GSV v Commissioner of Police, NSW Police Force

[2025] NSWCATAD 80

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GSV v Commissioner of Police, NSW Police Force [2025] NSWCATAD 80

Hearing dates:

11 November 2024

Date of orders:

04 April 2025

Decision date:

04 April 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

The decision to revoke to revoke the Applicant’s Category AB firearms licence is affirmed.

Catchwords:

Administrative Law – firearms licensing – licence revocation – public interest – risk.

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Firearms Act 1996

Firearms Regulation 2017

Cases Cited:

BSR v Office of the Children’s Guardian [2015] NSWCATAD 264

Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657

Constantin v Commissioner of Police [2013] NSWADTAP 16

Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50

Keane v Commissioner of Police, NSW Police [2008] NSWADT 68

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

Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206

Meacham v Commissioner of Police [2020] NSWCATAP 107

Ward v Commissioner of Police [2000] NSWADT 28

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

Category:

Principal judgment

Parties:

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

Representation:

Solicitors:
Applicant self represented (Applicant)
Hall & Wilcox (Respondent)

File Number(s):

2024/00297669

Publication restriction:

Section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 applies in relation to the identity of the Applicant.

Reasons for Decision

Introduction

1. In these reasons the names of private individuals have been anonymised so as to preserve the privacy of their personal affairs. The Applicant is referred to as GSV. The names of others are omitted where their identification might reveal the identity of the Applicant.

2. Section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 applies in relation to the identity of the Applicant.

3. This is an application by GSV (“the Applicant”) for review of a decision by a delegate of the Commissioner of Police, NSW Police Force (“the Respondent”) under the Firearms Act 1996 (“the Act”). The Respondent determined to revoke the Applicant’s Category AB firearms licence under section 24(2) of the Act.

Background

4. The Applicant has held a Category AB firearms licence since June 2017. He held the licence for the genuine reason of sport/target shooting and recreational hunting/vermin control. The licence was renewed in 2022.

5. In January 2024, police attended the Applicant's residence to complete a routine safe inspection. During the inspection the police officers located two firearms on the floor under a bed. The firearms were seized, and the Applicant's licence was suspended.

6. The grounds for the suspension were: 'Not in the public interest; and 'Not store Firearm correctly'.

7. In May 2024 the Applicant's firearms licence was revoked on the basis that the Applicant had breached the safe storage requirements and his lack of awareness of his obligations as a firearms licence holder. The decision to revoke the licence was affirmed on internal review.

8. The Applicant has applied to the Tribunal for external review of the decision to revoke the licence.

Issues

9. The Tribunal is to determine whether the correct and preferable decision is to revoke the Applicant’s firearms licence.

10. This determination requires consideration of whether it would be contrary to the public interest for the Applicant to hold a firearms licence.

Legislation

The role of the Tribunal

11. Section 9 of the Administrative Decisions Review Act 1997 (“the ADR Act,”) provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. This application is made under section 75 of the Act and the ADR Act. The Tribunal has jurisdiction in regard to a number of firearms licensing issues. The Tribunal’s jurisdiction includes review of a decision by the Respondent to revoke a firearms licence.

12. Section 63 of the ADR Act provides that in determining an application, the Tribunal is to determine what is the "correct and preferable decision" having regard to the material before it. In reaching the correct and preferable decision, the Tribunal may:

1. exercise all of the functions that are conferred or imposed by the Act on the Respondent; and

2. affirm the decision, vary the decision, set aside the decision, and make a decision in substitution of the decision, or set aside the decision and remit the matter for reconsideration by the Respondent.

13. There is no formal onus of proof. In considering the Application, the Tribunal may have regard to any relevant material before it at the time of its review. Its consideration is not limited to material that was before the Respondent at the time it made the decision which is under review.

14. The Tribunal is to make its own decision and there is no presumption that the Respondent's decision is correct. The Tribunal should consider all relevant materials and ignore all irrelevant materials.

15. The requirements for proof of questions of fact in administrative review proceedings generally were summarised by an Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at paragraphs [54] and [83]:

“[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.

…

[83] 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. As noted above, the Tribunal is required to base its findings of fact on “logically probative material”: Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17].”

16. As Principal Member Britton observed in BSR v Office of the Children’s Guardian [2015] NSWCATAD 264 at paragraph [17]:

… a practical or "forensic" burden can arise from the material presented. A party who asserts a fact has a responsibility to prove that fact: Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303; Holbrook and Australian Postal Commission (1983) 5 ALN N46.

17. In determining the review, the Tribunal, must exercise its discretion in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at paragraph [23].

18. The underlying principles of the Act are, relevantly:

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

2. to improve public safety by imposing strict controls on the possession and use of firearms and by promoting the safe and responsible storage and use of firearms.

19. The underlying principles set out in section 3(1) of the Act 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: Keane v Commissioner of Police, NSW Police [2008] NSWADT 68 at paragraph [44].

20. Section 11 of the Act provides:

11 General restrictions on issue of licences

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

…

1. 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.

   21. Section 12 of the Act provides:

2. The Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm.

   22. Section 19 of the Act provides for the imposition of conditions on a licence:

19 Conditions of licence

1. A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.

2. Without limiting subsection (1), each licence is subject to the following conditions--

(a) the licensee must comply with the relevant safe keeping and storage requirements under this Act,

…

23. Section 24 of the Act provides:

24 Revocation of licence

...

1. A licence may be revoked—

(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or

…

(d) for any other reason prescribed by the regulations.

24. Section 39(1) of the Act requires:

1. General requirement

2. A person who possesses a firearm must take all reasonable precautions to ensure-

(a)    its safe keeping, and

(b)    that it is not stolen or lost, and

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

25. Section 40 of the Act specifies:

1. Category A and category B licence requirements

2. 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,

(b)    if such a receptacle weighs less than 150 kilograms when empty, it must be fixed in order to prevent its easy removal,

(c)    the locks of such a receptacle must be of solid metal and be of a type approved by the Commissioner,

(d)    any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the receptacle containing any such firearm,

(e)    such other requirements relating to security and safe storage as may be prescribed by the regulations.

...

26. Clause 20 of the Firearms Regulation 2017 (“the Regulations”) provides:

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.

27. Clauses 29 and 31 of the Regulations provide:

1. Sport/target shooting

A licence that is issued for the genuine reason of sport/target shooting is subject to the following conditions (in addition to any other conditions to which the licence is subject)—

(a)   the licensee must comply with any applicable requirements of Part 10 (Participation requirements for club members),

(b)   the licence does not authorise the use of a firearm except at a shooting range approved under Part 8.

1. Recreational hunting/vermin control—approved hunting clubs

A licence that is issued for the genuine reason of recreational hunting/vermin control is subject to the condition that the licensee must comply with any applicable requirements of Part 10 (Participation requirements for club members).

…

28. Clause 107 of the Regulations provides:

107 Participation requirements for sport/target shooters (other than pistol shooters)

The holder of a licence issued for the genuine reason of sport/target shooting (not being a category H licence) must be a member of at least one approved shooting club (other than a pistol club) and must, during each compliance period for such a club of which the person is a member, participate in not less than 4 shooting activities of an approved shooting club (other than a pistol club) whether or not of a club of which the person is a member.:

29. Clause 108 of the Regulations provides:

1. Participation requirements for member of approved hunting club

2. The holder of a licence issued for the genuine reason of recreational hunting/vermin control to a member of an approved hunting club must be a member of at least one approved hunting club and must, during each compliance period for such a club of which the person is a member, participate in no less than 2 hunting club events.

3. This clause applies only where membership of an approved hunting club is the sole ground on which the licensee has established the genuine reason of recreational hunting/vermin control.

4. In this clause-

hunting club event means any event approved by any approved hunting club (whether or not a club of which the licensee is a member) involving hunting, shooting or firearms safety training.

30. Clause 105 of the Regulations provides:

compliance period for an approved club means each consecutive 12-month period that starts on the day of the year that the club has determined to be the start of its compliance period for the purposes of participation by club members.

The public interest

31. The Respondent contends that it is not in the public interest for the Applicant to continue to hold the licence.

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

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

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

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

34. In Cusumano v Commissioner of Police at paragraph [23] Deputy President Hennessy stated:

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

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

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

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

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

37. The question of risk is not, however, to be approached in an absolute or mechanistic way, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at paragraphs [64] – [66].

38. In determining this issue, 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: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at paragraph [32].

Material before the Tribunal.

39. The Respondent relies on a bundle of documents provided pursuant to section 58 of the ADR Act. The bundle contains records held in relation to the Applicant’s licence and includes an Event record from the Respondent’s electronic database (“COPS”) which set out details of the interaction with the Applicant when the police carried out the routine safe inspection in January 2024. The Respondent also relies on a bundle of records which relate to the Applicant’s compliance with the licence conditions.

40. The Respondent's solicitors also provided written submissions.

41. The Applicant relies on his own evidence. He provided written submissions and attached a series of photographs. He attended the hearing, gave evidence and was cross-examined.

The Respondent’s case.

42. The Respondent submits that the Applicant's firearms licence was subject to a condition that required him to comply with the safe keeping requirements under Part 4 of the Act. The COPS event report stated:

“licensing police attended to complete a routine safe inspection on the holder. When police arrived the holder happily walked police into the second bedroom of the home.

Police asked where was the safe, to which the holder responded "I moved the bed out when I need them". Police asked the holder to stand back and moved the bed, where the 2 firearms were sitting in their bags on the floor.

Police again questioned the holder as to why he didn’t have a safe and he explained he didn’t believe he needed one and it wasn’t a requirement and they are safe where they are. Police explained its highly unsafe to store firearms in the home. If a child or any other person were to find them this would be a major issue. ... police have decided to suspend the holders firearms licence ...

Police do not believe that the holder is a fit and proper person, as he acquired his licence in 2017 he would have been explained to about the requirements of a safe storage of his firearms, however he is of the belief no person ever instructed him.

… police have decided not to issue the holder with infringement notices, however will make strong recommendation to the Firearms Registry for the holder to not have his licence reinstated.”

43. The Respondent submits that the event report indicates that the Applicant stored two firearms in their bags on the floor underneath a bed and not in a locked receptacle as required by section 40(1) of the Act. The Respondent contends that the storage of firearms unsecured underneath a bed is not consistent with the duty to take all reasonable precautions to ensure safekeeping of the firearms.

44. The Respondent notes that the Applicant concedes that he breached the safe keeping requirements. Therefore, it follows that he contravened both the Act and a condition of his licence. In the Respondent's submission the discretion to revoke the Applicant's licence under section of the Act should be exercised.

45. The Respondent argues that the evidence shows that the Applicant failed to comply with the safe keeping requirements for some six and a half years when he had an obligation to take all reasonable precautions to ensure the firearms were kept safely. When questioned, the Applicant indicated that he didn't believe he needed to store his firearms in a safe and that they were safe where they were. The Respondent referred to a number of claims that the Applicant had made, including:

• that he was fully aware of the responsibility that firearms must be stored securely to ensure the safety of the public;

• various 'urgent and unforeseen' circumstances led to his 'accidental breach of the safe keeping requirements;

• despite completing firearms training in 2017 and being advised to keep firearms in a safe place, he was not provided any 'detailed information' such as location to meet the firearm safekeeping requirement; and

• he did not believe it was a requirement to have a safe.

46. The Respondent argues that these claims cannot be accepted because, in his firearms licence application in 2017, the Applicant declared that he fully understood and could comply with the firearms safekeeping requirements. The Respondent further argues that, in any event, if the Applicant did not possess such 'detailed information' about meeting the safe keeping requirements, it is unclear why he signed that declaration or otherwise did not take steps over the six-year period to ensure he understood his obligations as a firearms holder.

47. In the Respondent's submission, the safe keeping requirements go to the crux of the principles and objectives of the Act. It is not a matter for a firearms licence holder to decide when it is safe to ignore firearm safe storage legislation. Parliament did not leave the matter of the manner in which firearms are to be stored to the discretion of licence holders but instead elected to impose detailed and prescriptive requirements on all licence holders.

48. The Respondent argues that the Applicant has put the public's safety at risk by not storing his firearms in accordance with legislative requirements and an unsecured firearm poses an obvious danger to the public if it were to fall in the possession of someone who wished to cause harm.

49. It is not in dispute that the Applicant’s genuine reasons for holding a firearms licence were target shooting (member of an approved shooting club) and recreational hunting (member of an approved hunting club).

50. The Respondent notes that the Applicant provided a copy of his membership card with Hunters and Fishermen Association of NSW which had an expiry date of 1 April 2024. The Respondent relies on notification from the Association’s President who advised that the Applicant had zero attendances for the year 2023/24 and otherwise had one attendance each year.

51. The Respondent submits that the failure to satisfy the applicable participation requirements is a further ground for the revocation of the Applicant's firearms licence.

52. For these reasons, the Respondent contends that the correct and preferrable decision is for the decision to revoke the Applicant's firearms licence to be affirmed.

The Applicant’s case.

53. The Applicant provided evidence in regard to his background and explained his interest in having access to firearms. As noted above, the Applicant’s identity has been withheld to preserve his personal affairs. Those affairs include his background and in particular his involvement as a student activist.

54. In his material before the Tribunal he stated:

“The reason I possess a gun is because I have always an interest in owning a farm that I can plant and grow many avocado trees and raise chickens. I have started planting avocado in my front and back yard and started searching around for a suitable farm.”

55. He explained that he intends to buy a farm in the future and that he would then wish to use firearms on the farm.

56. The Applicant does not dispute that he stored his firearms under the bed or that he did not possess a firearms safe at the time of the inspection. He agreed that he had been storing his firearms under a bed since 2017. However, he maintained that he was not aware of the need to store his firearms in a safe storage arrangement.

57. In his evidence before the Tribunal he said that nobody told him of the safe storage requirements when he purchased his firearms in 2017. He said that police had given him a copy of a policy which he said was released in July 2021 which alerted him to the requirement of a gun safe. He maintains that the 2021 policy was different to the policy in place in 2017 and that he had complied with the 2017 requirements.

58. He has now taken steps to address the need for compliance with those requirements, including purchase of a safe. This was purchased the day after the January 2024 inspection. He agreed that the safe is not properly secured. However, he said that if he is successful in getting his licence reinstated, he will get it fixed. If not, he will return it to the shop.

59. He also made a comparison between the requirements under the Act and those that exist in the USA. He said that he supports the requirements imposed by the Act.

60. With respect to the issue of whether he has complied with the participation requirements for club members, he stated that he had joined a club that is very close to his home. He walks past the club every day and he often attends the club on Tuesdays to eat and drink. He said that he has participated in club activities but his opportunities to participate have been limited because of his obligations in relation to caring for his elderly mother and because he had suffered a knee injury. He has made inquiries with the club about participating in an event to shoot wild pigs.

61. He suggested that the club’s record keeping is not accurate. He said that initially he attended monthly shoots. He said that he attended shooting events but never went hunting. The frequency was less in 2018 – 2019 and then it was less because of the Covid pandemic.

62. The Applicant agreed that in 2017 he had declared that he fully understood and could comply with the firearms safekeeping requirements. However, he stated that his understanding of the English language is poor and that he had assistance in completing the form from someone at the store where he purchased his firearms. He had asked questions about his obligations and thought that he understood the requirements of the Act. He had assistance from his wife in preparation of correspondence with the Respondent and the Tribunal but that she only gave him an overview of the contents of the correspondence.

63. He said that since 2017 he has asked the club to provide him with information in his own language, but he has never received any assistance. He said that he was not aware of the existence of the Firearms Registry or that they might be able to provide him with assistance.

64. He stated that he now has a full understanding of the requirements of the Act and that he is able to comply with his obligations and that the licence should be reinstated.

Discussion

65. There are numerous decisions of this Tribunal that have considered the need for compliance with the safety requirements under the Act. The community’s interests take precedence over the private interests of an individual. Section 3 of the Act emphasises that firearms possession and use is a privilege conditional on the overriding need to ensure public safety. The Applicant's firearms licence was subject to a condition that required him to comply with the safe keeping requirements.

66. I accept that the Applicant may have been at a disadvantage in understanding his obligations because of his limited understanding of the English language. However, if his evidence is accepted, he attends a club on a weekly basis. It is difficult to understand how he could have failed to become aware of the focus of the Act on firearms safety.

67. In my view the Applicant's attitude towards compliance with legislative requirements has been concerning. He has shown disregard for the laws related to the firearms safety. This continued from 2017 until police attended his residence for a routine inspection in January 2024. If that inspection had not taken place it is likely that he would have continued to store his firearms under a bed.

68. The Applicant has also failed to demonstrate any insight into the seriousness of his non-compliance. I agree with the Respondent that he has not demonstrated a genuine understanding of the importance of safe storage. In these circumstances I could not be satisfied that he will be able to comply with the safe storage requirements in the future.

69. I also agree that the Applicant has put the public's safety at risk because an unsecured firearm poses an obvious danger if it were to fall in the possession of someone who wished to cause harm.

70. Further, in order to comply with the conditions of his firearms licence the Applicant was required to be a member of an approved shooting club and participate in not less than four shooting activities each year. He was also required to be a member of an approved hunting club and participate in no less than two hunting club events.

71. The Applicant has referred to his regular attendance at his club, however it appears that his attendance is related to dining rather than shooting activities. He has not presented any evidence to contradict the Respondent’s evidence which suggests that he failed to meet the participation requirements.

72. I accept that he had obligations in regard to care for his elderly mother and that this might have impacted on his ability to meet the participation requirements. However, it is by no means clear that those obligations would have prevented him from participating in 4 shooting activities each year.

73. I am satisfied that the Applicant has contravened the conditions of his firearms licence and the strict requirements of the firearms licensing scheme over an extended period of time. His conduct indicates that he does not have the necessary understanding of his obligations, and the requirements and conditions associated with the possession of his firearms licence. I am not satisfied that it is in the public interest that he is able to hold a firearms licence at this time.

74. On the material before me I am satisfied that the decision to revoke the Applicant’s licence was the correct and preferable one.

Order

The decision to revoke to revoke the Applicant’s Category AB firearms licence is affirmed.

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

Registrar

Decision last updated: 04 April 2025