Hawker v Commissioner of Police

[2022] NSWCATAD 91

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Hawker v Commissioner of Police [2022] NSWCATAD 91

Hearing dates:

4 March 2022

Date of orders:

16 March 2022

Decision date:

16 March 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S E Frost, Senior Member

Decision:

(1) The decision to revoke the Applicant’s firearms licence is set aside.

(2) Instead the Tribunal decides the licence is not revoked.

Catchwords:

FIREARMS LICENSING – undertakings made to the Court on former partner’s discontinuation of an application for a family violence order – public interest

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Family Violence Act 2016 (ACT)

Firearms Act 1996 (NSW)

Firearms Regulation 2017 (NSW)

Cases Cited:

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Category:

Principal judgment

Parties:

Martin Edward Hawker (Applicant)
Commissioner of Police (Respondent)

Representation:

Hartmann & Associates Solicitors (Applicant)
Office of General Counsel, NSW Police Force (Respondent)

File Number(s):

2022/00007578

Publication restriction:

Under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal orders that the disclosure, to any person other than a party to this proceeding and their legal representatives, of:

(a) the name and/or address of the Applicant’s ex-partner, referred to in these reasons as ‘M’;

(b) the name of the Applicant’s son;

(c) any information that may disclose either of the matters in (a) and (b),

is prohibited.

Reasons for decision

Introduction

1. Mr Hawker, the applicant in this matter, has had a firearms licence since his late teens. He is now 32 years old.

2. In December 2021 a delegate of the respondent Commissioner decided to revoke Mr Hawker’s firearms licence on public interest grounds. Mr Hawker has applied to the Tribunal for an administrative review of that decision.

3. Mr Hawker is currently in Queensland, on a hunting trip that was organised well in advance. With his licence revoked he is not able to do any hunting. In the circumstances the Tribunal ordered the application to proceed in the absence of an internal review, and set the matter down for an expedited hearing. The hearing was held on 4 March 2022 by telephone, with an assurance given to both parties that a decision would be made and communicated to them as quickly as possible.

4. I have decided to set aside the revocation decision. My reasons follow.

Jurisdiction

5. The Tribunal has jurisdiction to undertake the administrative review of the Commissioner’s revocation decision: s 9(1) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and s 75(1)(c) of the Firearms Act 1996 (NSW).

6. Subsection 63(1) of the ADR Act provides that in determining the application, the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it.

The firearms legislation

7. Firearms licences are issued by the Commissioner under the Firearms Act, but they can only be issued if, among other things, 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: s 11(3)(a).

8. There are some circumstances in which the Commissioner must refuse to issue a licence to an applicant. One of these mandatory refusal grounds is where the applicant ‘is subject to an apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to such an order (other than an order that has been revoked)’: s 11(5)(c).

9. There are also circumstances in which the Commissioner may refuse to issue a licence; one such discretionary refusal ground is ‘if the Commissioner considers that issue of the licence would be contrary to the public interest’: s 11(7).

10. Once a licence has been issued, there are circumstances in which the Commissioner may revoke it. These include ‘for any reason for which the licensee would be required to be refused a licence of the same kind’ (s 24(2)(a)) and ‘for any other reason prescribed by the regulations’ (s 24(2)(d)).

11. It is then necessary to consult the Firearms Regulation 2017 (NSW) to see what reasons, if any, are prescribed. One such reason – and indeed, the one relied on in this case – is specified in clause 20: ‘if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence’.

12. This case therefore boils down to two precise questions:

1. Is the Tribunal, standing in the shoes of the Commissioner, satisfied that it is not in the public interest for Mr Hawker to continue to hold the licence?

2. If the answer to that is yes – should the discretion to revoke the licence be exercised?

What triggered the licence revocation?

13. On 14 September 2021 Mr Hawker’s ex-partner, who is the mother of their 11-year-old son and who lives in Canberra, called police operations on 131444 to report an incident that occurred the previous day. (There is no need for me to disclose the identity of the ex-partner so I will refer to her simply as ‘M’.) According to the document obtained from the Australian Federal Police (AFP), and tendered as Exhibit R2:

[M] was directed to call police operations by DVCS.

DVCS said she needed to make a report to police about yesterdays incident.

[M] states her ex-partner attended her residence last night and yelled abuse for two hours. No threats were made, no assault occurred and no property damage sustained. [M] felt highly intimidated.

[M] was told that if her ex-partner attends the location again she needs to contact police on 000. …

[M] is currently working with DVCS to apply for a FVO.

14. I infer ‘DVCS’ is the Domestic Violence Crisis Service, and that an ‘FVO’ is a family violence order under the Family Violence Act 2016 (ACT) (the ACT statute).

15. On 16 September 2021 M applied to the ACT Magistrates Court for an FVO, and an interim order was made on that day (Ex R1, p 22).

16. About a week later NSW Police served the interim order on Mr Hawker and ‘as a consequence’ (Ex R1, p 26) seized all his firearms.

17. No final FVO was ever made because the application was mediated and ultimately discontinued. The interim order was discharged on 8 December 2021 with Mr Hawker making several undertakings to the Court, including undertakings (Ex R1, pp 22-3):

• Not to be on M’s residential premises (with some limited exceptions)

• Not to be at her work location

• Not to be within 50 metres of M (with some limited exceptions)

• Not to locate or attempt to locate M

• Not to contact M except through a legal practitioner or in other limited circumstances

• Not to engage in behaviour that constitutes family violence towards M and exposing the son to family violence

18. The undertakings continue for a period of 24 months from 8 December 2021.

19. On 14 December 2021 Mr Hawker provided a local NSW police officer with proof of the discontinuation of the FVO application and the discharge of the interim order, and requested the return of his firearms. That request was referred to the Firearms Registry, which ‘determined to revoke Mr HAWKER’S firearms licence based on the undertakings made to the court and subsequent concerns regarding public safety.’

20. The formal revocation notice is dated 20 December 2021. It was served on Mr Hawker when he attended Yass Police Station a week later (Ex R1, p26). The delegate explained as follows (Ex R1, pp 42-3; emphasis in the original):

I advise the principles and objectives of the Firearms Act 1996 (the Act) are to confirm that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety by imposing strict controls on the possession and use of firearms. Inherent in the licensing requirements is that persons who have access to firearms must act responsibly and in accordance with the legislation.

While it is noted that you are not currently subject to an AVO [Apprehended Violence Order] as described in Clause 143 of the Firearms Regulation 2017, the undertakings made to the Court on 8 December 2021 replace the conditions of the Interim AVO made on 16 September 2021 and were agreed upon by both parties in good faith. While undertakings do not have the same force as orders made by the Court, the intention of the parties remains unchanged and the Court must give significant weight to any breach of those undertakings to ensure that the objectives of the family and domestic violence legislation are preserved.

In circumstances where the Court has deemed it appropriate to make an interim AVO in the first instance and subsequently accepted your undertaking to continue to be bound by a number of terms in place of that AVO, the Registry is satisfied that the objective of those undertakings is aligned with the overriding objective of the Act, which is to ensure public safety.

Based on the fact your conduct is currently regulated by undertakings, or promises to the Court, I am satisfied on the balance of probabilities that in the absence of those undertakings, a final AVO would be in place. Therefore, I am satisfied that it would not be in the public interest for you to remain authorised for firearms. Accordingly, I have determined to revoke your category AB firearms licence.

The Commissioner’s current position

21. The Commissioner submits there are three factors in this matter which, taken together, support the revocation of Mr Hawker’s firearms licence in the public interest. They are:

1. The undertakings Mr Hawker has made to the Court;

2. The fact that Mr Hawker has agreed to ‘enrol, participate in and complete an anger management course or counselling with EveryMan’, as reflected in a Parenting Plan agreed with M on 1 November 2021;

3. An incident that occurred at Mr Hawker’s residence on 16 May 2020.

22. The ‘incident’ just referred to is documented at pages 30-40 of Ex R1. It is described as a domestic violence incident, with Mr Hawker recorded as the victim and his current partner as the POI (which I infer means ‘person of interest’). Two other people were visiting the residence at the time, and one of them is described in the report as ‘highly intoxicated’. It is recorded that the partner was ‘well affected by alcohol’ (there is no similar comment about Mr Hawker), that she ‘suffers from depression’ and that the original 000 call was made ‘due to the POI having a mental health episode’. She was taken, voluntarily, to Yass Hospital by ambulance for a mental health assessment.

23. Mr Hawker sustained a small cut on his lip during a ‘small tussle’ with his partner. According to the report he ‘refused to provide police with a statement or allow photographs of his lip to be taken’. In accordance with standard procedure, Mr Hawker’s firearms – apparently safely stored in the shed – were seized ‘as per 28 day cooling off period’, and Mr Hawker is recorded as being ‘very cooperative and understanding of police action’. The firearms were returned to Mr Hawker on 19 June 2020.

Mr Hawker’s evidence

24. Mr Hawker describes himself as ‘passionate’ about hunting. Over the years he has spent tens of thousands of dollars on rifles and hunting equipment. He has a cool room, bandsaw and dehydrator that he uses to harvest the meat for his family and friends. He estimates half of his family’s meat requirements are satisfied by the meat he has harvested from his hunting.

25. In his affidavit he stated his current trip to Queensland and the Northern Territory is ‘a once in a lifetime opportunity to fulfil a lifelong dream’.

The ‘incident’ on 13 September 2021

26. Mr Hawker said in his oral evidence that he attended M’s premises on 13 September 2021 for a conversation about their son. It was not unusual for such conversations to take place. He has generally had a good relationship with M; even after they split up they would all spend Christmas morning together. He had also done some renovations for her.

27. He claims to have spent more time with his son over the years than M has. He said his son had been with him for 5 weeks straight before the 13 September visit. But one of the reasons he went to her place on 13 September was because M had been wanting to increase her time with her son, and she wanted to explore sharing custody on a 50/50 basis. Mr Hawker didn’t understand what motivated this change of attitude.

28. He said there was no threatening and no intimidation of M during the 13 September visit. He said it was just ‘a conversation’. He admitted spending a long time in M’s house that day but doubted that it was 2 hours. The interaction took place with both of them standing up in the dining room. In cross-examination he did not accept he had been ‘agitated’, but conceded some frustration on his part. He said there was ‘nothing out of the ordinary’ that occurred, it was a ‘massive surprise’ when the interim FVO was made, and ‘I don’t understand where this came from’.

29. In his affidavit he claimed the timing of the FVO application was ‘not all coincidental’. I infer he suspects M was trying to sabotage his trip to Queensland and the Northern Territory. He thinks M has been different since he announced his current partner was pregnant, with the baby due in late September 2021. He also thought the knowledge of the pregnancy may have had a bearing on the timing of M’s application for 50/50 shared custody of their son.

30. Mr Hawker said he is the one who pushed for mediation in the FVO matter. He claims to have been advised that his firearms licence could not be revoked if he entered into undertakings ‘without admissions’.

Anger management/counselling

31. As already mentioned clause 13 of the Parenting Plan requires Mr Hawker to enrol, participate in and complete an anger management course or counselling. In cross-examination he conceded he had not yet enrolled in such a course but was on a waiting list. He said there is a lot of demand for those courses. It is not clear whether his approach to the course provider was made ‘forthwith’ upon the making of the Parenting Plan, as required, or whether it was made more recently.

The ‘incident’ on 16 May 2020

32. Mr Hawker said he was not the instigator of the incident. He said the reason the police were called is because of the actions of two other people – his partner and one of the visitors. Indeed, the event report confirms he and one of the visitors had consumed only small amounts of alcohol. Mr Hawker sustained a minor injury and there is no suggestion he injured anyone.

33. I also note the following content of the event report:

Fears held by victim: Nil fears for his own safety and well-being. Only fears expressed are for the mental stability and health of the POI.

The Parenting Plan

34. During the mediation the parties also took the opportunity to negotiate the Parenting Plan referred to earlier. The parties have agreed to have ‘equal shared parental responsibility for [the son]’. The living arrangements are to be agreed in writing or, failing that, default to the specific provisions of the remaining clauses of the Plan – which, in broad terms, split the time evenly between the parents. Unless they agree otherwise in writing, clauses 3.2 and 3.3 provide that the son will spend:

3.2   From 8:30am on 17 March 2022 to 8:30am on 10 July 2022 with the Father for a camping holiday through Queensland and the Northern Territory (the Holiday), subject to the following applying:

3.2.1   With the Father to provide the Mother with further particulars and itineraries of the Holiday no less than 4 weeks before the commencement of the Holiday; and

3.2.2   That in the event that [the son] expresses a wish to return home from the Holiday, the parents will facilitate this (including [the son] returning to the Mother’s care should the Father remain on the Holiday);

3.3   From Friday 4 March 2022 until 17 March 2022 with the Mother; …

35. Mr Hawker told me during the hearing, on 4 March 2022, that his son was already with him in Queensland on the trip. So are his current partner and their baby daughter, not yet 6 months old. He said his son would be with him on the trip for 90% of the time.

Consideration

36. At the outset I confirm, as the parties appear to have accepted, that a final FVO made by the ACT Magistrates Court is an ‘apprehended violence order’ for the purposes of the NSW firearms legislation (Act s 4 definition, paragraph (c), and Regulation cl 143), but an interim FVO is not. This why the Commissioner does not rely on the combined effect of ss 24(2)(a) and 11(5)(c) of the Act, and instead focuses on the public interest ground in cl 20 of the Regulation.

37. I accept the public interest is an inherently broad concept: Commissioner of Police v Toleafoa [1999] NSWADTAP 9. Public interest considerations are different from those involving consideration of a licence holder’s character, or a person’s fitness and propriety to continue to hold a licence. When considering the public interest it is appropriate to take into account concerns around public protection, public safety and public confidence in the administration of the licensing system.

38. I also accept that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety: Firearms Act s 3(1)(a).

39. Let me deal first with the incident on 16 May 2020. The Commissioner submits (Written submissions, [32]):

There is evidence the applicant was involved in a domestic violence incident with his current partner – who suffers from a mental illness – which occurred in a location where his firearms are stored.

40. I am satisfied on the material before me that Mr Hawker was a pacifier, not an aggressor, in that incident. The attending police labelled him the victim. There is not the remotest suggestion that the firearms on the premises had anything to do with the incident. The storage of the firearms remained secure. The firearms were seized by the police but not because of any questionable activity or behaviour on the part of Mr Hawker; rather it was a purely routine action by the police. The firearms were returned after the standard 28-day ‘cooling off’ period. In the context of the public interest considerations potentially affecting the status of Mr Hawker’s firearms licence I regard this incident as irrelevant, or, if relevant, neutral.

41. The two significant factors that remain are the undertakings to the Court, and the requirement in the Parenting Plan that Mr Hawker undertake anger management or counselling. I must say it is regrettable that in respect of both matters there is so little information before me to assist my decision making.

42. M’s version of what happened on 13 September comprises the very brief second-hand report of the AFP officer who took her call the following day. Mr Lowe, representing the Commissioner in this proceeding, explained nothing else had been produced by the AFP. Perhaps that is a consequence of the truncated timetable as a result of the expedited hearing of this matter, but whatever the reason, the report stands as the only alternative to Mr Hawker’s sworn evidence that ‘nothing out of the ordinary’ occurred.

43. In any event, even if that view of Mr Hawker’s is honestly held, it has to give way to M’s ‘perception of the nature and seriousness of the respondent’s alleged conduct’ – which is a factor the Court is explicitly required to consider in the context of an FVO application (ss 14 and 21 of the ACT statute).

44. In issuing the interim FVO the Court will have relied, presumably, on the evidence of M. Whatever that evidence comprises is not before the Tribunal. Whatever issues were raised by the FVO application have not been determined on the merits by the Court, but by mediation. As part of the mediated settlement Mr Hawker made the undertakings already referred to. The undertakings require him, in a nutshell, not to go near M and to leave her alone. Since Mr Hawker perceives a marked deterioration in their relationship over the last several months, from even before the 13 September incident, I assess him as having no desire to interact with M in such a way as to breach any of the undertakings.

40. That brings me to the ‘anger management or counselling’ clause in the Parenting Plan. Mr Hawker was reluctant to concede there was any need for him to undertake such a course but two obvious inferences are available from its inclusion in the Plan. The first is that M saw it as desirable; the second is that Mr Hawker ultimately accepted that as well. I draw the first of those inferences but I hesitate to draw the second. The reason for my hesitation is that an equally reasonable inference is that Mr Hawker may have seen it as jeopardising the entire Plan if he did not accede to the proposal.

41. The likelihood is that what M has identified as ‘anger’, requiring some remedial action, Mr Hawker sees as normal behaviour driven by the frustration he feels when discussing significant issues with M. One can only hope M’s application for an FVO will help Mr Hawker to realise he needs to seriously rethink his behaviour, see things from M’s perspective, and make any necessary adjustments to the way he interacts with her.

42. But even against that background, M did not stand in the way of her son going away on the trip to Queensland, which to me indicates she is comfortable for the boy to spend long stretches of time with his father. She would surely not have agreed to that if she had thought her son was at risk, particularly since, at the time she agreed to it, Mr Hawker’s firearms licence was still in force. That is just as important a factor for me to take into account as the (admittedly unclear) circumstances surrounding Mr Hawker’s 13 September visit to M and the subsequent application for the FVO. The combined effect of Mr Hawker’s undertakings to the Court and the various provisions of the Parenting Plan, particularly clause 3.2, is that while M wants to avoid being in Mr Hawker’s presence, she does not take the same position with respect to her son. Of course it is also the case that Mr Hawker has had shared care of his son over many years – he says for more than 50 per cent of the time, at least in recent times – and no adverse events have been reported.

43. Mr Lowe, for the Commissioner, told me during the hearing he was not aware of another case in this Tribunal involving undertakings to the Court rather than conditions imposed by an AVO (or FVO). On behalf of the Commissioner he firmly opposed the proposition that undertakings are necessarily weaker than an AVO. I don’t think the issue should be seen in that light: different legislative provisions come into play in each case. It is not a question of ‘strength’ or ‘weakness’ in either case, but simply a question of analysing the facts against the legislative provisions that apply. And it should be remembered that even in the case of an AVO, revocation of the licence is not mandatory, but still requires the exercise of a discretion.

44. I return, then, to the first question I have to answer in this matter – am I satisfied that it is not in the public interest for Mr Hawker to continue to hold the licence? Having regard to the entirety of the material before the Tribunal, I am not so satisfied. I am not satisfied there is a risk to the safety of M or Mr Hawker’s son, or to the public more broadly, if Mr Hawker continues to hold a firearms licence. That means the discretion to revoke the licence is not enlivened. The revocation decision should be set aside.

45. I note that when the Firearms Registry made its decision it did not have all the information and documents that have been made available to the Tribunal. I also note that there may be further information and documents in existence that were not provided to the Tribunal, perhaps as a consequence of the truncated timetable for filing and serving documents prior to the hearing. It has not been put to me that the Commissioner has been prejudiced by the Tribunal’s decision to expedite the hearing, but it is possible my final decision would have been different if longer timeframes had been granted and further material had been filed. I do not say it would have been different, only that it might have been. In any event, if further information comes to hand that may have a bearing on the appropriateness of Mr Hawker’s firearms licence continuing in force, the Commissioner is obliged to consider that information and take whatever action is considered necessary.

Orders

1. The decision to revoke Mr Hawker’s firearms licence is set aside.

2. Instead the Tribunal decides the licence is not revoked.

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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: 16 March 2022