GBF v Commissioner of Police, New South Wales Police Force

[2024] NSWCATAD 152

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GBF v Commissioner of Police, New South Wales Police Force [2024] NSWCATAD 152

Hearing dates:

19 February 2024

Date of orders:

31 May 2024

Decision date:

31 May 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member

Decision:

(1)   The decision to refuse the Applicant’s Category AB Firearms Licence is affirmed.

(2) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the publication or broadcast of the identity of the Applicant person referred to as ‘GBF’ in these reasons for decision, is prohibited.

Catchwords:

ADMINISTRATIVE LAW - Firearms –– objects of legislation – public interest – public safety – domestic circumstances unclear when balanced with need to ensure public safety

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Law Enforcement Powers and Responsibilities Act 2002

Cases Cited:

Austin v Commissioner of Fair Trading [2016] NSWCATAP 175

Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11

Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254

Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234

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

Hawatt v Commissioner of Police [2021] NSWCATAD 109

Kocic v Commissioner of Police , NSW Police Force (2014) 88NSWLR 159

Livadaru v Commissioner of Police [2008] NSWADT 160

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

Petas v Commissioner of Police NSW Police [2013] NSWADT 137

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:

GBF (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Stacey McAllen Legal (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2023/00276086

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the publication or broadcast of the identity of the Applicant person referred to as ‘GBF’ in these reasons for decision, is prohibited.

Reasons for decision

What these proceedings are about

1. These proceedings concern the Commissioner of Police’s decision to refuse the applicant’s Category AB Firearms licence application on 30 June 2023 and the decision on Internal Review on 1 August 2023 to affirm that decision.

Introduction

2. The applicant in these proceedings is referred to a ‘GBF’. GBF is the applicant's pseudonym used in these proceedings in conformity with an order under s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) on 9 November 2023 restricting publication of information that will identify the applicant. It is necessary for the purpose of these reasons to identify that GBF is a woman who has been in a relationship with a man which involved some domestic violence behaviour. GBF also lives and works on the land as a primary producer. The relevance of this arises in the context of GBF’s stated need or genuine reason for having a licence and the domestic circumstances that brought about her licence being revoked and ultimately refused. Some references to GBF’s geographic location in regional NSW and where events occurred are omitted to avoid constructive identification as is the name of her daughter and brother.

3. The respondent is the Commissioner of Police NSW Police Force (the Commissioner).

4. The Commissioner’s delegate on internal review formed the view that it was not in the public interest for GBF to hold a Firearms Licence.

5. The relevant history of the matters between the Commissioner and GBF commence with the revocation of her firearms licence on 14 November 2022. The revocation arose in the context of an incident which might be described as ‘domestic violence related’ which occurred on 9 November 2022 where GBF requested Police assistance in dealing with her then partner. GBF also reported a range of allegations involving her then partner. The following day the partner was charged by Police with a number of offences.

6. Arising from these matters Police determined to seize GBF’s firearms and she attended the regional Police Station on 10 November 2022 (in accordance with provisions of the Law Enforcement Powers and Responsibilities Act 2002). Only three out of four firearms were surrendered as one remained at a local gunsmith.

7. In respect of the matters reported to Police and involving Police interaction and response, the Commissioner’s delegate formed the view that arising from that ‘domestic’ incident there were reasonable grounds for forming the view that GBF could not exercise continuous and responsible control, over firearms because of GBF’s way of living and domestic circumstances. As a result of this process the Commissioner’s delegate revoked GBF’s Firearms Licence on 14 November 2022.

8. GBF subsequently made a fresh application for a Category AB Firearm’s Licence on 31 May 2023. That application was refused on 30 June 2023 whereby the Delegate determined that the domestic violence circumstances which culminated in the separation of GBF from her husband in late 2022 and the risk that he might try and access firearms if GBF was licenced to possess them, was sufficient to establish possible risks to public safety. On this basis the delegate determined that issuing GBF with a Category AB Firearms Licence would be contrary to the public interest and the application was refused.

9. On 10 July 2023 GBF sought Internal Review of the decision to refuse the application. In her request GBF set out that she and her daughter were victims of domestic violence, the ex partner was remanded in custody since his arrest in November 2022 and that she as a primary producer managing a family property business would face economic hardship if the refusal was maintained.

10. The specific findings and grounds for refusal are set out below and predominantly relate to matters concerning the actions of the ex-partner. The senior delegate on Internal Review affirmed the original decision to refuse the application on public interest grounds.

Background

11. GBF has been engaged in the firearms licensing regime from 2006 until her licence was revoked in November 2022. GBF was continually licenced to possess and use firearms during that period.

12. On Internal Review the Commissioner’s delegate upheld the original decision to revoke the licence. The reviewer made a number of material findings of fact concerning GBF’s suitability to hold a Firearms Licence. Many of these were aligned with the actions of GBF’s ex-partner.

• GBF was in a relationship with the partner for three years and he lived with GBF and her daughter for approximately two and a half years at her residence.

• GBF’s genuine reason for holding a Firearms Licence is Primary Production.

• On 8 November 2022 the partner was admitted to Hospital and GBF advised Hospital Staff of a number of incidents involving the partner including: that he had started using methamphetamine in May 2022 and unbeknown to GBF, he put some methamphetamine in GBF’s tea. GBF shared her tea with her daughter and as a result they both had inadvertently consumed the drug.

• In October 2022 GBF’s licenced brother gave her one of his rifles to put in her gun safe. GBF took the rifle and placed it behind her bedroom door and went outside to continue with farm chores. The partner arrived at the property and located the rifle. He then carried the rifle outside and started arguing with GBF and pointed the rifle at GBF and her daughter and stated that he would take them out first ‘I’ll blow your head’. The partner also pointed the rifle under his chin stating ‘nobody loves me I should just blow my head off’. GBF admitted that she was concerned that the partner would shoot her and her daughter as she was unsure as to whether the partner had loaded the rifle prior to coming outside.

• The partner has assaulted GBF on a number of occasions that included striking her across the face and hitting her head against a desk and grabbing her by the throat and lifting her off the ground between May and November 2022.

• The partner was placed under arrest based on the information that Hospital staff conveyed to Police (as reported by GBF). As part of the arrest process Police examined the partner’s mobile phone and located what appeared to be child abuse material.

• On 9 November 2022 the partner was charged with 18 offences and an Interim Apprehended Violence Order against him was obtained and issued to protect GBF and her daughter. At the time of the Internal Review the partner remained remanded in custody.

• GBF’s Firearm’s Licence was revoked on 14 November 2022.

13. The reviewer relied on the following grounds by GBF in support of her application to be issued a new Firearms Licence.

1. That GBF as dealing with domestic violence incidents in 2022 but the person responsible is now in custody and has remained in custody bail refused.

2. That GBF is currently suffering stock loses (lambs during lambing) and kids and calves are being attached by feral; pigs and foxes which is impacting in GBF and her family’s livelihood.

3. That without access to firearms GBF is at risk of losing her home and job as she is unable to protect the owner’s livestock from predators.

14. The reviewer also noted that one firearm of GBF’s as at late July 2023 was in her brother’s possession and he was requested to surrender it by Police at his local Police Station.

15. In making their determination to refuse the Internal Review, the reviewer noted Police held serious concerns about the behaviour of the partner (by now referred to as ex-partner), and the risk to public safety posed by his potential access to firearms. Concerns were raised about Court matters not being finalised and a lack of information provided by GBF concerning living arrangements and whether the ex-partner would have access to her and her family if released. The reviewer found that they could not be satisfied on the available information that GBF would not have contact with the ex-partner.

16. The reviewer also placed weight on the lack of action by GBF to report the drugging of herself and her daughter by her then partner at the relevant time. Police were also not notified when the firearms as brandished when GBF and her then 15 year old daughter were threatened with being shot and killed. The reviewer found that on the available information (predominantly submitted by GBF) she did not appear to take any responsibility for the failure to take all reasonable precautions to ensure that the firearm and its ammunition were stored correctly. The reviewer found that this failure almost ended in tragic circumstances. The reviewer was also not satisfied that there was sufficient information to ensure that GBF would not allow such an incident to occur again (re: the unsecured firearm).

17. Reliance was also placed by the reviewer on the firearm that was not surrendered by GBF to Police despite her licence being revoked. It was only through Police contacting the brother that the final firearm was surrendered. The reviewer found this to be part of a failure on GBF’s part to comply with her licensing obligations. Despite the otherwise lengthy unblemished history of firearms possession and use prior to 2022, the lack of any criminal antecedents by GBF and her other submissions as to genuine reason, the reviewer found that on balance the public safety considerations outweighed those factors. The critical finding being that GBF did:

.not have the appropriate level of understanding and appreciation of your obligations as a firearms licence holder, and I am not confident that you would diligently comply with the legislative requirements if you were authorised to possess firearms. For this reason, in addition to the current level of uncertainty relating to (the ex-partner’s) criminal proceedings and his future living arrangements, I am not satisfied that there would be virtually no risk to the public if you were authorised to possess firearms at this time. I also believe that for these reasons it would be contrary to the public interest for you to hold a firearms licence.

18. The reviewer affirmed the original; decision to refuse the application for a Firearms Licence, but noted that once the partner’s criminal proceedings were finalised and GBF is able to demonstrate an understanding and willingness to comply with the strict requirements of a firearms licence holder, a positive assessment might be made on a future application.

Jurisdiction

19. The Commissioner had refused GBF’s Firearms Licence application on the basis of s 11 (4) (a) and 11 (7) of the Firearms Act 1996 which provides:

11 General restrictions on issue of licences(cf 1989 Act s 25, APMC 4, 5, 6)

(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.

(5) A licence must not be issued to a person who—

(a) is under the age of 18, or

(b) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or

(c) is subject to an apprehended violence order or interim apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to an apprehended violence order (other than an order that has been revoked), or

(d) is subject to one of the following in relation to an offence prescribed by the regulations—

(i) a good behaviour bond, whether entered into in New South Wales or elsewhere,

(ii) a community correction order imposed in New South Wales,

(iii) a conditional release order imposed in New South Wales, or

(e) is subject to a firearms prohibition order, or

(f) is a registrable person or corresponding registrable person under the Child Protection (Offenders Registration) Act 2000.

(5A) A licence must not be issued to a person if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that—

(a) the person is a risk to public safety, and

(b) the issuing of the licence would be contrary to the public interest.

(5B) The Commissioner is not, under this or any other Act or law, required to give any reasons for not issuing a licence on the grounds referred to in subsection (5A).

(6) Except in the case of a firearms dealer licence or where the applicant’s genuine reason is business or employment, a licence must not be issued to a person who is not a natural person.

(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

(8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence.

(emphasis added)   

20. 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 first matter listed at s 75 concerns the refusal 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) the refusal of or failure by the Commissioner to register a firearm,

(e) the cancellation of the registration of a firearm by the Commissioner,

(f) a firearms prohibition order made against the person,

(g) a decision made under the regulations concerning the person that belongs to a class of decisions prescribed by the regulations for the purposes of this paragraph.

(Emphasis added)

21. It would have been open to GBF to apply for an administrative review by the Tribunal of the decision on 14 November 2022 to revoke her Category AB licence. I note that the Category AB Licence issued on 2 August 2021 (the last licence held by GBF) would have otherwise expired on or about 2 August 2026. It would have been open to request under s 75 (1) (c) of the Firearms Act to have the revocation decision reviewed and potentially reinstated. Instead GBF made a fresh application for a licence on 31 May 2023.

22. 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.

23. The Tribunal has jurisdiction under the Firearms Act as noted at [20] above.

24. 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

25. The application for administrative review was filed with the Tribunal on 29 August 2023. As the decision on Internal review is dated 1 August 2023 the parties agree that the application to the Tribunal has been lodged within the time provided for making an administrative review application to the Tribunal (28 days).

26. The grounds of review of GBF were as follows:

1. Certain facts within the internal review statement are incorrect and not true.

2. I have provided evidence of genuine reasons in which I require a firearms licence (including for primary production).

3. Many of the ‘facts’ within the internal review statement involve concerns surrounding my spouse (initials), who I have formally separated from since Nov 2022 (pending divorce). (Spouse) has been in custody since Nov 2022, bail refused and awaiting sentence in the District Court in criminal law proceedings of which I am not charged, nor have any criminal record.

What issues do these proceedings raise for determination?

27. On my assessment the issues are as set out by the Commissioners delegate:

• Is it in the public interest for the applicant to hold a licence?

• Is there evidence that the applicant may not personally exercise continuous and responsible control over firearms because of 0 the applicant’s way of living or domestic circumstances,

In reaching this position the Tribunal will also be required to determine whether on the available evidence GBF is a fit and proper person to hold the licence for her to again be issued with a licence.

28. This issue will be determined on the basis of factual findings in this review arising from a consideration of the evidence and law.

Applicant’s written evidence

• Exhibit ‘A-1’: Affidavit of ‘GBF’ affirmed 16 January 2024 (including annexures A-E)

• Exhibit ‘A-2’: Grounds of Review contained in Application for Administrative Review dated 25 August 2023.

Respondent’s written evidence

• Exhibit ‘R-1’ Documents filed under s 58 ADR Act filed 30 October 2023 (89 pages).

• Exhibit ‘R-2’ Supplementary Bundle of s 58 documents filed 24 November 2023 (146 pages).

• Exhibit ‘R-3’ Emails concerning surrender of outstanding firearm and criminal history of GBF’s ex-partner.

29. Both sides were legally represented and provided written submissions and made oral submissions at hearing. GBF was subject to cross-examination at hearing. No other person was required to give evidence at hearing.

GBF’s evidence at hearing

30. In evidence in chief GBF stated that they were employed as a farm manager responsible for 1,400 acres with sheep, cattle and goats as livestock. Her main responsibilities are to keep fences secure and to ensure that stock have sufficient food and water. GBF has engaged in this type of work for 26 years. GBF’s daughter who lives with her and GBF’s brother sometimes assist in the work on the farm as needed.

31. GBF said that her husband was ‘alright to start with’. He had told her that he had been previously involved with Police due to something about ‘Giffies’ or ‘Gippies’ being some sort of questionable cartoon material as GIF files. GBF said that other than that she was unaware of any criminal history including drug use. She said that he was a shearer and strongly built.

32. GBF said that she does not drink alcohol or smoke. She stated in her evidence that she does not wish to see her ex-husband again. GBF said that in the Apprehended Violence Orders (AVO) for her and her daughter she sought the condition of no contact.

33. When asked about her licensing history GBF said that she obtained her firearms licence within two years of coming up to mum’s place (the property). GBF said that she only ever used a firearm to put an animal down that was in distress, or to control wild pigs. GBF said that she has obtained her licence 22 or 23 years ago. She said that she kept the guns in the safe which has a password protected lock and that ‘no one else knows the password’.

34. When asked about the incident of being drugged GBF said that the matter became apparent to her when she could not get to sleep for two days. She said that this situation was the same for her daughter. GBF said that she went into town and had a drug test. Town was 45 minutes drive from the farm. GBF said that at the time of the incident with her spouse he had drugged them and assaulted her daughter. She said that her spouse had put ‘trackers’ on them to follow their movements. GBF said that as a result she spoke to two Police Officers in town and provided background. GBF said that they advised her about separating but that she needed to give her spouse two weeks notice as he was a ‘resident of the house’. GBF told Police that her phone had been interfered with in order to have the trackers put on it.

35. GBF said that her spouse was unwell for some time and had been losing 40-50 kilograms. She was unaware that it might be related to drug use. GBF said that she took her spouse to the doctor and to see a specialist.

36. In respect of her dealings with Police GBF told the Tribunal that the farm was located between two regional Police Stations almost equidistant. When she would report a matter to one station the other station would be tasked with following it up. It took some time for Police to travel to her property.

37. GBF said that her spouse told her one morning that he would leave and come back that night and kill himself by crashing his car into a tree.

38. GBF said that she spent the largest amount of farm work time with the cattle as they were marketed as guaranteed grass-fed and this required ensuring sufficient food in paddocks. They were also marketed as ‘chemical free’ and there was no spraying of the property, with slashing. GBF said that the property is run as a business and is a family partnership with another property.

39. In cross examination GBF was asked to adopt Exhibit – ‘A‘ as true and correct which she did. She was asked how many firearms were registered to her name. GBF said that there were four firearms registered to her.

40. GBF was taken to pages 112-123 of Exhibit ‘R-1’ which depicted a floor plan of GBF’s residence and photographs of the rooms, building and surrounds. When asked how many firearms were registered to her GBF answered four. GBF said that they were stored in a double locked gun safe bolted to the floor of the house in what was GBF’s bedroom. The ammunition was stored in a locked box stored in the top of the gun safe.

41. In respect of the contentious firearm that had not been surrendered, GBF said that as she did not have a licence she believed that she could not retrieve the firearm from the Gunsmith. GBF said that she called her brother who lived near the coast where the Gunsmith was and he retrieved the firearm and handed it in to his local Police Station. GBF said that when she went into (town) she told the Police at her Station about the fourth firearm and that there was no mystery surrounding it. GBF said that Police advised her that as long as it was not in her possession then it was alright. GBF said that at all times Police knew it was with the Gunsmith.

42. GBF told the Tribunal that her daughter is now 16 years and 10 months of age. Immediately following the November 2022 incidents she left the home for a couple of months and had been back at home with GBF now for about 12 months (at the time of the hearing). The daughter has some disabilities and GBF thought that it would be best for her to be out of the home safely for a few months while things were sorted out.

43. GBF said that she sought out a ‘Trauma Coach’ in August / September 2023 due to everything that had happened. She said that she had been put on medication due to sleep problems.

44. In May 2023 GBF said that she applied for a firearms licence again. GBF said that there was no false information in her application. In respect of her ex-partner she said that she dated him for six to eight months and married him in 2020. GBF was taken to page 102 of Exhibit ‘R-2’ which is GBF’s Police statement dated 22 November 2022. Reference was made to the ex-partner’s criminal past in that Police Statement. GBF said that was a reference to the matter involving ‘Gippies’ (see [31] above) which GBF believed were cartoons of some type. However in November 2022 DOCS officers had advised her that the ex-partner had been involved in procuring a child for unlawful use to make obscene material.

45. GBF said that the ex-partner was threatening to her and her daughter at this time and the threats progressed to ‘wanting to kill’ by about July 2022. In April / May 2022 the ex-partner smashed a sheep over the head and ‘wrung it’s neck’. GBF said that the ex-partner was demonstrating some very bad behaviour, and while this was happening his eyes would go black and he would state that ‘his dead brother was visiting’. The ex-partner had told GBF that he was diagnosed with Schizophrenia but that the clinic had told him that he was suffering instead from PTSD.

46. GBF said that she did not know about drugs in the home but she knew by the end of May that the ex-partner had access to Ice. (This she said was due to the tea spiking incident). GBF said that she did not know that her ex-partner was actually on or using drugs at that time.

47. GBF was asked when she first tried to have the ex-partner removed from the home? GBF said that was two weeks prior to him punching her daughter.

48. GBF said that her brother had been staying and brought his own firearm with him to use on the farm. When he went out to work not needing the firearm he left it with GBF to put in her safe. (This was the firearm – being the one that the ex-partner ultimately brandished) The brother kept the bolt and the ammunition, for that firearm that he handed to GBF. GBF admitted during the hearing to placing that firearm behind the door in ‘Ma’s room’ (a reference to when her mother lived in the house). GBF said in evidence that ‘I knew it was stupid and I stuffed up as a result. The only reason I did that is because something urgent came up’. GBF was outside putting out washing with her daughter when her brother said he was going out to work and wanted to give GBF the firearm. GBF then said her daughter called out to her outside. It was at that time that the ex-partner showed up. GBF says that you always put your daughter first and until she had worked out what the issue was she left the firearm out of the safe and behind the door.

49. GBF agreed with the proposition that there was just enough time to put the firearm away. GBF agreed that she had not physically checked to see that the gun was not loaded, but she said that she always knew that it was not loaded because the gun bag was not heavy enough.

50. GBF said that when the ex-partner brandished the rifle and threatened to shoot them and himself she said that she needed to appear afraid (even if in reality she was not concerned about being shot as she knew that the gun was not loaded) because if he knew that was the case he would have used the gun to strike them or some other assault.

51. GBF admitted that she had (on the available evidence) breached s 39 (1) (a) and (c) of the Firearms Act.

39 General requirement

(1) A person who possesses a firearm must take all reasonable precautions to ensure—

(a) its safe keeping, and

(b) …. , and

(c) that it does not come into the possession of a person who is not authorised to possess the firearm.

52. GBF also admitted when put to her that she had breached s 40 (1) (a) of the Firearms Act.

40 Category A and category B licence requirements

(1) The holder of a category A or category B licence must comply with the following requirements in respect of any firearm to which the licence applies—

(a) when any such firearm is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable,

53. GBF was taken to the emails that appear at the beginning of Exhibit ‘R-3’. Those emails detail that eight months after the licence was revoked the fourth firearm had still not been surrendered. The Firearms Registry followed this up suggesting that it may have been collected and as it was not surrendered it was deemed to be in the possession of GBF. It transpired that her brother had collected it from the Gunsmith and the brother had made inquiries about having that rifle transferred into his name. Ultimately however the brother surrendered it to his local Police Station as referred to at [41] above.

54. In these circumstances it was put to GBF that she had breached s 25 (1) and s 37 of the Firearms Act.

25 Surrender and seizure of firearms when licence suspended or revoked(cf APMC 4 (b), 1989 Act s 38)

(1) If a licence is suspended, revoked or otherwise ceases to be in force, the person to whom it was issued must immediately surrender to a police officer—

(a) any firearm in the person’s possession, and

(b) the licence.

Maximum penalty—50 penalty units or imprisonment for 2 years, or both.

…

37 Requirements relating to registered firearms

(1) The person in whose name a firearm is registered—

(a) must produce the firearm for inspection by a police officer at any reasonable time when requested to do so by the officer, and

(b) must, if the firearm is supplied or lost by, or stolen from, that person, immediately notify a police officer of the supply, loss or theft of the firearm and provide the Commissioner, within 7 days after the firearm is supplied, lost or stolen, with particulars of the supply, loss or theft in accordance with the regulations.

(2) Any person (other than a licensed firearms dealer) who acquires a firearm from another person must provide the Commissioner, within 7 days after the firearm is acquired, with such particulars as may be prescribed by the regulations.

55. GBF said that she was in contact with local Police about these matters but had trouble crossing / returning phone calls with the Police she had been dealing with.

Commissioner’s evidence

56. The Commissioner relied upon the material outlined at [28]. None of the Commissioner’s witnesses were required for cross-examination at hearing,

Applicant’s submissions

57. In oral submission at the end of the evidence GBF’s representative submitted that GBF had 20 unblemished incident free years of responsible firearms licencing history. It was submitted (but not put in evidence) that GBF intends to file divorce papers forthwith concerning her husband (ex-partner). It was submitted that GBF is a fit and proper person and of good character. It was also submitted that GBF took reasonable steps to hand in her licenced firearms.

58. GBF submitted that there was evidence which established proper safekeeping of firearms except for the one blemish where the ex-partner located the rifle behind the bedroom door. It was submitted that GBF accepted that her actions in not securing the firearm compromised public safety.

Commissioner’s Submissions

59. The Commissioner made oral submissions at the conclusion of the evidence. The Commissioner submitted that the decision of the delegate on review should be affirmed by the Tribunal. It was submitted that GBF is not a fit and proper person to hold a firearms licence at present due to her actions in allowing a firearm to be unsecured and accessed by an unauthorised person.

60. It was also submitted that it would be contrary to the public interest to allow GBF to have a firearms licence.

61. In respect of ‘fit and proper’ the Commissioner submitted that the Tribunal needed to be positively satisfied. In respect of the public interest it was submitted that the test is whether the issue of the licence would compromise public safety. Due to the relationship between GBF and the perpetrator (ex-partner) it was submitted that there may be future domestic violence and proximity to firearms in such a circumstance would not be in the public interest. Additionally the Commissioner submitted that the domestic and living arrangements of GBF mean that she may not be able to exercise safe and continuous control of firearms at all times.

62. The Commissioner submitted that the ex-partner of GBF was violent from May 2022 until November 2022. GBF had personal knowledge of the ex-partner‘s behaviour and as a result should have taken extra and better precautions about keeping her firearms safe.

63. The Commissioner submitted that a reasonable person would have inferred that the ex-partner was dangerous based on his demonstrated behaviour. It was submitted that the ex-partner would never be able to hold a firearms licence because of the provisions of s 11 (5) (f) of the Firearms Act.

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)…

(3) …

(4)…

(5) A licence must not be issued to a person who—

(a) .

(b) ..

(c) …

(d) …

(i) ..,

(ii) ..,

(iii) ...,

(e).., or

(f) is a registrable person or corresponding registrable person under the Child Protection (Offenders Registration) Act 2000.

64. Reference was made by the Commissioner to the case of Petas v Commissioner of Police NSW Police [2013] NSWADT 137 where the Administrative Decisions Tribunal (ADT) observed that the individual’s interest will always be subordinate in firearms matters to the public interest. In that matter the ADT set out the relevant public interest matters noting that there was not a list of factors, referencing Martin v Commissioner of Police NSW Police Force [2010] NSWADT 276:

72 In Wilkinson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 59 Deputy President Hennessy stated at paragraph [25]:

25 As the Firearms Act does not list factors which a decision maker must take into account when exercising a discretion about revocation, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act. ...

65. Reference was also made by the Commissioner to the case of Hawatt v Commissioner of Police [2021] NSWCATAD 109 which followed the consideration of the ADT in Petas where at [43] the Tribunal observed concerning the public interest that:

“43. In Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 the Tribunal said:

“69 The Applicant's individual interest in retaining his licence must be subordinate to the public interest in ensuring public safety. This position is supported by the decision of Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 where it was stated at 681:

"The purpose of the reference to 'public interest’ is to ensure that private interests are not 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."

...

...

73 A firearm licence is a privilege and not a right. 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, New South Wales Police [2005] NSWADT 75 at paragraph [25].

74 The underlying principles of the Act stated in section 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at paragraph 28, Deputy President Hennessy said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk".

The likelihood of risk is to be assessed by reference to relevant prior conduct: Brosowski v Commissioner of Police [2003] NSWADT 182 at [41].”

66. The Commissioner submitted that because of the real fear that GBF and her daughter experienced then extra precautions should have been taken by her.

67. Another significant matter that the Commissioner returned to concerned the storage breaches. In October 2022 the brother gave GBF a rifle to place in the gun safe. The Commissioner submitted that when considered clearly GBF simply forgot to do this. GBF admitted this failure during her sworn evidence and at other times connected with the proceedings. On that issue alone the Commissioner submitted that she was not a fit and proper person to hold a licence, and due to the uncertain domestic circumstances (notwithstanding the ex-spouse currently being remanded) it was not in the public interest for the licence to issue.

68. In closing the Commissioner submitted that any condition if a licence was granted that involved GBF having a firearm on her own property (which was essentially the entire basis of GBF’s application for understandable reasons) would be insufficient to address the current demonstrated risk to public safety.

69. The above submission was in response to GBF’s final paragraph of her affidavit (Exhibit ‘A-1’) whereby she deposed that:

76. I am more than willing to undertake any and all requirements that the Commissioner of Police requires for me to hold a firearms licence.

70. In written submissions reference was made to the Court of Appeal’s observations in Kocic v Commissioner of Police, NSW Police Force (2014) 88NSWLR 159.

71. Reference was also made to the case of Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at [22]:

1. In my opinion, the term "fit and proper person" in s. 11(3)(a) of the Act should also be given a wide meaning. As stated by Mason CJ the breadth and content of the concept must be derived from the Act and the purposes of the Act. In this case, Parliament has expressly stated what the underlying principles of the Act are. This includes the principle that the possession of a firearm is a privilege and that it is conditional on the overriding need to ensure public safety (see s. 3(1)(a)). Accordingly, the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety. In my opinion Parliament has made this clear with the additional words in s. 11(3)(a) of "... and can be trusted to have possession of firearms without danger to public safety and the peace." That is, s. 11(3)(a) of the Act requires the Commissioner to determine the fitness and propriety of an applicant for a licence by having regard to the applicant's conduct and whether that conduct is such that he can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace.

   72. The Commissioner submitted that an applicant is not required to prove a ‘near-absolute negative’ but rather that the Tribunal is to consider all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety as referred to in Webb.

Consideration

73. The decision under review is based upon the notion that GBF having access to firearms would be contrary to the public interest. In respect of the public interest I have previously noted 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.

74. 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

75. It is well understood when reviewing these decisions in the Tribunal that these principles and objects provide clear guidance as to how the provisions under the Act are to be administered. This matter was raised by Deputy President Hennessy in Livadaru v Commissioner of Police [2008] NSWADT 160 where referring to the public interest at [54]:

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

76. In addition as has previously been observed consistent with a line of cases referred to in part by the Commissioner, 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.

77. In the Appeal Panel case of Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 (Lee), concerning giving proper consideration of all relevant matters when determining matters as to the public interest. At [24] - [25] of Lee the Appeal Panel observed:

24. The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the “overriding need to ensure public safety”: Firearms Act s 3(1)(a). Public safety is improved by “imposing strict controls on the possession and use of firearms” and by “promoting the safe and responsible storage and use of firearms”: Firearms Act s 3(1)(b). The objects of the Act include “to establish an integrated licensing and registration scheme for all firearms;” “to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;” and “to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms”: Firearms Act, s 3(2)(b), (c) and (d).

25. In that statutory context it is uncontentious that a relevant consideration is the applicant’s previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant. The Tribunal was reviewing seven separate decisions. It was right to observe that Hijazi does not suggest that contraventions should be treated as having equal weight in respect of all licences. But in Hijazi, the Appeal Panel went on to hold that it was erroneous to quarantine contraventions that relate to one type of licence when considering whether another type of licence should be revoked. Another way of expressing that principle is that it is erroneous to treat contraventions relating to another type of licence or permit as irrelevant considerations.

78. I also note that consistent with the Commissioner’s submissions, whilst not the main basis for the decision for review before the Tribunal, the notion of ‘fit and proper’ is referred to in the refusal decision. The case of Bond – v - Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 addresses the matter of fit and proper as follows:

"The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of a person who will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not a fit and proper person to undertake the activities in question.

Various ADT and Tribunal cases have relied on Bond.

79. I observe that 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.

80. This position from Bond 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 Firearms Act access to and use of firearms is not a right but a privilege. It is clear from the legislation and the authorities referred to above 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.

81. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 Deputy President Hennessy observed at [27]-[28] that:

1. One of the objects of the Act, as set out in s 3, is "to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety." In determining whether Mr Ward is a fit and proper person to hold a licence consideration must be given to the circumstances surrounding his conviction for assault. 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.

2. 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.

   82. In the case Austin v Commissioner of Fair Trading [2016] NSWCATAP 175 at [59] the Appal panel of the tribunal observed:

The passages from the authorities set out by the Tribunal (at [26]-[30]) emphasised:

1. The very purpose of the words “fit and proper” is to give the widest scope for judgment and for rejection on that ground.

2. “Fit” with respect to an office is said to involve honesty, knowledge and ability.

3. The expression “fit and proper” person, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities.

4. Depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed it will not occur, or whether the general community will have confidence that it will not occur.

5. In certain contexts, character (because it provides indication of likely future conduct) may be sufficient to ground a finding that person is not fit and proper to undertake the activities in question.

6. The expression meant that an applicant needed to show not only that he has the requisite knowledge of the duties and responsibilities of the holder of the particular licence but also that he is possessed of sufficient moral integrity and rectitude to be accredited to the public as a person to be entrusted with the work the subject of the licence

   83. An essential concern of the initial delegate, and the senior delegate on review, was the position concerning s 11(4) (a) of the Firearms Act as et out above at [19]. That section provides that: 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.

   84. In the Internal Review the reviewer noted that:

Despite my above finding, I would like to note that a positive assessment may be made in the future upon re-application once (ex-partner’s) criminal proceedings have been finalised and you are able to demonstrate an understanding and willingness to comply with the strict requirements of a firearms licence holder.

85. The position of the ex-partner remains unclear. Whilst a submission was made that divorce proceedings would be commenced ‘forthwith’ there was no evidence that this actually would or had happened. The Tribunal does not doubt GBF’s position that the relationship is over. She raised her dislike of the person and noted her own foolishness and stupidity at being taken in by him and tolerating him, at various times in the giving of her evidence.

86. In my view the main matters that stand in GBF’s favour is her candour both before the Tribunal and with Police generally (other than the contentious issues with Police of the fourth firearm) and her unblemished prior firearms history and lack of any criminal or adverse traffic history.

87. However at this point the Tribunal simply has no evidence as to the ex-partner’s criminal proceedings and in practice whether during Family Law processes he would have cause to be involved with GBF in the absence of going trough legal representatives. I do note that at present AVO type orders are in place but these are mainly of deterrent value and would not absolutely prevent a set of tragic circumstances should the ex partner obtain possession of a firearm.

88. On the issue of the fourth ‘not surrendered firearm’ I accept GBF’s position that she did not believe that she could handle that firearm herself once her firearms were seized. In addition it would appear that GBF was obtaining her information and advice from local regional Police, whereas the Firearms Registry was following the matter up because it was an outstanding matter whereby the communication did not take into account the full circumstances of GBF’s explanation and concerns. At no time was there evidence that the Gunsmith was approached by the Registry. I note in any event that the brother handed the firearm into his local Police Station without incident.

89. In my view the major concerns arise from GBF’s demonstrated failure to secure the brother’s firearm immediately (if at all) in the circumstances. Whilst a mother’s concern for her daughter and noting that this might have been understandably elevated due to the presence of diagnosed disabilities in the teenager, those circumstances on the available evidence illustrate the lack of judgement exercised by GBF.

90. The daughter and GBF were at home hanging out the washing. The brother called GBF to come inside and receive the firearm, which she did. Rather than put it in the gun safe immediately she put it behind a bedroom door because her daughter had called out to her. Having regard to the nature of the task that she was involved in with the brother’s firearm, and noting her statutory obligations and duties in that regard, I find that GBF did not exercise safe and continuous control over a firearm in that instance.

91. Whilst GBF gave evidence before the Tribunal that the firearm (to her mind) was not loaded, that was not something that she could have been certain of. The ex-partner had prior knowledge as to where he might find a gun easily within the premises. That is not to find that this is evidence of prior breaches, but it does seem unusual that in a very short period of time having returned to the house, the ex-partner was able to locate and brandish the firearm in seriously threatening manner. I note that he has been charged with firearms offences following this incident whereas GBF has not.

92. In my view because of that incident alone, and noting that GBF’s domestic circumstances remain unclear, I cannot be satisfied that GBF on the available evidence is currently able to personally exercise continuous and responsible control over firearms.

93. In applying the discretion for the public benefit, having considered the evidence I find that there are matters which on an objective test (having regard to the objects of the legislation and cases referred to above) that would prevent GBF currently being granted a firearms licence.

94. GBF’s domestic circumstances are uncertain. The relevance of this being that (a) there was a serious and violent confrontation in a domestic violence context involving a firearm where I have found GBF to be at fault and (prima facie because of the charge) the ex-partner was also at fault and: (b) the current or future possibility of the ex-partner accessing GBF at her residence remains a real and appreciable risk in the absence of any verifiable evidence to the contrary.

95. If the ex partner was to come to GBF’s residence and commit or try and commit a domestic violence offence, on GBF and / or her daughter, that would be elevated in seriousness if there were firearms at the residence of GBF. In my view on the evidence of the ex-partner’s physical stature, his methamphetamine use, his antecedents and the position that his ongoing and future custody arrangements are unknown to the Tribunal, means that the risk is significant to public safety including the ex-partners safety.

96. Whilst I have read GBF’s affidavit and the associated references that all speak highly of her, and noting as I have her positive attributes including her otherwise unblemished record, for the reasons outlined above I reach the following conclusion. Weighing up the paramount consideration of keeping the community safe by ensuring public safety, I am not satisfied that it is in the public interest for GBF to be at this time issued with a firearms licence, and I so find.

97. Importantly under the firearms licensing regime the Commissioner is required to form a view that a licence holder will be able to maintain safe and continuous lawful control of firearms in their possession at all times. This important requirement is a cornerstone to public safety and the need to ensure that consistent with the objects, the Commissioner can be satisfied that the condition concerning the overriding need to ensure public safety is met.

98. 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".

99. In balancing those risk matters 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 not be in the public interest to reissue the licence or grant the licence application in the fresh terms sought. In my view, on the evidence as it stands today the risk is both real and appreciable predominantly because significant matters concerning the ex-partner's health, liberty and motives, remain unknown.

100. However, should the situation become clear where there is no longer an elevated atmosphere of risk because of the occurrence of certain events, such as a lengthy custodial sentence, and GBF is able to demonstrate to the Commissioner’s delegate’s satisfaction the matters concerning safe storage and compliance, like the reviewer observed, it would be open to the licence to be granted in future if no other adverse matters arose in the interim, subject to the Commissioner’s discretion.

Conclusion

101. Because of the findings that I have made, it is appropriate to affirm the decision of the Commissioner.

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

103. I therefore make the following orders:

Orders

1. The decision to refuse the Applicant’s Category AB Firearms Licence is affirmed.

2. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the publication or broadcast of the identity of the Applicant person referred to as ‘GBF’ in these reasons for decision, is prohibited.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

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: 31 May 2024