GQJ v Commissioner of Police

[2024] NSWCATAD 285

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GQJ v Commissioner of Police [2024] NSWCATAD 285

Hearing dates:

31 May 2024

Date of orders:

26 September 2024

Decision date:

26 September 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J D Little, Senior Member

Decision:

The Respondent's decision to revoke the Applicant firearms licence is set aside and the licence is reinstated subject to the implementation of a special condition which reads: “The licence holder is prohibited from storing firearms and ammunition at any location where (Name: [insert the Applicant’s husband’s name; DOB: [insert date]) resides or frequents, until the licensee’s licence expires or is renewed, whichever is the later”.

Catchwords:

FIREARMS ACT – firearms – revocation of licence – contrary to the public interest

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Firearms Regulation 2006

Cases Cited:

Keane v Commissioner of Police, New South Wales Police [2008] NSWADT 68

Tannous v Commissioner of Police [2011] NSWADT 116

Category:

Principal judgment

Parties:

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

Representation:

Self-represented (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2024/00019458

Publication restriction:

1. The publication of the Applicant’s name in these reasons is prohibited.
2. Except pursuant to order below, the contents of all paragraphs in these reasons marked “[Not for publication]” are not to be published or released pursuant to s64(1)(c) of the Civil and Administrative Tribunal Act 2013.
3. A copy of these reasons, without redaction, shall be released to the Respondent.

REASONS FOR DECISION

1. This is an application brought by the Applicant seeking review of decisions under the Firearms Act 1996 (the Act) by a delegate of the Commissioner of Police (the Commissioner). The delegate determined to revoke the Applicant's category AB firearm licence.

2. The Applicant also make a costs application if successful in respect of all of her “legal costs” and firearms storage fees.

Background

3. On 6 December 2001, the Applicant's Category H firearms licence was issued.'

4. On 27 December 2006, the Applicant's Category H firearms licence expired.

5. On 25 September 2008, the Applicant lodged an application for a Category AB firearms licence for "Recreational Hunting / Vermin Control".

6. On 10 November 2008, the Firearms Registry issued the Applicant with a Category AB firearms licence although the Applicant contended that at least by December 2008

7. On 22 December 2008, according to the Respondent, a notice of suspension of the Applicant's Category AB firearms licence was served upon the Applicant following a number of domestic violence incidences in July 2008. The Applicant disputes that a notice was served and gives evidence that there was a lack of communication from the NSWPF.

8. On 8 January 2009, the Applicant's Category AB firearms licence was reinstated and the following special condition was applied to firearms licence:

Firearms are not permitted to be possessed or stored at the residence of the licence holder.

9. On 18 March 2009, the Firearms Registry received a letter from the Applicant dated 4 March 2009 requesting the special condition be amended for the following reasons:

1. the special condition is unreasonable as she is not a recreational hunter, she uses her firearms to rid her hobby farm of vermin; and

2. she requires the firearms to be stored at her residential address as it would be a costly exercise and an inconvenience to obtain access to her firearms after hours for spot light shooting.

10. The Applicant requested that the special condition be amended to allow her to store her firearms at her place of residency with a lock to be fitted to her gun safe

11. On 30 July 2009, the special condition imposed on the Applicant's Category AB firearms licence was amended to allow for storage of firearms at the Applicant's residence subject to a keypad lock being installed on the existing safe following conclusion of the internal review.

12. On 21 October 2010, the Applicant re-applied for a Category AB firearms licence for Recreational Hunting / Vermin Control.

13. In the Applicant's 2010 licence application, she checked the box "NO" to the question:

Have you in NSW or elsewhere been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked?

14. On 25 December 2010, the Applicant's Category AB firearms licence was issued.

15. On about 30 August 2014, the Applicant left her service firearm loaded and in her appointments belt in her locker at the Police Station following her shift that day.

16. Because of her conduct on 30 August 2014, the Applicant was subject to an investigation by Inspector Grant Bissett while she was an acting NSW Police Force (NSWPF) officer with the rank of Senior Constable relating to inappropriate storage of her service firearm. The Applicant’s comment as recorded in the memorandum related to that investigation was:

I can only place my actions down to fatigue and over tiredness. In the past 15 years of service, I have never incorrectly stored my firearm. I have not preformed operational policing duties in at least 12 months and I have not preformed night shift duties in many years. The latest shift I preformed in recent years was, until 1:30am.

In saying that, my firearm was holsted, it was stored in a lock locker, it was stored within the confines of a police station and I was the only person who knew of its whereabouts.

17. On 12 September 2014, Inspector Bissett finalised his investigation of the incident on 30 August 2014 and found that the Applicant had inadequately secured her firearm and referred the matter to the Local Area Command.

18. On 21 November 2014, Superintendent Peters determined to that the Applicant was to attend the Constable Development Program and was placed on a Performance Enhancement Plan for a period of three months due to inadequately securing her firearm.

19. On 7 October 2015, the Applicant re-applied for a Category AB firearms licence for Recreational Hunting / Vermin Control.

20. In the Applicant's 2015 licence application, she checked the box "NO" to the question:

Have you in NSW or elsewhere been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked?

21. On 25 December 2015, the Applicant's Category AB firearms licence was issued.

22. On 8 December 2020, the Applicant re-applied for a Category AB firearms licence for Recreational Hunting / Vermin Control.

23. In the Applicant's 2020 licence application, she checked the box "NO" to the question:

Have you in NSW or elsewhere been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked?

24. On 25 December 2020, the Applicant's Category AB firearms licence was issued.

25. On 12 May 2023, a notice of suspension of the Applicant's Category AB firearms licence was served upon the Applicant, citing that it was not in the public interest for the Applicant to continue to hold her Category AB Firearms Licence.

26. On 7 November 2023, the Applicant's firearms licence was revoked due to the Applicant coming to the attention of the NSWPF on a number of occasions following reports of severe domestic violence and alleged abuse or mistreatment of individuals living in the household.

27. On 29 November 2023, the Firearms Registry received a request from the Applicant for internal review of the decision to revoke her firearms licence. The request for internal review was not supported by any specific reasons.

28. On 8 January 2024, the Commissioner's decision to revoke the Applicant's firearms licence was affirmed for the following reasons:

1. concerns for safety of the Applicant's family resulting from the Applicant herself and the Applicant's husband's behaviour;

2. the Applicant's husband was not prohibited from attending the Applicant's residence, merely prohibited from residing there, representing an ongoing risk to public safety; and

3. based on the above, the Applicant was not a fit and proper person to hold a firearms licence.

29. On 16 January 2024, the Applicant lodged an application for administrative review of the decision to revoke her firearms licence with the Tribunal.

Applicant's Traffic History

30. The Applicant received her unrestricted licence in 2000.

31. The Applicant’s history of traffic offences can be summarised as follows:

1. exceeding the speed limit by more than 15km/hr but not more than 30km/n on 29 April 2001;

2. double parking in a school zone on 20 September 2001;

3. exceeding the speed limit by not more than 10km/hr (school zone) on 10 December 2014;

4. exceeding the speed limit by not more than 10km/hr on 16 April 2021;

5. exceeding the speed limit by more than 10km/hr but not more than 20km/hr on 23 January 2022;

6. use mobile phone while operating a motor vehicle on 29 May 2022;

7. exceeding the speed limit by more than 30km/hr but not more than 45km/hr on 30 December 2022; and

8. exceeding the speed limit by more than 10km/hr but not more than 20km/hr on 27 October 2023.

32. The Applicant's traffic record resulted in her licence being suspended between 30 June 2023 and 29 January 2024 for the offences recorded on 16 April 2021, 23 January 2022, 29 May 2022 and 30 December 2022. Additionally the Applicant has been issued with one (1) demerit point warning letter.

33. The Applicant's licence suspension period was reduced to conclude on 29 September 2023, with good behaviour conditions applying from 30 September 2023 to 29 September 2024 inclusive.

34. On 21 February 2024, the Applicant's drivers licence was suspended, with the suspension commencing on 27 March 2024 and due to conclude on 26 November 2024 inclusive.

35. [NOT FOR PUBLICATION]

The Applicant’s domestic circumstances

36. With respect to the Applicant’s husband:

1. On 4 July 2008, NSWPF responded to a domestic violence incident between the Applicant's Husband and the Applicant at their family home.

2. As a result of that incident, NSWPF made an application for an apprehended violence order that was in place between 4 July 2008 to 9 July 2008.

3. The following day (5 July 2008) NSWPF responded to a domestic violence incident between the Applicant's Husband and the Applicant, during which the Applicant's Husband removed his 12 gauge shotgun from the firearms sage, loaded it and discharged 2 rounds into a kennel containing five dogs, wounding three. A further shot was discharged into the side of a shed.

4. On 5 July 2008, the Applicant's Husband was arrested following a report of domestic violence against the Applicant and was charged with "fire firearm in a manner likely to injure" and "cruelty to animals". The Applicant informs the Tribunal that she contacted the NSWPF regarding her husband harming their dogs but did not supply a signed statement.

5. The Applicant's Husband had his three firearms seized and his firearms licence was suspended. The Applicant's Husband has also not been permitted to hold a firearms licence since 2010.

6. On 15 October 2008, the Applicant's Husband was convicted of an offence being to commit an act of cruelty upon an animal and was sentenced with a section 9 good behaviour bond for 12 months, with the following conditions:

1. accept psychiatric or psychological counselling;

2. take medication as prescribed; and

3. attend for counselling, rehabilitation or educational development in accordance with medical advice.

7. On 8 December 2008, the Applicant's Husband was convicted of committing an act of cruelty upon an animal.

8. On 16 April 2023, it is alleged that the Applicant's Husband seriously assaulted the Applicant by punching her and kicking her left shin, resulting in treatment at a nearby hospital over several days. This incident was reported to NSWPF on 2 May 2023, following which the Applicant's four firearms were seized and an Apprehended Violence Order (AVO) was applied for to ensure the Applicant's protection. The Applicant made a statement to the NSWPF.

9. On 3 May 2023, NSWPF officers were present when the Applicant's Husband breached his bail and AVO conditions, leading to him being charged for those offences.

10. On 7 May 2023, a warrant was issued for the arrest of the Applicant's Husband following his breach of bail conditions.

11. On 12 December 2023, the Applicant's Husband was convicted of common assault (domestic violence) and assault occasioning actual bodily harm and was sentenced to a community correction order for 2 years with the following conditions:

1. reporting to Taree COS within 7 days; and

2. referral to domestic violence classes, anger management classes and psychologist by judicial order.

12. Taree Local Court also issued an enforceable AVO for the protection of the Applicant and the Applicant’s children which is due to expire on 12 December 2025. The AVO included a condition that the Applicant's Husband must not reside at the family home.

37. With respect to the Applicant’s children:

1. On 16 August 2013, NSWPF received information that the Applicant's children were regularly left at home unsupervised while the Applicant was at work.

2. [NOT FOR PUBLICATION]

3. [NOT FOR PUBLICATION]

4. [NOT FOR PUBLICATION]

Applicable legislation

38. The underlying principles of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Keane v Commissioner of Police, New South Wales Police [2008] NSWADT 68 at [44] emphasis that strict controls on the possession and use of firearms are imposed for this reason.

39. Section 11(4)(a) of the Act, which 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 the Applicant’s way of living or domestic circumstances.

40. Section 24(2)(a) of the Act, which provides that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind.

41. Section 24(2)(b)(iii) of the Act, which provides that a licence may be revoked if the licensee contravenes any condition of the licence.

42. Section 24(2)(c) of the Act, which provides that a licence may be revoked if the Commissioner is satisfied that the licensee is no longer a fit and proper person to hold a licence.

43. Section 24(2)(d) which provides that a licence may be revoked for any other reason prescribed by the regulations.

44. The clause of the Firearms Regulation 2017 (the Regulation) that is applicable to the present matter is clause 20, which provides that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

Tribunal review

45. The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all material first considered, together with any further relevant material to either confirm the original decision, vary it or set it aside and substitute another.

46. Section 63(1) of the ADR Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. It makes its own decision in place of the Commissioner's, and there is no presumption that the [Commissioner's] decision is correct: McDonald v Director General of Social Security (1984) 1 FCR 354 at 357.

47. 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: Civil and Administrative Tribunal Act 2013, s 38(2) (CAT Act).

The Law

48. The underlying principles of the Act are outlined in section 3. Relevantly they are:

1. to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

2. to improve public safety:

1. by imposing strict controls on the possession and use of firearms, and

2. by promoting the safe and responsible storage and use of firearms.

49. Sub-section 24(2)(a) of the Act provides that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. Sub-section 24(2)(b)(ii) provides that a licence may be revoked if the licensee contravenes any provision of the Act or the Firearms Regulation 2006 (the Regulation), whether or not the licensee has been convicted of an offence for the contravention. Sub-section 24(2)(d) of the Act provides that a licence may be revoked for any other reason prescribed by the Regulations. Clause 20 of the Regulation states that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

Evidence

50. In addition to the oral submissions made on behalf of the Commissioner and the material lodged pursuant to s58(1) of the ADR Act (marked “R1”, “R2” and “R3”), the Commissioner relies upon:

1. Written submissions filed 17 May 2024 and marked “R4”;

51. In addition to the oral submissions made by the Applicant, the Applicant relies on

1. Applicant’s response document with cover email dated 1 May 2024 marked “A1” attaching:

1. Statement of the Applicant dated 30 April 2024

2. Character Reference from Karen Lobb dated 31 March 2024;

3. Character Reference from Rebecca Bruce dated 7 April 2024;

4. Letter from Jennifer Gollan (Relationship Counsellor and Mediator) dated 29 April 2024;

5. Statement of the Applicant’s daughter dated 16 April 2024;

6. Character Reference from Janet Booth, undated; and

7. Email from Department of Communities and Justice dated 29 September 2023 attaching Statement of Outcome.

2. Email entitled “Statement of [the Applicant]” which I treat as the Applicant’s statement dated 1 April 2024 marked “A2”;

3. Written argument of the Applicant beginning with “Dear Senior Member“ marked “A3”; and

4. Email from Ms Janet Booth dated 30 April 2024 marked “A4”.

52. Additionally, the Applicant gave oral evidence at the hearing and was cross-examined. The Applicant’s evidence included (but was not limited to) that:

1. the Applicant alleged that her husband is currently not prohibited from attending and staying at the family home and that her husband works on the property “at least every second day”, will stay for dinner and has stayed the “night once or twice”. The Applicant gave evidence that her husband does not have a permanent alternate residence but stays in a hotel if not staying at the family home.

2. with respect to the imposing of a condition on a firearms licence that they not be present in the residence while her husband was there, the Applicant indicated that this was not her preference and maintained that there was no reason for a condition because, in her words “I have control over the guns”.

53. In respect of the confidential evidence relied upon by the Commissioner, suppression orders were made pursuant to s 59 of the ADR Act and s 64(1)(c) and (d) of the CAT Act with respect to the following evidence which was also relied upon by the Respondent which the Respondent addressed in the closed portion of the hearing in the absence of the public and the Applicant:

1. [NOT FOR PUBLICATION]

2. [NOT FOR PUBLICATION]

Submissions

54. In summary, the Applicant relied on the following submissions:

1. Referred to the fact she

1. had been a police officer for 20 years and was trusted by the State to possess a firearm in this capacity.

2. has held firearms licences for an extended period of time largely without incident (since 1992 including her time in Victoria) supporting that she understands her obligations and abides by them.

2. Challenged factual allegations made by the Respondent and made complaints about the way in which the situation was handled by the the NSWPF and these examples should be enough to “void the respondent’s submissions”, for example:

1. Disputed that social services having been engaged to assist her family;

2. Stated that despite making inquiries of the NSWPF, she was not kept informed of what was happening following the suspension of her firearms licence.

3. Disputed that she became a member of the Sporting Shooters Association of Australia on 13 November 2023 but rather was a member in the “past”.

3. With respect to her traffic history, indicated that:

1. she has held a driver’s licence from 1990 albeit it was a Victorian licence as that it where she grew up. It was in 2000 that was changed over to a New South Welsh licence. It is in that context that the eight traffic infringements should be considered and, according to the Applicant, eight traffic infringements in 34 years “hardly seems extensive”. I do not accept this reasoning as it assumes that there are no offences in Victoria and there is no evidence with respect to the Applicant’s traffic history in any other State other than NSW.

2. “I have never been charged with a driving offence. My last two speeding offences were in our new region where traffic signs are [constantly] changed … caused by excessive rain event”. The Applicant appears to be making a distinction as between a “driving offence” as opposed to a “speeding offence” – In any case, I do not accept that a speeding offence is not a driving offence.

4. With respect to the declarations in her firearm applications in which she declared that she had never had her firearms licence suspended, the evidence and submissions of the Applicant varied and was, at times, difficult to follow:

1. in the Applicant’s written submissions, she stated:

I have NEVER made a false and misleading statement regarding my firearms licence. I Did receive a letter stating my licence was cancelled, suspended etc as I have not committed any offence.

As a result of my husband’s actions in 2008, everyone residing at the property would have been advised that as a matter of protocol everyone’s licence is on hold.

As I previously stated, I queried this and this was not the case.

2. despite giving evidence that she was aware that the NSWPF could not have confiscated her firearms without a suspension, the Applicant was of the belief when filling in application forms that her licence was not suspended because she was not the wrongdoer but the victim of domestic violence. She understood the firearms would need to be removed but did not understand that this meant there was a suspension on her licence or some adverse decision made against her when she was not the perpetrator.

3. the Applicant contends that the registry misinformed her in that she had informed the firearms registry that the firearms had been confiscated but was advised by the registry that this “did not relate to me as I was the victim and had not committed any offences”.

4. it was her view that because the firearms were given back - whatever the situation was it had resolved.

5. she claimed not to recall ever receiving a suspension notice prior to filling in the forms.

6. even if the disclosure was incorrect, the Applicant dismissed any wrongdoing because the firearms registry has access to the computerised operation police system (COPS) so would have known anyway.

5. With respect to the incident involving the Applicant leaving her service firearm loaded and in her belt in her locker at the Police Station - while at times the Applicant indicated that she accepted that she had made a mistake:

1. she was dismissive of any risk given the firearm was in a locker in a police station and because according to her, it was common practice. In this respect, she stated that it was “common [for] a constable to forget to store his/her firearm in the designated area” and characterised the incident as “not a sackable offence” and if it was if it was, we “would lose half the workforce”.

2. the Applicant also drew the Tribunal’s attention to the fact that the incident occurred 10 years ago. In this respect she contended it was “outside the statute of limitations” and irrelevant because it was an “internal matter” dealt with by way of disciplinary actions.

3. denied that the incident could amount of a breach of the Act as police are exempt from holding a licence under the Act.

4. The way the firearm was stored is an acceptable way to store a firearm by the NSWPF in different circumstances but as there was a designated gun safe, the Applicant accepted she was required to use that and not her locker.

6. Regarding her domestic situation:

1. Claimed that the allegations made in 2013 (that her children were regularly left without supervision) were false and made by her former sergeant who had a grievance against her

2. Submitted that despite having been an injured, abused woman who was struggling financially, she persevered and took steps to keep her family together and improve her family relationships which supports that she is a person of good character. This included:

1. Obtaining assistance from her daughter’s school with food vouchers from the school canteen.

2. Speaking with the school councillor to organise sessions for her daughter.

3. Undertaking courses to assist her in her situation and parenting skills and researching a course for her husband to undertake to assist in changing his behaviour.

4. Attending multiple family counselling sessions with her daughter

3. With respect to her husband:

1. Informed the Tribunal that her husband her herself are working at repairing their relationship and relationship with their children.

2. although he has been convicted of domestic violence twice, there are no other criminal matters but, in any case, the Applicant contends that her husband’s conduct in no way reflects on her character.

3. the Applicant described her husband’s rehabilitation as taking “baby steps”. In closing, the Applicant stated she “can’t control [her] husband’s actions”.

7. Contended that her requirement for a firearm is a valid one as her work includes primary production as well as being an active wildlife rescuer for WIRES (which is a charity protecting native wildlife). The Applicant contended that her firearms are always secured and are only accessible to her.

8. Relied upon character references including, but not limited to, from her daughter (who was at the Tribunal for the hearing in support of her mother) and a relationship counsellor and mediator. They variously described the Applicant as:

1. extremely hard working,

2. having a great passion for animals and a generous nature which is reflected in her charity work with WIRES, FAUNA and taking part in the Koala Program organised by her local council,

3. being vigilant with respect to her obligations related to firearms and

4. having an improved and loving relationship with her daughter. The reference from her daughter explained the circumstances related to her daughter speaking to the police and the claims of domestic abuse towards her children. That reference states, in part:

Mum had injuries to her left leg which consisted of cellulitis. My mum was supposed to stay in hospital for a week to receive antibiotics, however as there was no room, she had to get her friends to drive her every day to get injections, and she was on

My brothers and I at this time did not want to do all the house chores that were set doing some and not doing the others as it seemed she wasn't satisfied with the work we did. As a result, Mum would often be in so much pain and so frustrated that she wasn't able to do anything, and we weren't doing our part, she would yell and scream at us and herself. Of course, we could hear what she said. I recorded it, as ! wanted to show her, her behaviour and show her that we didn't want to be told off for helping so instead we stopped helping thinking, if we didn't do anything we couldn't do anything wrong.

During this time we often went without food as Mum couldn't work and I became frustrated as it seemed she wasn't trying to provide for us I was more worried about my younger brother who is small going without food. I became very frustrated as it felt like she didn't care about us so I told my school year adviser what had happened and as she is a mandatory reporter she reported it to the police. I played the officer the recordings as I felt extremely hurt by her words.

However, to be fair, Mum had contacted our school principal, our school counsellor, and my year coordinator ..She had arranged for me to receive lunches from the school canteen as she was unable to go to work and had no money. However, I was too embarrassed to ever use them as I felt judged by other kids.

Looking back on what occurred my brothers and I should have been more understanding more helpful and more supportive of Mum as she was trying her best… During this time Mum sought private counselling sessions … before we did group counselling with her to mend our relationship as well as attending a working with teens course. I have seen major improvements in our relationship and we are both in a better place now.

Mum has been around firearms since she grew up with her grandparents ... When she was 17 She acquired her shooter's license and her first rifle and has always had guns. She was a police officer for 20 years, and she always carried a gun. I've seen Mum hunting and she takes forever to pull the trigger as she says if she can't be 100% it is a fox, she won't pull the trigger in case it's someone's pet or a native animal. Mum never lets us touch any of her guns. I used to think it was because she was protective of her guns but she was protecting us, and she said that we weren't allowed to touch the guns until we did the gun safety course and obtained a license. She only ever used her guns to protect the livestock from foxes as they take our chickens, and lambs and attack native wildlife which Mum and I care very much about. She always has a rescue animal of sorts around trying to help it get better and always pulls over on the road to check Kangaroo pouches for babies before bringing them off the road. Mum's been a WIRES member for about 5 years now.

I feel bad, for showing the police officer the recording of my mum in a traumatic time when she was so overwhelmed and not only impacted the whole family but the safety of our livestock. She was always keeping the property running as that is a form of our income putting food on the table and not being able to walk she was at her wits end with no support and no help from us, I can now understand why she was so frustrated.

I will be supporting my mum on her court date and I'll be present.

9. The Applicant submitted:

This term public interest is an umbrella that’s used so loosely it’s a one size fits all and this is certainly not the case.

55. In summary, the Respondent made the following submissions. The Respondent relies upon the discretionary considerations in s 24 of the Act and specifically :

1. Section 24(2)(a) of the Act (with reference to s 11(4)(a)). In this respect, the Respondent argues that the Applicant would be refused a licence based on her domestic circumstances and that these domestic circumstances support that the Applicant may not personally exercise continuous and responsible control over her firearms. Support for this proposition is said to come from the history of domestic violence of the Applicant and her husband. Emphasis was placed on the fact that the Applicant continues to closely associate with her husband with whom there are serious concerns in regard to the possibility of the Applicant’s accessing the firearms. The Respondent contends that a special condition requiring the Applicant to store firearms at a place other than her residence would alleviate the risks.

2. Section 24(2)(b)(i). In this respect, the Respondent contends that the Applicant provided information that she knew was false and misleading when declaring that her licence had not been revoked in her firearm application forms in 2010, 2015 and 2020.

3. Section 24(2)(b)(iii). In this respect, the Respondent relies on the events in August 2014 and the finding that she had inadequately secured her service weapon while a Senior Constable in the NSWPF which was in non-compliance with the NSWPF Standard. Operating Procedures and this breached the condition that all licensees must comply with the relevant safe keeping and storage requirements under the Act and Regulations. It is argued that given this history, there is a risk that the Applicant may not secure her firearm in the future.

4. Section 24(2)(c). In this respect, the Respondent contends that the evidence supports that the Applicant is not a fit and proper person and relies upon the allegations made against the Applicant including the allegations made by her children. The Respondent contends that the references relied upon by the Applicant should be afforded little weight as it is not clear on their face that the referees are away of the allegations made against the Applicant.

5. Section 24(2)(d) (with reference to clause 20 of the Regulation). In this respect, the Respondent contended the issue of a firearms licence to the Applicant was not in the public interest. The Respondent relied upon:

1. Allegations of domestic violence involving the Applicant’s husband and the fact that the Applicant’s husband is often at the family home and has stayed there from time to time.

2. The Applicant’s history of traffic offences which shows a disregard for public safety and the regulatory regime aimed at ensuring it;

3. The reasons relied upon at paragraph 54(4) related to the allegations against the Applicant made by her children as well as the unsafe storage of her firearm while a police officer and the inaccurate representations on her firearm applications.

Consideration

56. First, dealing with the Respondent’s submissions in respect of sections 24(2)(b)(i), 24(2)(b)(iii) and 24(2)(c), I do not accept that these considerations led to the conclusion that that the correct and preferable decision is to revoke the Applicant’s firearm licence for the following reasons:

57. In respect of s 24(2)(b)(i), while I accept that the information given by the Applicant in her licence applications was false (and for any future applications, the correct answer to an inquiry asking whether the Applicant’s licence has ever been suspended should be “yes”), I do not accept that the Applicant knowingly gave false answers. While her evidence was difficult to follow at times, I accept that this was a result of the Applicant being self-represented and unfamiliar with giving evidence and making submission. Considering her evidence in full, the Applicant evidently correlated a suspension of a licence with a finding of wrongdoing. The circumstances surrounding the suspension was because of domestic violence incidents perpetrated by her husband against her as the victim. The fact that the Applicant was the victim and not the perpetrator was often repeated by her. As such, while she accepted and understood that any firearms would need to be taken from the residence in such circumstances, she did not understand that her firearms licence had been suspended because she was the wronged not the wrongdoer.

58. There is also the controversy with respect to whether the notice of suspension was served. The Applicant was consistent in her evidence that this was not received by her and the production of the notice in isolation does not prove service. I accept that the Applicant states the following in her written statement “I Did receive a letter stating my licence was cancelled, suspended etc” (which only refers to a letter and not the notice) but it is directly followed by “as I have not committed any offence.” I do not find that the first words of this sentence is a concession that the notice was served given the remainder of that sentence. Rather, read in full, it is consistent with my reasoning that the Applicant’s understanding at the time of filling in the forms was that the “suspension” was in respect of her husband’s firearms licence and not hers because in her words “I have not committed any offence”. I therefore find that this discretionary consideration is not applicable because although the declaration was false, it was not knowingly false.

59. In respect of s 24(2)(b)(iii), I accept on the evidence and as submitted by the Respondent, that in August 2014 there was a finding made against the Applicant that she had inadequately secured her service weapon while a Senior Constable in the NSWPF which was in non-compliance with the NSWPF Standard Operating Procedures. I also accept that this breached the condition that all licensees must comply with the relevant safe keeping and storage requirements under the Act and Regulations.

60. I reject the Applicant’s allegation that her conduct in failing to correctly store her firearm is consistent with common practice in the NSWPF. There is no evidence to support this except for the assertion of the Applicant. Conversely, the evidence supports that the NSWPF considered this conduct to be a breach warranting an investigation.

61. I also reject the Applicant’s submission that the Act and the Regulations do not apply with NSWPF because “the police are exempt from holding a licence under the Act”. In this respect, the Applicant appears to be referring to regulation 130 of the Regulation which provides an exemption relating to off-duty police officers. It states:

(1) Any police officer who is in possession of a service firearm while the police officer is not on duty as a police officer is exempt from the requirement under the Act to be authorised by a licence or permit to possess the firearm during any such period.

(2) The exemption under this clause is subject to the police officer complying with such guidelines as may be issued by the Commissioner with respect to the off-duty possession of service firearms by police officers.

(3) In this clause--

"service firearm" means a firearm issued to a police officer in his or her capacity as a police officer.

62. However, the exemption only applies if the police officer complies with such guidelines as may be issued by the Commissioner. It is not in dispute that the Applicant did not comply with such guidelines and specifically with NSWPF Standard Operating Procedures. Therefore, the exemption does not apply.

63. Otherwise, s 6(2)(a) of the Act states:

(2) A person is not guilty of an offence under this Act or the regulations only because of something done by the person while acting in the ordinary course of the person's duties--

(a) as a police officer (or as a student police officer enrolled in the New South Wales Police Academy) …

64. However, this does not provide an exemption to compliance – rather it provides that a police officer would not be guilty of an “offence” if a breach occurred. For 24(2)(b)(iii) to be enlivened, proof of an “offence” is not required. Rather, the section only requires a contravention of the Act or the regulations. I therefore find that this is a valid consideration for the purposes of considering whether the correct and preferable decision is the revocation of the Applicant’s licence.

65. However, while I accept that it is a valid consideration, I do not accept that it is sufficient to draw the conclusion that there is a real risk that the Applicant may not secure her firearm in the future because the circumstances of August 2014 need to be viewed in context. While the Applicant acted inconsistently with her safe storage obligations at that time, this was on one occasion some ten years ago. Otherwise, there is no evidence that this occurred prior to this time or following and this is despite the Applicant having been licenced in New South Wales as early as 6 December 2001, according to the Applicant having been licenced in Victoria prior to this and having served her State as a police officer.

64. Regarding s 24(2)(c), I do not accept that the evidence supports that the Applicant is not a fit and proper person. In this respect, the Respondent relied upon the allegations made against the Applicant including the allegations made by her daughter and contended that the references relied upon by the Applicant should be afforded little weight as it is not clear on their face that the referees are away of the allegations made against the Applicant. I do not accept that it is correct that the references of the Applicant’s daughter (and her counsellor) ought to be given little weight because it is evident (both by way of context as well as the substance of those references) that those individuals knew of the allegations made as against the Applicant. In the case of the Applicant’s daughter, she knew the allegations as she had made the allegations to the police. I accept, as communicated by the Applicant’s daughter that the circumstances leading to the Applicant’s daughter speaking to police were exceptional and a particularly difficult period for the Applicant and otherwise, the evidence supports that the Applicant is a hardworking person who is community minded and has gone to great lengths to protect her family.

65. That leaves the Respondent’s contentions reliant on sections 24(2)(a) and 24(2)(d) of the Act. While I accept, as submitted by the Respondent, that a history of traffic offences may, in the appropriate circumstances, show a disregard for public safety and the regulatory regime aimed at ensuring public safety (Tannous v Commissioner of Police [2011] NSWADT 116 at [32]), I do not think the Applicant’s traffic offences in this case rise high enough to draw that conclusion.

66. However, the Applicant’s domestic circumstances and specifically her association with her husband require consideration. The criminal history of the Applicant’s husband involves a number of AVO’s that have been made against him, together with charges of actual bodily harm, domestic violence and cruelty to animals. According to the evidence, the Applicant’s husband is not prohibited from attending the family residence but is prohibited from residing there. According to the Applicant, however, her husband is allowed to stay the night and as such, the Applicant’s husband frequents the residence “at least every second day”, will stay for dinner and has stayed the “night once or twice”. In acknowledging the Applicant’s evidence that the Applicant’s husband has stayed the night at the residence, this Tribunal is not affirming the Applicant’s submission that this is allowable pursuant to orders made; rather I have accepted the frequency of visits as fact for the purposes of this decision.

67. Given the Applicant husband’s criminal history including violence with a firearm, even in the context of the Applicant’s evidence of baby steps towards rehabilitation, I accept the Respondent’s submission that there is a general concern in the community about firearms in homes and the potential for domestic violence incidents to involve firearms. I accept, given the evidence, that I cannot be satisfied that there is no risk to public safety if the Applicant were issued with a firearms licence given her close association with her husband who frequents the family home. As stated by the Applicant herself during closing submissions, she cannot control the actions of her husband.

68. However, I do not accept the Respondent’s submission that this risk cannot be managed with the imposition of a condition that provides that firearms cannot be stored or otherwise at the family residence when the Applicant’s husband is at that property. While the Applicant indicted that such a condition would cause inconvenience, given that her evidence is that the Applicant’s husband has only stayed once or twice overnight at the residence (meaning it is a rarity) and that the predators (such as foxes and dogs) hunt mostly at night, this will provide the Applicant with the opportunity of protecting her animals during this time while simultaneously eradicating the risk to the public safety identified by this Tribunal. To the extent that the Applicant wishes for her husband to otherwise frequent the residence, she will need to arrange to safely transport and store the firearms off that property with such transportation and storage being in compliance with her obligations pursuant to the Act and Regulations. In all the circumstances, this is the correct an preferable decision and I make the orders below.

Costs

71. The Applicant, in her written submissions, make application for compensation in the amount of “legal costs” and costs associated with storage of their firearms.

72. The jurisdiction of the Tribunal to award costs is derived from s 60 of the CAT Act however, this is limited to “costs” as defined. “Costs” are defined as:

“(a) the costs of, or incidental to, proceedings in the Tribunal, and

(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.”

73. First, with respect to legal costs the Applicant claims that she has paid she “has paid a solicitor thousands of dollars to assist her and unfortunately I was not able to pay the $18,000 quoted to represent me”. However, for the totality of these proceedings, the Applicant has been self-represented (noting that the application initiating these proceedings is by the Applicant with no notice of representation ever been filed). Whatever has been paid to a solicitor, they cannot be in respect of these proceedings because the Applicant has, at all time, represented herself.

74. Secondly, storage costs do not fall within the definition of “costs” for the purposes of s60 as they are not costs of or incidental to these proceedings before the Tribunal nor costs of or incidental to the application before the Respondent.

75. Even if that was incorrect, the basis of the alleged entitlement according to the Applicants is because of the financial strain she is under. I do not accept that this satisfies the test of special circumstances pursuant to s60(2) of the CAT Act which would justify an award of costs especially in circumstances where any such strain is not as a result of legal costs given the Applicant was self-represented.

Anonymisation

76. The factual findings contained in this decision disclose allegations relating to the domestic history of non-parties including that of the Applicant’s children. The information is of a personal and highly sensitive nature. Irrespective of the fact that the Applicant’s husband’s name and the name of the Applicant’s children is not expressly disclosed in this Decision, the identification of the Applicant would allow identification of those non-parties given their relationship with the Applicant and make the personal and highly sensitive information publicly available. This outcome should be avoided, and those non-parties protected. Accordingly, I find that the name of the Applicant should be anonymised pursuant to s64(1)(a) of the CAT Act

Orders

77. I make the following orders:

1. The Respondent's decision to revoke the Applicant firearms licence is set aside and the licence is reinstated subject to the implementation of a special condition which reads: “The licence holder is prohibited from storing firearms and ammunition at any location where (Name: [insert the Applicant’s husband’s name; DOB: [insert date]) resides or frequents, until the licensee’s licence expires or is renewed, whichever is the later”.

2. The publication of the Applicant’s name in these reasons is prohibited.

3. Except pursuant to order below, the contents of all paragraphs in these reasons marked “[Not for publication]” are not to be published or released pursuant to s64(1)(c) of the Civil and Administrative Tribunal Act 2013.

4. A copy of these reasons, without redaction, shall be released to the Respondent.

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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: 26 September 2024