Foerster v Commissioner of Police, NSW Police Force

[2025] NSWCATAD 250

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Foerster v Commissioner of Police, NSW Police Force [2025] NSWCATAD 250

Hearing dates:

29 August 2025

Date of orders:

02 October 2025

Decision date:

02 October 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

R Block, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

Firearms Act - firearms licence – special conditions - contrary to the public interest – safe storage requirements

Legislation Cited:

Administrative Decisions Tribunal Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Cases Cited:

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

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Cusumano v Commissioner of Police [2001] NSWADT 50

McDonald v Guardianship Administration Board [1993] 1 VR 521

Rosenboom v Commissioner of Police [2006] NSWADT 10

Ward v Commissioner of Police [2000] NSWADT 28

YG and GG v Minister for Community Services [2002] NSWCA 247

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Mark Francis Foerster (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Self-represented (Applicant)
Holding Redlich (Respondent)

File Number(s):

2025/00171890

Publication restriction:

Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 the material filed by the Respondent on a confidential basis, the evidence given in private before the Tribunal and the record of that part of the proceedings conducted in private pursuant to s 49 is not to be released to either the Applicant or to the public.

REASONS FOR DECISION

1. Mr Mark Francis Foerster (the Applicant) has applied to the Tribunal for a review of a decision under the Firearms Act 1996 (the Act) by a delegate of the Commissioner of Police, NSW Police Force (the Respondent). The Respondent determined that a special condition on the Applicant’s Firearms Licence (the Licence) was to remain in place, despite the change in circumstances which resulted in its imposition.

2. This is an application for administrative review of a decision of the Respondent pursuant to s 75(1)(b) of the Act.

Legislative Framework

3. The Tribunal has jurisdiction to review a decision pursuant to s 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) and sections 7 and 9 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act).

4. There has been a decision by the Commissioner of Police pursuant to s 5 of the CAT Act and s 6 of the ADR Act.

5. The Applicant is an interested person pursuant to s 55 of the ADR Act, and the type of decision is listed in s 75(1)(b) of the Act.

6. The Applicant had applied for an internal review of the decision pursuant to s 53 of the ADR Act, and that review was finalised on 15 April 2025. This application was lodged with the Tribunal on 5 May 2025, within 28 days following the finalisation of such decision.

7. Section 19(1) of the Act provides that “a licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose”.

8. The underlying principles of the Act are to confirm that firearm possession and use are a privilege that is conditional on the overriding need to ensure public safety; to ensure that the firearms licensing scheme improves public safety by imposing strict controls on the possession and use of firearms; and to ensure the safe and responsible storage of firearms (s 3(1)(b) of the Act).

9. Pursuant to s 39(1) of the Act, a person who possesses a firearm must take all reasonable precautions to ensure (a) its’ safe keeping, and (b) that it is not stolen or lost; and (c) that it does not come into the possession of a person who is not authorised to possess the firearm.

10. Section 41(1) of the Act requires that such firearm, when not in use, be stored in a locked steel safe of a type approved by the Commissioner which cannot be easily penetrated, and be bolted to the structure of the premises where it is authorised to be kept. Any ammunition must be stored in a locked container of a type approved by the Commissioner, which is kept separate from the safe containing the firearm(s).

11. In reviewing the decision, the Tribunal ‘stands in the shoes’ of the Respondent and is required to make the ‘correct and preferable decision’ having regard to any relevant factual material and any applicable written or unwritten law. The Tribunal may set aside, vary or affirm a decision before it as per s 63 of the ADR Act.

12. The review is to be conducted ‘without any presumption as to the correctness of the decision’: McDonald v Guardianship Administration Board [1993] 1 VR 521 at [530]. On review the Tribunal may exercise all of the functions vested in the Respondent.

13. The Tribunal must consider the material that is available before it, which may include material that postdates the reviewable decision as per YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].

Material before the Tribunal

14. The material before the Tribunal included submissions and correspondence by both parties.

15. The Applicant submitted a bundle of documents which included submissions, supporting statements and copies of communications from the Respondents.

16. The Respondent submitted a bundle of documents which included their submissions, ERISP transcripts, brief of documents and correspondence with the Applicant.

17. Both parties made oral submissions at the hearing.

18. The issue for the Tribunal to determine is whether or not the special condition on the Applicant’s Licence should be lifted.

Evidence before the Tribunal

19. The Respondent relied on:

1. the documents lodged pursuant to s 58 of the ADR Act;

2. a bundle of documents lodged with the Tribunal on a confidential basis; and

3. open and confidential submissions.

20. The Applicant relied upon a bundle of evidence and submissions filed on 3 July 2025.

21. The Applicant gave evidence at the hearing and both he and the Respondent made further oral submissions at the hearing.

22. Pursuant to s 49 of the CAT Act, a hearing was conducted in the absence of the Applicant and the public, in relation to the Respondent’s application seeking orders for non-publication and non-disclosure of certain material provided in confidence to the Tribunal by the Respondent (the Confidential Bundle). Orders to this effect were made by the Tribunal on 30 July 2025.

23. A further bundle of material was provided to the Tribunal in confidence on 22 August 2025. A further confidential hearing was conducted at the close of the proceedings in the absence of the Applicant and the public, and the Tribunal determined that it was in the interests of confidentiality and safety that these additional materials be included with the Confidential Bundle and not be disclosed or released to the Applicant nor to any member of the public. Orders were made to this effect on 28 August 2025. 

Background

24. The Applicant holds a category AB firearms licence (the Licence) for the purpose of recreational hunting/vermin control on rural land.

25. On 13 January 2025, a decision was made to impose the following condition on the Applicant’s Licence: “The licence holder is prohibited from possessing or storing firearms, firearm parts and ammunition at his residence or any location where Nicholas Michael Foerster DOB: 27/10/1981 resides or frequents.” (the Decision)

26. This condition was placed on the Applicant’s Licence because a charge had been laid against the Applicant’s son (referred to hereafter as NMF) on 11 January 2025 in respect of an alleged domestic violence offence and Apprehended Violence Order (AVO) in connection with NMF’s ex-partner.

27. NMF resided with the Applicant for the period 5 February-19 March 2025 as a condition of his bail, and the Applicant had advised the Respondent that NMF had a key to the Applicant’s residence and knew the location of the Applicant’s firearm safe.

28. The Applicant sought an internal review of the Decision on 7 April 2025 on the basis that NMF had since moved into alternative accommodation and could no longer access the Applicant’s residence.

29. At the time of the Respondent’s internal review of their Decision, NMF remained on bail, with the outcome of his charge not yet determined. The Respondent determined that whilst the Applicant had an unblemished criminal record and genuine (although notably recreational) reasons for holding the Licence, NMF presented a real and substantial risk to public safety through the existence of a firearm at a location he frequents and is aware houses a firearm. Accordingly, the Respondent determined that the condition should remain.

30. On 5 May 2025, the Applicant lodged an application with the Tribunal for administrative review of the Respondent’s Decision to refuse to lift the condition regarding the storage location of his firearm.

31. NMF was found not guilty in proceedings dated 1 May 2025, and the Tribunal invited the Respondent to reconsider the Decision in view of this information, which they declined.

Applicant’s case

32. The Applicant submits the correct and preferable decision is to remove the condition on his Licence. His grounds for this review include the following:

1. That NMF only lived with him temporarily, and has lived elsewhere since 28 February 2025.

2. That NMF was found not guilty of the charge on 1 May 2025, at which time the AVO was lifted and that he has no criminal record, and therefore cannot be considered a risk to public safety.

3. That his gun safe was inspected by Wollongong Licence Police on 6 February 2025 and deemed as meeting safe installation requirements.

4. That NMF has no access or security fob to the Applicant’s residence, and no longer visits the Applicant and/or his wife at their residence.

5. That the safe key is hidden and the firing pin is stored in a secret location outside his residence therefore rendering the firearm non-operational.

6. His personal firm belief that NMF has never been a risk to the Applicant’s or his wife’s personal safety nor that of the wider community.

7. That the reasons for the imposition of the condition were understandable at the time the Decision was made, but those reasons are no longer relevant or applicable.

8. That NMF’s counsellor and employer both support this position.

33. At the hearing, the Applicant submitted that NMF could not access his residence, or his safe under any circumstances, and that the firing pin being stored off premises offset any risk completely.

34. The Applicant acknowledged that NMF was of intimidating size and appearance, but had never been violent or threatening to the Applicant or his wife.

35. The Applicant further acknowledged that NMF has a substantial history of mental health issues and diagnosis, and that when he is off his medical regime, and engaging in excessive alcohol consumption, his behaviour and condition deteriorate.

36. The Applicant submitted that he and his wife are no longer willing to allow NMF access to their residence under any circumstances, not even for a social purpose or in a crisis.

Respondent’s case

37. The Respondents submitted that they have made the correct and preferable decision in the circumstances, and that their decision to retain the condition on the Licence should be affirmed by the Tribunal, for the reasons briefly outlined as follows:

1. Whilst NMF was found not guilty of the offence with which he was charged on 1 May 2025, the magistrate expressed reservations regarding NMF’s version of the events.

2. In his interview with police, NMF admitted to suicide ideation, and admitted that he had not been taking his medication and had been drinking to excess. Notwithstanding the not guilty verdict, these issues remain a concern to the Respondent.

3. NMF further expressed knowledge of the Applicant’s firearm, its location and his involvement in installing the gun safe.

4. Whilst NMF does not have a key to the Applicant’s residence, he lives in a proximal location and the Applicant is clearly supportive of him. Accordingly, there remains a concern that NMF could apply pressure or force to the Applicant in order to access the firearm.

5. Whilst it is acknowledged that this condition creates an inconvenience for the Applicant in arranging alternative storage, the condition is targeted and proportionate in terms of the attenuating risk.

6. The Respondent further relied on the content of the Confidential Bundle.

38. The Respondent submitted that they exercised their discretion in accordance with the statutory objects of the Act, notably to advance public safety above individual inconvenience.

Consideration

39. It is a fact that the Applicant has an unblemished record in his history of gun ownership. He has no criminal convictions, and his integrity and regard for the law have not been brought into question.

40. What is at issue in these proceedings is whether it is in the public interest for the Applicant to continue to have a special condition on his Licence that his firearm be stored at premises other than his residence. The principal issue in determining public safety is whether there is a risk to the safety of the public if the Applicant is permitted to keep his firearm at his residence.

41. The Respondent submits that the special condition must remain in place on the Applicant’s Licence due to the possibility that NMF may access the firearm.

42. It was acknowledged by the Applicant, that NMF has a significant history of mental health issues, and that, from time to time, he ceases taking his medication and engages in excessive alcohol intake.

43. The Applicant asserted that NMF has never been violent, and, in any case, believes there is no risk of NMF accessing a firearm at the Applicant’s residence as (i) the firing pin is kept separately off premises at a secret location, and the firearm is therefore useless without it (ii) NMF no longer resides with the Applicant and has no key or way of accessing the Applicant’s residence (iii) the Applicant’s residence is protected by significant security (iv) the Applicant’s firearm would be stored in a locked safe, which NMF cannot access; and (v) the Applicant and his wife submit that they are no longer willing to allow NMF entry to their residence under any circumstances.

44. The Respondent submitted that despite the fact that NMF was not convicted of the charge, the nature of the relationship between NMF and the Applicant, means there is a residual risk that NMF could access the Applicant’s firearm at some time in the future.

45. The concept of the "public interest" has been considered in numerous matters before this Tribunal. In Comalco Aluminium (Bell Bay) Ltd v O’Connor and Others (1995) ALR 657, it was noted at [681] that “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.”

46. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 and [25] the Appeal Panel found that public interest is “an inherently broad concept giving the appellant [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual”.

47. In Cusumano v Commissioner of Police [2001] NSWADT 50, it was noted at [23]: “There is no guidance in the legislation in relation to how these discretions should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the” Act.

48. Key to the balancing of these considerations is the emphasis in s 3 of the Act which emphasises that firearm possession and use is a privilege which is conditional on the overriding need to ensure public safety. Therefore, it is ultimately the community’s interests which take precedence over the private interests of an individual.

49. In Ward v Commissioner of Police [2000] NSWADT 28 (Ward) at [28], Deputy President Hennessy noted that “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.”

50. The Respondent submitted that during the course of his interview with the police, NMF admitted to suicide ideation over the previous twelve months. In this regard, I note Rosenboom v Commissioner of Police [2006] NSWADT 10 where the applicant left a firearm unattended for a brief time, and his son used it to commit suicide. As per [10] “Mr Rosenboom’s inadvertence was momentary and the results, tragic.”

51. In determining the risk involved in these particular proceedings, there is an Applicant who is demonstrably responsible and committed to, and compliant with, his firearm storage obligations. However, it is acknowledged that his son, NMF, has had recurring mental health struggles for at least twenty years, and the Applicant and his wife have been compassionate, involved and supportive parents throughout.

52. The Applicant submits that neither he nor his wife will ever allow their son entry into their residence again, and he is simply unable to access their home in their absence.

53. I accept the evidence submitted by the Applicant and his building manager, that the residence has significant security access barriers, and that NMF cannot easily gain access to the premises in his parents’ absence.

54. However, I do not accept the submission that the Applicant and/or his wife, will never again allow their son entry to their residence. This is altogether unrealistic and unlikely in the context of what compellingly appears to be a functioning and loving relationship existing between the Applicant, his wife and their son.

55. The Applicant has submitted that he uses the firearm recreationally and only intermittently, with specific individuals who also hold firearms licences. When questioned why the Applicant could not store his firearm with one of those individuals, the Applicant only responded that he did not consider this a fair request of those individuals.

56. The Tribunal appreciates the additional expense and inconvenience caused to the Applicant by the continuing imposition of the special condition. However, this must be weighed against the fact that the Applicant and his wife have a long history of supporting their son through his mental health episodes, and the risks which attach thereto.

57. Further, whilst the Applicant submits that NMF has never behaved violently or coercively towards them, the disparity in their size, age and physical prowess means that NMF could potentially overpower and/or force access to the Applicant’s gun safe at some time in the future.

58. Whilst I acknowledge the Applicant’s submission that the firing pin is kept in a secret location off premises, sufficient damage or consequences can still attach to brandishing a non-operational firearm, and I understand that a replacement firing pin is obtainable in any case.

59. In order to honour the principles of the Act and ensure the public interest is properly and sensibly served, I must apply the test in Ward and be satisfied that there is virtually no risk in removing the special condition on the Applicant’s Licence.

60. In order to find that there is ‘virtually no risk’, consideration needs to be given to factors including the magistrate’s difficulty in accepting NMF’s version of the events despite the not guilty verdict, NMF’s prolonged suicide ideation, his propensity to drink excessive alcohol when off his medication, and his knowledge of the location of the Applicant’s firearm.

61. On the evidence before me, I am satisfied that there remains a low, but not insignificant, risk, despite the Applicant’s security measures and undertakings, that NMF may be present in his parents’ residence in the future, and may be able to access a firearm if one is stored there. The material provided within the Confidential Bundle further bolsters, but is not integral to, this conclusion.

39. In the circumstances, I consider that the imposition of the special condition is somewhat inconvenient for the Applicant but not unfairly prohibitive, and represents an appropriately tempered measure in response to the perceived risk.

40. It follows that the Commissioner’s decision to decline to remove the special condition should be affirmed.

Orders

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: 02 October 2025