GQG v Commissioner of Police, NSW Police Force

[2024] NSWCATAD 323

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GQG v Commissioner of Police, NSW Police Force [2024] NSWCATAD 323

Hearing dates:

13 September 2024

Date of orders:

01 November 2024

Decision date:

01 November 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Emeritus Prof R Graycar, Senior Member

Decision:

(1) The decision under review is affirmed.

(2) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the publication of the name of the child D, or any information which could identify the child D, is prohibited.

Catchwords:

ADMINISTRATIVE REVIEW, firearms – special condition on licence – public interest- domestic circumstances

Legislation Cited:

Administrative Decisions Review Act 1977

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Mental Health Act 2007

Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Cases Cited:

Bilanenko v Commissioner of Police [2022] NSWCATAD 76

Cole v Commissioner of Police [2021] NSWCATAD 325

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Cusumano v Commissioner of Police [2001] NSWADT 50

Emery v Commissioner of Police [2022] NSWCATAD 122

Emery v Commissioner of Police [2022] NSWCATAD 122

Hill v Commissioner of Police, NSW Police Service [2002] NSWADT 218

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

Meacham v Commissioner of Police [2020] NSWCATAP 107

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

Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286

Snow v Commissioner of Police, NSW Police Force [2024] NSWCATAD 214

Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93

Tolley v Commissioner of Police [2006] NSWADT 149

Ward v Commissioner of Police [2000] NSWADT 28

Texts Cited:

None

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
B Flaherty (Agent for the Applicant)
M Winram (Respondent)

Solicitors: Maddocks Lawyers (Respondent)

File Number(s):

2024/00222970

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the publication of the name of the child D, or any information that could identify the child D, is prohibited.

REASONS FOR DECISION

Introduction

1. The matter before the Civil and Administrative Tribunal (Tribunal) is an application for review by GQG (the applicant) of a decision made by a delegate of the Commissioner of Police, NSW Police Force (the respondent) to impose a special condition on the applicant’s firearms licence which prevented him from storing his firearms in the home that he shares with his partner and her two children. The decision to impose the condition was made on 4 March 2024. He sought internal review of that decision by a request dated 10 April 2024. On 20 May 2024, a Senior Adjudicator wrote to him indicating that the person had conducted an independent (internal) review of the decision but had decided to affirm it.

2. The applicant then sought review by the Tribunal, and his application for review was received by the Tribunal on 17 June 2024. A hearing took place on 13 September 2024

Background

3. The facts are generally not in dispute, save for some matters that the applicant and his partner (P) identified at the hearing. The applicant was licensed to possess and use firearms, most recently holding a five year licence that was due to expire on 30 March 2025. The applicant’s partner, P is the mother of two children.

4. On 13 December 2020, the police were called to an incident at her home after an argument between P and the older child (D) who, in the course of the incident, grabbed a knife from the kitchen and held it to his head. He is reported to have told the police that he wanted to “push it into my brain” and is also said to have stated that he had regular thoughts of self-harm and suicide.

5. The police attended P’s home again on 21 June 2021 on which occasion D took a kitchen knife out of the safe lock box threatening to harm himself. P advised the police that he had had a recent admission to a mental health ward in a children’s hospital and was seeing a psychiatrist weekly. She had on this occasion forgotten to lock the safe box in which she stored the knives.

6. On 28 June 2021 there was a further incident in which P became fearful of what D would do and sought assistance from a family friend. The incident escalated and D fashioned a noose which was around his neck but which P was able to remove. He then struck his mother a number of times and eventually P called the police. Meanwhile D returned to the garage and put a noose around his neck. When police arrived, D was taken to hospital and scheduled under the Mental Health Act 2007 (NSW). A provisional Apprehended Violence Order (AVO) was issued on 6 July 2021.

7. On 6 July 2021, police attended again after D threatened to jump off the balcony. He was taken to hospital and then to the police station. The following day, he was attending a psychological appointment where he had an anxiety attack which could not be de-escalated and during which he tied the loops from his face mask around his neck.

8. On 17 July 2021, there was an incident during which the applicant (who had commenced a relationship with P in 2021) was in attendance and attempted to intervene. He managed to restrain D but when he was no longer being restrained, D went to the garage and tightened an electrical cord around his neck which the applicant and P were eventually able to remove. The applicant incurred a cut on his arm in the process. On that occasion, P reported that there is “constant fear in this house for everyone’s safety” and that D escalates from “zero to a hundred in a split second”. She also reported that she had discovered that D was not taking his medication. An AVO was imposed by the police to protect P from D.

9. There was a further admission to the mental health ward of a children’s hospital from 22 July 2021. On 9 August 2021, while at a meeting with a social worker at D’s school, D apparently threatened his mother again and police were called. Police took D into custody and he was charged with various offences including damage property and common assault (domestic violence related). These matters were dealt with by the Children’s Court which, on 25 January 2022, dismissed the charges pursuant to s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).

10. Before the Tribunal were a number of reports about D, some of which were prepared for the purpose of the criminal proceedings.

11. D has been diagnosed with Autism Spectrum Disorder (Level 2-Moderate) (ASD) and he was accepted as a participant in the National Disability Insurance Scheme (NDIS) with a plan commencing 4 April 2023. One of the goals identified in his plan was “I would like to learn to regulate my emotions so I can remain calm in situations that I find challenging”. Funds were allocated for an occupational therapist and a psychologist, as well as an amount for a social skills program.

12. The applicant moved into P’s home in September 2023 at which time D was 15 years old and the younger child 14.

13. On 5 September 2023 the applicant updated his address with the Firearms Registry to P’s address.

14. By letter dated 4 March 2024, the applicant was advised that a special condition had been placed on his firearms licence as follows:

The licence holder is prohibited from possessing or storing firearms, firearm parts and ammunition at his residence or any location where [D] DOB [ ] resides or frequents.

15. He was advised that the reason for the imposition of the condition was that concerns are held regarding his capacity to maintain “continuous and responsible control over his firearms due to domestic circumstances”. The applicant was also required to notify the Firearms Registry and police of his new safe storage address and was advised that a safe storage inspection would also be conducted at the new location.

16. The applicant sought internal review of that decision on 9 April 2024. He provided a written submission in which he referred to his “untarnished record of safe use and storage of firearms” and contended that the special condition would have a “profound impact” on his ability to maintain his leadership and mentoring appointments within the sport in which he was a prominent Australian figure in target shooting and in which he has held various leadership roles.

17. He claimed in his internal review request that D had been “fully rehabilitated with the proper supports now in place” and referred to a report from D’s occupational therapist who was working with him on, among other things, emotional regulation, and indicated that her intervention will “likely involve collaboration with other supports “including his family, teachers and psychologists””.

18. The decision to impose the special condition was affirmed on internal review. The decision maker acknowledged that there were no concerns in relation to the applicant personally but the concern was in relation to D, concluding: “I agree that there is serious cause for concern regarding storage of firearms at your premises due to incidents involving [D]”.

19. The applicant was notified of the outcome of the internal review by letter dated 20 May 2024. He then sought review by the Tribunal and a hearing was held on 13 September 2024.

Evidence at the hearing

20. The applicant and P both attended the hearing on 13 September 2024. In addition to providing two written statements each, with supporting documents, each gave oral evidence and was cross examined by the representative for the respondent.

21. The applicant gave evidence about his use of firearms. He is a competitive shooter and he engages in this activity most weekends. He also has a leadership role in the sport which includes being vice captain of a District Rifle Club. If he is not at that club on the weekend he may be training, or at a different club.

22. The applicant explained why it is important to him to have firearms at home. In addition to cleaning the firearms, he engages in regular general maintenance and also does work customising rifles. He estimated that he would spend half an hour to an hour, two to three times a week working on his firearms.

23. He was asked where in the house he does this work and he explained that there is a reloading bench set up in the garage. The reloading bench is about 8 square metres in size and that is where he would undertake those activities were the condition to be lifted from his licence.

24. The applicant was taken to the respondent’s submissions where the factual background to the decision was set out and asked to identify any aspect that he disagreed with. He took issue with some of the details of the incident that occurred on 17 July 2021, noting in particular the injury that he experienced which he explained was a superficial scratch and not, as stated, a “large gash”. He also disputed the use of the term “wrestled” in relation to the description of his having restrained D: he contended it was more in the nature of a bear hug.

25. P also gave evidence. She was also asked if she disagreed with anything in the respondent’s narrative background and identified an error in what was said to have been six weeks that D spent in hospital. Rather than six weeks, she explained that he spent two separate periods as an inpatient: the first was for five days and the second approximately 11 days. She also disagreed with the respondent’s account of the incident of 17 July 2021, and stated that the applicant did not sustain a “gash” but rather a scratch, though she accepted that there was blood on the floor.

26. Despite a number of references in the various reports of health professionals which were included in the applicant’s evidence which referred to D experiencing suicidal ideation and thoughts of self harm, P did not accept that D had been suicidal and experiencing thoughts of self harm. However, she acknowledged that his school had had concerns about the risk of him self-harming on campus. He had apparently told other children at his school that he was going to jump off the bridge.

27. P had been recommended to lock away any implements such as knives that D could use to harm himself and she accepted that there was an incident where he was able to access a knife in June 2021.

28. In July 2021 she gave up full time work so that she could spend more time caring for D and she now works part time.

29. P outlined the various health practitioners D had seen. In addition to a diagnosis of ASD (noted above), he has also been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). After the incidents in 2021 that led to his appearing before the courts, he had a sustained period of attendance at a child and youth mental health service. He continued to attend that service until he was discharged on 15 March 2023 at which time it was recommended that he continue with the doctor he was seeing for management of ADHD; with his GP for medication and once he has been accepted into the NDIS, that he see an occupational therapist and receive psychologist support in the private sector.

30. P told the Tribunal that D had resumed seeing a psychologist in April 2024 who he now sees on a weekly basis. While he had a period of over a year without seeing a psychologist, P advised that during that time he had had access to the school’s wellbeing centre. When asked why he had recommenced that treatment in April 2024, P indicated that she had the funds from the NDIS and would lose that support if not used. However, she added that a factor that led to his resuming attending a psychologist was that his “autism burnout” had increased and there was an increase in the challenges of getting him to school regularly.

31. P also has a firearms licence. Her application for the licence was initially refused, but was then granted, with a notation of “special condition”. She was questioned about that issue, and her awareness of that condition, at some length by the respondent’s representative, but the Tribunal did not consider that relevant to the outcome of this application.

Relevant Legislation

32. The key relevant statutory provision governing the decision before the Tribunal is the Firearms Act 1996 (NSW) (Firearms Act). Section 3 sets out the principles and objects as follows:

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

(c)    to facilitate a national approach to the control of firearms.

(2)    The objects of this Act are as follows--

(a)    to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(b)    to establish an integrated licensing and registration scheme for all firearms,

(c)    to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(d)    to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms,

(e)    to ensure that firearms are stored and conveyed in a safe and secure manner,

(f)    to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

33. Section 11 of the Firearms Act states:

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.

(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.

34. Section 19(1) provides “A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose” and further provision is made for conditions in regulations (see s 19(3)).

34. Section 75 provides for review of decisions:

75 Administrative reviews by Civil and Administrative Tribunal of certain decisions

1. (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, (emphasis added).

…

36. Other relevant statutory provisions are s 9 of the Administrative Decisions Review Act 1977 (ADR Act) which provides that the Tribunal has administrative review jurisdiction if enabling legislation provides that applications may be made to the Tribunal for administrative review (cf Firearms Act, s 75).

37. In determining an application for administrative review, by s 63 of the ADR Act the Tribunal is to decide what is “the correct and preferable decision” having regard to “any relevant factual material, and any applicable written or unwritten law”. That can include material that postdates the decision under review (see Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [37]-[38], [45]-[46], [99], [143]; Bilanenko v Commissioner of Police [2022] NSWCATAD 76 at [10]. The Tribunal can exercise all of the functions of the person who made the decision: and in determining an application for review, it can affirm the decision; vary the decision; set the decision aside and substitute for it a different decision, or set the decision aside and remit it to the decision maker for reconsideration in accordance with any directions or recommendations of the Tribunal.

38. By s 38(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act), the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. But as the Appeal Panel explained in Meacham v Commissioner of Police [2020] NSWCATAP 107 (Meacham) at [54]:

Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on “logically probative material”, and not on “mere suspicion or speculation”, as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 (“Pochi”) at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 (“Sullivan”) at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it.

39. There is no formal onus of proof in the Tribunal: see Meacham at [75] but as noted at [82]-[83]:

… [I]n an administrative review case, the parties put on such evidence as they wish and, in a matter of this kind involving the exercise of a discretion, it is a matter for the Tribunal to properly consider all relevant materials and ignore all irrelevant matters in exercising the power of the relevant administrator in review proceedings. This is especially the case where a decision has been taken on a discretionary basis in light of the public interest.

Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. … [T]he Tribunal is required to base its findings of fact on “logically probative material”: Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17].

Consideration

40. There is no dispute that the applicant has, as he described it in his statement, an “untarnished record of safe use and storage of firearms”. No issue has been raised by the respondent about him personally and it has never been suggested that the applicant presents any risk to public safety. Rather, the concern in this case arises from the applicant’s domestic circumstances and his ability to exert the requisite control over his firearms (cf Firearms Act, s 11(4)(a)). The key issue is the storage of firearms in proximity to the child D who has come to the attention of mental health authorities, the police, and the Children’s Court as a result of the incidents outlined above.

41. There are a number of key principles that have been established in relation to decision making under the Firearms Act. First, it is notable that by s 3(1)(a), a key object of that Act is “to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety” (emphasis added). It follows from this that the community’s interests take precedence over the private interests of an individual. As put by Hennessy DP in Cusumano v Commissioner of Police [2001] NSWADT 50 (Cusumano) at [23], the discretionary powers in the Act (including the power in s 19 of the Act to impose a special condition on a firearms licence) “should be exercised in a way which promotes the principles and objects of the Firearms Act.”

42. In Ward v Commissioner of Police [2000] NSWADT 28 (Ward) at [28] the Tribunal said that in terms of public safety:

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. (emphasis added)

43. While the applicant is not required to prove a negative, the Tribunal’s assessment is to occur in a “nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety”: see Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [66] and see also at [64]–[65] where the Tribunal reviewed other authorities including Ward.

44. The concept of public interest is not defined in s 11(7) or elsewhere in the Firearms Act but it has been held to be informed by the underlying principles and objects of the Act: see for example Emery v Commissioner of Police [2022] NSWCATAD 122 (Emery) at [26], referring in turn to Cusumano at [23]. As the Tribunal explained in Emery at [27]-[29]

27   In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the ‘public interest' is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in deciding whether to exercise a discretion adversely to an individual. In Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24], the Tribunal found that public safety is to be given paramount consideration.

28   In considering the question of public interest, the Tribunal takes into account the interests of public protection, public safety and the proper functioning of the legislative requirements of the firearm scheme. Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33].

29   In Davos v Commissioner of Police [2013] NSWADT 7 at [117], the Tribunal said:

The most fundamental principle of the Act is that the possession and use of firearms is conditional upon the overriding need for public safety. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences.

45. The respondent relied on the decision in Tolley v Commissioner of Police [2006] NSWADT 149, where a condition had been imposed on a licence holder in relation to the storage of firearms at his residence because of concerns, not about the licence holder, but about his son. The facts were different to the situation here in that the concerns about the son arose from convictions, rather than concerns about his mental health. Nonetheless, the Tribunal stated at [37]-[38]

37 Although it is clear that Mr Tolley has himself committed no conduct or omission that would jeopardise public safety and that he may also be inconvenienced by the imposition of the condition, the need for him to retain his firearms licence without condition is subordinate to the need to ensure public safety.

38 It cannot be said that there is virtually no risk to public safety if Mr Tolley keeps the firearms at his premises. Determining hypothetical questions such as whether Stuart Tolley will return to reside with his parents and whether Mr Tolley is at greater risk of theft or home invasion is unnecessary to reach this decision. There is a risk to public safety by the existence of the firearms on premises where Stuart Tolley and his associates may be aware firearms are present.

46. The Tribunal accepts that the applicant will experience considerable inconvenience if the condition on his licence is maintained and that that condition may impact upon his competitive shooting activities but notes that in Hill v Commissioner of Police, NSW Police Service [2002] NSWADT 218 at [22] the Tribunal stated that “a decision maker should not shy away from an exercise of … discretion merely on the grounds that the licensee may suffer hardship or inconvenience”. Any inconvenience caused must give way to the “overriding need to ensure public safety”: Firearms Act, s 3(1)(a).

47. The respondent relied on s 11(4) of the Act which refers to the belief of the Commissioner that the applicant may not “personally exercise continuous and responsible control over firearms because of … the applicant’s way or living or domestic circumstances”.

48. It is clear from the evidence before the Tribunal that the condition was imposed only when the applicant had moved in with his partner and sought to register that address in relation to his firearms licence as the location of the firearms.

49. The applicant’s representative relied on the decision in Cole v Commissioner of Police [2021] NSWCATAD 325 (Cole), where the Tribunal set aside a special condition similar to that which has been imposed on the applicant in this case. There the respondent had also relied on Tolley to support its contention that the condition should be maintained because of the risk posed by the son of Mr and Mrs Cole. The Tribunal noted at [49] that the factual allegations said to create the ”real and appreciable risk” relied on was “limited to the allegation that the Applicants’ son ‘is known to frequent and on occasion stay at [the Applicants’ residence’” and, as it was not clear where he was living, the Tribunal could not be satisfied that he would not visit or stay there from time to time. By contrast, as the Tribunal pointed out in Cole at [44]-[47], the facts in Tolley, included, first, that the son had been living at the house of his parents where the firearms were stored, and it was anticipated that he would return to live there once released from custody. Second, the son had committed drug offences at the parents’ residence; third, a search warrant executed at the premises of his co-accused found a number of prohibited and unregistered firearms, and fourth, the police had found rifles and a locked metal safe at the back of the shed on the premises where he resided with his parents.

50. The respondent acknowledged in submissions that Tolley was factually distinct from the present case.

51. Perhaps a more apposite authority is the decision of the Tribunal in Emery (referred to at [43] above). The applicant in that case, who was seeking review of a decision to revoke his firearms licence, had a son “S” who had suffered major injuries after placing his hand on a train line [3]. At the time of that incident he was reported to be depressed with urges of self-harm. S later amputated his right arm and refused surgery to have it reattached. After that incident, citing concerns for S’s mental health, the Commissioner suspended Mr Emery’s licence and seized his firearm.

52. In that case, the Commissioner contended that the real issue was a risk to public safety, “that is safety to S in the event that he gains access to a firearm and uses it to harm himself”: Emery at [23].

53. After noting that there was no medical evidence about S’s current state of mental health, the Tribunal set out some of its reasoning for affirming the decision as follows:

[37] … There exists a significant unresolved concern about S’s mental health condition.

[38] S carried out very serious and escalating self-harming acts in 2020 and 2021. In doing so, he executed the self-harm in a predetermined manner.

[39] In the absence of any evidence about S’s current condition, the Tribunal cannot rule out a risk that he may seek to use the firearm to self-harm. S knows where the firearm is stored and may know how to access the keys to the sheds and to the safes. While Mr Emery does not believe that his son knows how to access the keys to the sheds and to the safes, there is a possibility that he does and this cannot be ruled out.

[40] While there is no burden on Mr Emery to prove that there is virtually no real and appreciable risk in being granted a firearm licence, the Tribunal has to consider all of the evidence in the exercise of its discretion. This includes the absence of evidence in regard to a real issue the Tribunal must determine.

[41] Mr Emery’s case that the Tribunal must determine whether Mr Emery can exercise continuous and reasonable control over the firearm in the context of his domestic circumstances as the start and end of the case misses the point that the Tribunal must also determine whether or not there is a risk to public safety. The Tribunal must consider the overriding obligation to ensure public safety in accordance with the Act. Taking into account that S lives on the property, knows where the firearm is stored and an absence of evidence about his current medical condition, the Tribunal cannot be satisfied that despite Mr Emery’s security measures which would be sufficient and compliant if there was no safety concern about S are sufficient in this particular case to satisfy the Tribunal that he can exercise continuous and reasonable control over the firearm in the context of his domestic circumstances.

[42] The Tribunal is not satisfied that there is virtually no real and appreciable risk posed to the public safety by the granting or reinstating a firearm licence to Mr Emery….

[43] While S has not used a firearm to self-harm in the past, in the absence of any medical evidence, taking into account the extreme self-harm that occurred less than 15 months ago, the Tribunal cannot be satisfied that S would not consider using a firearm to self-harm.

54. Snow v Commissioner of Police, NSW Police Force [2024] NSWCATAD 214 (Snow) is another case where the issue was a condition imposed because of concerns about a family member rather than the applicant him/herself. There the Tribunal affirmed a decision to impose a special condition of a similar kind to that which was imposed in this case as it was satisfied that the applicant may not be able to exert the requisite control over his firearms because of his domestic circumstances without the condition (cf Firearms Act s 11(4)(a)): see Snow at [38]. There the son had an extensive criminal history and while he did not live with the applicant, he had an open invitation to stay there at any time (Snow at [27]).

55. In this case, bearing in mind the need for there to be “virtually no risk”, the Tribunal finds that the correct and preferable decision is to affirm the decision to place the special condition on the applicant’s firearms licence. In the view of the Tribunal, the condition imposed on the licence is a proportionate response to the identified risk to public safety (see Snow at [38]). The factual matters that lead the Tribunal to this decision are as follows:

1. D is living in the residence with his mother, her partner and his sibling.

2. He has experienced a number of significant losses, including the death of his father and the death (by suicide) of his grandfather. It is uncontested that there were a number of significant incidents involving the police in 2021 that arose from mental health issues that D was experiencing.

3. D has access to the shed, which the applicant uses for the maintenance/cleaning etc of his firearms; and the shed has been a site of incidents of self harm of the type that occurred in 2021;

4. While there are no records of police attendances at the property since 2021, the evidence suggests that there are ongoing issues with D’s mental health.

5. D himself has opined (in his NDIS goals) that he “would like to learn to regulate my emotions so I can remain calm in situations that I find challenging” and his occupational therapist has indicated that she is working with him on “emotional regulation” in collaboration with other supports such as his psychologist.

6. There is no specialist evidence about D’s current mental health, including no report from his current psychologist. While his mother and the applicant both denied that he is experiencing current difficulties, in his discharge report from the child and adolescent mental health service dated 15 March 2023, he was described as having “low mood, anxiety, school refusal and ASD”. Despite reporting his denials, the report referred to risks as including suicide, self-harm; violence; vulnerability/harm from others.

7. Notably, when asked about the reason for resuming weekly psychology sessions in April 2024, P referred to D’s increasing “autism burnout” as a factor.

8. D is still only 15 years old; still living at home with his mother, her partner and his younger sibling and will presumably continue to live in that home for some time.

56. In the context of a statutory regime that has public safety as a core value and which prioritises the public interest over private interest/private convenience (see Firearms Act s 3), the Tribunal is unable to be satisfied that permitting the applicant to keep his firearms at the house in which he lives with P, D and D’s young sibling would not pose a risk to public safety, given his domestic circumstances (see Firearms Act, s 11(4)(a). The applicant’s evidence that he works on the firearms in the shed one or two times a week, coupled with the basis factual issue that to do so, the firearms must come out of the safe in which they are kept, considered against the history of incidents involving D some of which took place in the shed, makes the Tribunal unable to be satisfied that there would be virtually no risk were the decision to be set aside. This is particularly the case given the absence of any specialist contemporaneous evidence from a health practitioner that provides information about D’s current mental state.

Conclusion

57. For the reasons set out above, the Tribunal affirms the decision under review.

Orders

1. The decision under review is affirmed.

2. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the publication of the name of the child D, or any information which could identify the child D, is prohibited.

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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: 01 November 2024