWADT 5 (AML) where the former Administrative Decisions Tribunal (ADT) was considering the same issue but with a background of an actual suicide attempt. Like Mr Bonkain the applicant in AML was under the care of a psychologist and psychiatrist.

49. In written submissions Counsel submitted that Mr Bonkain had no criminal history or convictions. There was no history of domestic violence, he had never been admitted to Hospital for mental health conditions, and never expressed suicidal ideation. Further he has always participated in and complied with medical treatment / assessments and there was no disciplinary history of violence in his employment as a Police officer including any complaint of using excessive force.

50. Submissions referred to a lack of any evidence of incidents of concern demonstrating an inability to exercise rational judgement. Especially in the context of safe and continuous control over firearms which he had done in his career and privately until the suspension of his licence. This evidence coupled with the expert evidence of Dr Bench was submitted as objective evidence sufficient for the Tribunal to set aside the decision. Mr Bonkain’s Counsel noted that all of this material was before the Firearms Registry prior to the administrative review.

51. Dr Bench’s evidence was submitted as evidence which provided a ‘reasonable degree of medical certainty’ that the PTSD diagnosis would not effect the ability of Mr Bonkain’s fitness to possess firearms. Reference was also made to Dr Bench’s observation that PTSD waxes and wanes and a relapse was possible in the future. However, it was submitted that the expert also noted that on the available evidence such a relapse will not elevate any risk because it would ‘not cause any lack of capacity to maintain rational judgment’.

52. Reference was made in submissions to the case of Ward v Commissioner of Police [2000] NSWADT 28 where at [27-28] Deputy President Hennessy said that in terms of public safety:

27 ...The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.

28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.”

53. In respect of the virtually no risk reference in Ward Mr Bonkain submitted that in assessing risk the Tribunal should assess his personal conduct. Although he meets the criteria for PTSD his symptoms even when the PTSD was triggered never presented or manifested in a way in which he placed himself or others at risk.

54. It was also submitted that by ceasing to work as a Police Officer Mr Bonkain had made an appropriate decision which limited risk including risk of any relapse of the heightened symptoms of his PTSD. However with that decision and in his past and present he has never demonstrated symptoms which were so severe that he was no longer fit and proper to hold a firearms licence and was not at any time a risk to public safety.

55. It closing, it was also submitted that the PTSD symptoms had significantly reduced further since selling the property / residence at Cootamundra, the town where he was previously stationed as a Police Officer in the NSW Police Force.

Respondent’s submissions

56. In oral submissions at the close of evidence the respondent submitted that they rely on sections 24 (2) (a) and 11 (4) (b) of the Firearms Act 1996.

24 Revocation of licence(cf APMC 6, 1989 Act s 36, 1990 Reg cl 27)

(1)

(1A)—

(a)

(b)

(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, ..

11 General restrictions on issue of licences

(1) The Commissioner may issue a licence in respect of an application, or refuse any such application.

(2) A licence must not be issued until after the end of the period of 28 days following the day on which the application is made.

(2A) Subsection (2) does not apply if the application is for the renewal of a licence (including the renewal of a category A or B licence that involves the addition of either of those licence categories to the previous licence).

(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.

(Emphasis added)

57. The Commissioner submitted that there is a significant concern because Mr Bonkain is currently unfit to hold any form of employment at present. The Commissioner submitted that firearms regulation and use comprises a significant regime which requires strict adherence.

58. The Commissioner submitted that whilst two expert reports support Mr Bonkain’s ability to safely use firearms one expert also says that Mr Bonkain is at present unfit for and incapable of holding down any form of employment.

59. In written submissions the Commissioner referred to the legal framework of the Firearms Act and took the Tribunal through the fit and proper and genuine reason requirements, the latter not being pressed. It was submitted that being fit and proper extended to the objects of the Legislation and whether a person by their conduct could uphold those objects as standards.

60. In respect of public interest the Commissioner submitted that public safety including Mr Bonkain’s own safety is the primary focus of the public interest issue and of the Act generally. Many of the submissions on public interest and risk of safety to the public focused on the Commissioner’s clear position that they believed that Mr Bonkain was a suicide risk. This was confirmed with the reliance on s 11 (4) (b) of the Act as referred to at [56] above, at the close of the hearing.

61. There were also submissions concerning purported deficiencies in the medical expert reports. References to the authors not being fully across certain facts in respect of the application of such matters to firearms criteria were raised in written submissions, however these submissions were prepared prior to each author being cross examined. Overall a Makita v Sprowles (Makita Australia Pty Limited v Sprowles [2001] NSWCA 305) submission was made that these reports do no substantiate the conclusions reached. The submission inferred that the experts were ill equipped to deal with assessments in the complex context of the firearms licencing regime.

62. It was also submitted that the seven character references provided for Mr Bonkain should carry little weight as the authors were significantly unaware of the extent of the ‘mental health condition’ of Mr Bonkain. Reference was also made at the conclusion of the written submissions to a lack of clinical evidence to verify the claims made by Mr Bonkain and his two experts.

Consideration

63. The decision under review is based upon the notion that Mr Bonkain having access to firearms would be contrary to the public interest.

64. I note that at the closing of the hearing the Commissioner maintained that Mr Bonkain was a suicide risk. In my view having regard to the evidence of Mr Bonkain and his two experts, irrespective of the provisions of a firearms licencing regime there is no evidence of any probative value remaining to uphold such a proposition. I therefore disagree that Mr Bonkain remains a suicide risk and find that section 11 (4) (b) of the Firearms Act is not a basis or grounds to not issue a licence.

65. In making that finding I am cognisant of the underlying principles of the Firearms Act and its objectives. I note that Deputy President Hennessy observed in the case of Livadaru v Commissioner of Police [2008] NSWADT 160 that in reference to the public interest at [54]:

In considering the public interest, regard must be had to the underlying principle of the Act. ….

66. I note that the underlying principle of the Act concerns public safety.

67. In respect of the public interest I note that such matters include public protection, public safety and public confidence in the administration of a licensing system. The Firearms Act 1996 identifies a purpose to deal with public safety at s-3 (1) (a) of the Act.

68. Section 3 of the Firearms Act 1996 provides:

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

69. The central matter to determine is what impact of any Mr Bonkain’s mental health diagnosis of PTSD has on his fitness to hold a firearms licence and as such whether the issue of the licence would be in the public interest. The Tribunal in the recent decision of Cole v Commissioner of Police NSW Police Force [2024] NSWCATAD 217 (Cole) addressed the matter of a mental illness diagnosis and whether such a diagnosis will always be determinative of whether a person should be issued with a licence. At [38] of Cole Principal Member Ransome observed:

38. Irrespective of whether Mr Cole has been diagnosed at some point in his life with a mental illness, the diagnosis itself is not determinative of whether it is in the public interest for Mr Cole to hold a firearms licence or whether he is fit and proper to hold such a licence. There is no evidence that Mr Cole has any behaviours, beliefs, ideations or other symptoms arising out of a mental health condition which indicate there is a risk he would not handle firearms responsibly. On the contrary, he has an unblemished firearms history and has not come to the attention of the authorities in the past 36 years for any reason.

…

43. The Commissioner submits that there is reasonable cause to believe that Mr Cole may not personally exercise continuous and responsible control over firearms because there is insufficient evidence available to find that he would. On the contrary, Mr Cole has demonstrated throughout the time he in fact has held a firearms licence that he can and does exercise such control.

44. Overall, I do not consider that Mr Cole’s physical and mental health are such that I could be satisfied there is a risk to public safety. As was stated in Webb v Commissioner of Police, New South Wales Police [2004] NSWADT 110 at [32], in determining whether there is a risk to the safety of the public if Mr Cole is granted a new licence only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration. In my view the concerns raised by the Commissioner are theoretical at best.

70. As has previously been observed, the Appeal Panel of the ADT in the case of Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16 discussed how the Tribunal should approach matters of public interest in licensing regime reviews.

28. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 [at 33] the 'public interest' is:

. . .

33. The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system. In this case the public interest case was a very strong one. The public would, we believe, be quite concerned that a man with a serious history of violence, including violence using weapons, for which he served several years' imprisonment might now be entrusted with a pistol.

71. In the case of Rose v Commissioner of Police (No 2) [2022] NSWCATAD 26 the Tribunal observed that the ‘burden’ that an applicant is required to overcome on this issue is not taken to be insurmountable. At [56] when referring to the case of Martin, the Tribunal observed:

1. It is not the case, as indicated in Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] to [66], that an Applicant is required to discharge an almost impossible burden of proving a near-absolute negative.

2. Rather, as stated in Webb at [32] when considering the question of public safety:

"In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration".

72. I note the reference by both parties in submission to the case of AML. In my view AML is on point not just in respect of the matters submitted by Mr Bonkain’s counsel at [48] above, but also for the observation that in AML the Commissioner of Police misunderstood or misconstrued the test. Deputy President Hennessy in AML refers to their earlier decision in Ward concerning the ‘virtually no risk’ comment. At [7] to [10] of AML the following is observed:

7. The Commissioner submitted that there must be "virtually no risk" before the Tribunal could be satisfied that AML should retain his firearms licence. That phrase comes from a decision I made in 2000 - Ward v Commissioner of Police [2000] NSWADT 28. I set aside the Commissioner's decision to revoke Mr Ward's firearms licence because I was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence:

28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.

8. 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.

9. In the internal review decision, the Commissioner referred to a comment the Tribunal made in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218. In that case the Tribunal affirmed the Commissioner's decision to revoke Mr Hill's firearms licence in circumstances where his 15 year old son had accidentally shot his friend in the leg while they were hunting for wild pigs. The Commissioner justified the revocation on the ground of public interest. The Tribunal said at [28]:

28. It is of course impossible to say with absolute certainty how any individual will behave in the future. The Commissioner is properly concerned that Mr Hill's serious lack of judgment and failure to properly supervise his firearms may be repeated. As I understand Mr Tunks to argue, notwithstanding the applicant's good character given the seriousness of the incident the public interest dictates that a decision maker err on the side of caution and, in effect, guarantee, by the revocation of the licence, that a similar incident will not be repeated.

10. In the final sentence, the Tribunal was reciting Mr Tunks' submission, with approval. The Tribunal was not re-writing the public interest test. Words such as "dictates" and "guarantee" suggest that revocation is mandatory in such cases. That is not correct. When applying the fit and proper person test, the public interest test and the reasonable cause test, the decision maker is exercising a judgement based on all the evidence.

73. The crucial issue in these proceedings concerns how Mr Bonkain would be expected to behave (citing the words of Hill in the paragraph above) when using and having possession and control of firearms with his PTSD diagnosis. As noted in AML when determining these matters the Tribunal is exercising a judgement based on all of the evidence. Unlike AML and Hill however there have been no adverse incidents concerning Mr Bonkain relating to matters that might impact on his ability to exercise safe and responsible continuous control over firearms. His PTSD diagnosis whilst relevant to consider, does not in my view raise any red flags on the available evidence.

74. Numerous persons with a mental health diagnosis from the DSM V hold firearms licences and like some of the cases outlined above continue to hold those licences after administrative review. That is not to observe that such a diagnosis should be brushed aside, but rather that the adjudicator needs to consider it in the context of all of the available evidence. In the 21^st Century the term mental illness and mental health is much broader than what it was considered to mean only a generation or two earlier.

75. Having a mental health diagnosis does not mean that a person meets the criteria of having a mental illness as set out in the definitions at s-4 of the Mental Health Act 2007 or that they are a mentally disordered person as set out at s 16 of that Act.

76. Whilst not the main basis for the decision for review before the Tribunal, I observe that the notion of ‘fit and proper’ is often referred to in the lead case of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and the various ADT and Tribunal cases that have relied on Bond. The case of Bond provides the general principle that fitness and propriety are not to be narrowly construed or confined and can extend to any aspect of fitness and propriety that is relevant to the public interest.

77. This position is consistent with the approach that the cases outlined above have set out concerning applying the concepts in a broad manner to the available evidence and having regard to the objects and purpose of the regime. In this instance the regime is designed to protect the public as a primary consideration and for this reason under the Firearm Act access to and use of firearms is not a right but a privilege. Mr Bonkain appeared cognisant of this matter in his sworn affidavit evidence which was not undermined under cross examination.

78. As I have also noted Senior Member Ransome (as she then was) observed in Artridge at [21] – [27] the public interest question is the main task facing the Tribunal in this type of review.

The public interest

21. What is meant by the term “the public interest” has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court stated at 681:

“The purpose of the reference to 'public interest' is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation.”

22. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] the Appeal Panel said that:

“The ‘public interest’ allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.”

23. In Cusumano v Commissioner of Police [2001] NSWADT 50 at [23] Deputy President Hennessy stated:

“There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.”

24. Importantly, s 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community’s interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at [27-28] Deputy President Hennessy said that in terms of public safety:

27 ...The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.

28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.”

25. That case dealt with whether the applicant was a “fit and proper person” to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at [130] – [134].

26. The question of risk is not, however, to be approached in an absolute or mechanistic way, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [64] – [66]; Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315 at [62]- [64]. The question is whether there is in all the circumstances a real and appreciable risk to the public: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 at [74]; Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124 at [58].

27. It has also been stated that the public interest requires that all licensees be aware of, and comply with, the legislative requirements: Cook v Commissioner of Police [2003] NSWADT 30 at [34]. Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police [2005] NSWADT 75 at [25].

79. The legislation and precedents indicate that the discretion is to be applied consistent with the purpose of the Firearms Act, one of which is to ensure public safety in accordance with s 3 (1) (a) of that Act. Clearly however the purpose of the licencing regime is protective not punitive and all endeavours are directed towards maintaining and enhancing public safety.

80. In balancing those risk matters as referred to in Rose with the objects and the overall protective purpose of public safety from s 3 of the Firearms Act I am satisfied that on the evidence and material before the Tribunal, it would be in the public interest to set aside the revocation of the licence so that there would be no impediment to a fresh licence application. I note that the licence subject of the revocation and this review has now expired. I will address this issue at the end of the reasons.

81. I note that Mr Bonkain has no criminal record or history. He has a traffic record which is unremarkable with three minor matters in almost 20 years.

82. He has maintained a genuine reason for holding a licence and now raises economic issues due to the change in circumstances with his career. The Commissioner did not dispute any genuine reason grounds as noted above.

83. The fact that his Psychiatrist advised that he was unfit for employment earlier this year does not in my view establish that he is not fit to hold a firearm’s licence or that it would be contrary to the public interest to issue the licence. As noted in AML the test is on the basis of the totality of all of the evidence. His expert evidence was that notwithstanding the finding in respect of fitness for employment, there was nothing present that would adversely impact on Mr Bonkain’s ability to hold a licence. Ms da Cruz without making any employment fitness finding reached a similar conclusion as Dr Bench on Mr Bonkain’s ability to maintain continuous and responsible control over firearms.

84. I accept the conclusions of the expert’s and note that both received the referral letter from the Firearms Registry which puts the licencing regime in a context for the clinician’s to evaluate the patient. In that regard I am satisfied that their reports should be viewed in that complete context.

85. In my view the totality of the evidence establishes that the major concerns of the Commissioner and the necessary basis for revoking the licence have fallen away on assessment of the available evidence during the administrative review.

86. The appropriate approach would be that the Tribunal sets aside the decision.

Conclusion

87. Because of the findings that I have made, it is appropriate to set aside the decision of the Commissioner.

88. As this is an administrative review matter, it therefore follows that the correct and preferable decision is to set aside the decision of the respondent.

89. However, as noted above at [80], because the licence has now lapsed, Tribunal cannot reinstate the licence, but had the licence still been valid then on setting aside the revocation the subsequent order of the Tribunal would have been to direct that the licence be reinstated.

90. I therefore make the following order:

Orders

The decision to revoke the Applicant’s Category AB Firearms Licence is set aside.

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

Amendments

06 August 2024 - Paragraph [83] 'funding' amended to 'finding'.

Decision last updated: 06 August 2024