HCB v Commissioner of Police, NSW Police Force

[2025] NSWCATAD 179

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

HCB v Commissioner of Police, NSW Police Force [2025] NSWCATAD 179

Hearing dates:

2 June 2025

Date of orders:

23 July 2025

Decision date:

23 July 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Emeritus Prof R Graycar, Senior Member

Decision:

The decision under review is affirmed

Catchwords:

ADMINISTRATIVE REVIEW; Firearms Act 1993 (NSW); fit and proper person; contrary to the public interest

Legislation Cited:

Administrative Decisions Review Act 1977

Civil and Administrative Tribunal Act 2013 (NSW)

Evidence Act 1995 (NSW)

Firearms Act 1993

Firearms Regulation 2017 (NSW)

Cases Cited:

Almasi v Commissioner of Police, NSW Police Force [2023] NSWCATAD 312

Bilanenko v Commissioner of Police [2022] NSWCATAD 76

Commissioner of Police, NSW Police Force v Arnold [2023] NSWCATAP 264

Cusumano v Commissioner of Police [2001] NSWADT 50

Emery v Commissioner of Police [2022] NSWCATAD 122

Joseph v Commissioner of Police [2017] NSWCA 31

Kocic v Commissioner of Police, NSW Police Force (2014) 88 NSWLR 159; [2014] NSWCA 368

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

Meacham v Commissioner of Police [2020] NSWCATAP 107

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

Ward v Commissioner of Police [2000] NSWADT 28

Texts Cited:

None

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
D Holmes (Applicant)
M Pulsford, (Respondent)

Solicitor:
Norton Rose Fulbright Australia (Respondent)

File Number(s):

2025/00025176

Publication restriction:

The publication or broadcast of the name of the applicant and any member of his family is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

REASONS FOR DECISION

Background and introduction

1. These proceedings are an appeal from a decision of the respondent refusing to grant the applicant a firearms licence for which he had applied on 30 June 2024. By a decision made on 25 September 2024, the respondent refused the application, based on information provided by the applicant’s treating psychiatrist. The respondent considered that she could not be satisfied that the applicant would pose “virtually no risk” should the application be granted.

2. The applicant sought internal review and in support of that, provided a further letter from his treating psychiatrist. The decision was affirmed on internal review. This was also on the basis that the Commissioner could not be satisfied that the applicant posed “virtually no risk” to public safety if he were to be granted a firearms licence.

3. On 16 January 2025, the applicant sought review of the decision to refuse his licence by the Tribunal. The matter was heard by the Tribunal on 2 June 2025. At that time the decision was reserved.

Regulatory framework

4. The key relevant statutory provisions governing the decision before the Tribunal are contained in the Firearms Act 1996 (NSW) (Firearms Act). Section 3 sets out the principles and objects as follows:

3 Principles and objects of Act

(1)    The underlying principles of this Act are--

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

(b)    to improve public safety--

(i)    by imposing strict controls on the possession and use of firearms, and

(ii)    by promoting the safe and responsible storage and use of firearms, and

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

…

5. Section 11 of the Firearms Act is also central. It relevantly 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.

…

(3)    A licence must not be issued unless--

(a)    the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and

(b)    in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and

(c)    the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and

(d)    the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State.

...

(4)    Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of--

(a)    the applicant's way of living or domestic circumstances, or

(b)    any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or

(c)    the applicant's intemperate habits or being of unsound mind.

...

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

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

6. Section 75 of the Firearms Act provides for review of decisions:

75 Administrative reviews by Civil and Administrative Tribunal of certain decisions

(1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions—

(a) the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person,

…

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

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

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

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

10. There is no formal onus of proof in the Tribunal: see Meacham at [75] but as noted by the Appeal Panel in that decision at [82]-[83]:

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

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

11. A number of principles govern decision making under the Firearms Act. First, by s 3(1)(a), a key object of that Act is “to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety” (emphasis added). It follows from this that the community’s interests take precedence over the private interests of an individual. As put by Hennessy DP in Cusumano v Commissioner of Police [2001] NSWADT 50 (Cusumano) at [23], the powers in the Act “should be exercised in a way which promotes the principles and objects of the Firearms Act.”

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

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

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

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

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

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

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

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

Material before the Tribunal

Applicant

15. The applicant relied principally on a report by Dr Melissa Hughes, a clinical neuropsychologist and forensic psychologist, of NeuroForensics, dated 1 May 2025. The applicant also provided correspondence between him and the respondent seeking to have the respondent agree to the applicant being assessed by a jointly instructed further expert funded by each of them (applicant letter sent 20 February 2025). The respondent provided the Tribunal with a response to that letter (13 March 2025) and also provided the letter of instruction that had been provided to Dr Hughes (dated 24 March 2025). Dr Hughes appeared at the hearing remotely. In addition, the applicant gave oral evidence and was cross examined, and his wife also gave oral evidence. He provided written submissions prepared by his counsel.

Respondent

16. The respondent relied on a bundle of documents provided pursuant to s 58 of the ADR Act, and in addition, provided the following:

1. A tender bundle of documents (only part of which was received into evidence after discussion between the parties and the Tribunal);

2. A report of a Dr Haroon Riaz, consultant psychiatrist, dated 17 January 2022;

3. As noted above, the respondent’s response to the applicant’s request for a jointly funded expert assessment, 13 March 2025;

4. Phoenix Australia Guidelines for the Treatment of Acute Stress Disorder, PTSD and Complex PTSD, accompanied by a document from the Royal Australian and New Zealand College of Psychiatrists, endorsing the Phoenix Australia Guidelines;

5. Written submissions on the substantive issues dated 2 May 2025.

The evidence of Dr Hughes

17. The applicant relied on the report of Dr Hughes. She indicated that she had compiled her report after a three hour interview with the applicant and that she had had reference to the following medical information:

1. Letter from Dr Graeme Hammond, general practitioner, dated 18 June 2021;

2. Letter from Dr Andrew Jackson, the applicant’s consultant psychiatrist, dated 8 June 2021;

3. Mental health risk assessment from Dr Jackson, in response to a request from NSW Police after consideration of applicant’s application, dated 20 August 2024; and

4. Further letter from Dr Jackson dated 16 October 2024.

18. Dr Hughes acknowledged in her report that “no more recent letters from a regular GP are available”.

19. After summarising some of the issues that were raised in that material, including a six year history of methamphetamine use (with a diagnosis of substance use disorder, and PTSD, “with symptoms including suicidal ideation”), a June 2020 suicide attempt (the applicant had overdosed on illicit and prescription substances), Dr Hughes noted that the applicant was “following a treatment plan, has good formal and informal supports and appears to have good insight into his mental health issues”.

20. Dr Hughes summarised matters raised at interview as follows:

1. The applicant’s methamphetamine use was daily use; he had tried to hide it from his family, he had attempted suicide and that incident in June 2020 involved the attendance of both police and ambulance. He was taken to hospital and stated that he was discharged after three days of a mental health observation post.

2. The applicant told Dr Hughes that he spent three months at a rehabilitation facility in Adelaide and since leaving rehabilitation has engaged with supports and sees his psychiatrist in Perth every three months (by telehealth); a counsellor every two weeks and a couples counsellor every six weeks. He advised her that he was on medications including Escitalopram (10mg); Tramadol (100mg SR and 50 mg) and pantoprazole.

3. Through his time in the Australian Defence Force, the applicant has had training in the use of firearms and had applied for a firearms licence in 2020 in WA. His initial application was refused but he was eventually granted a licence in that state in 2021.

4. After moving to NSW, he had joined the Australian Pig Doggers and Hunters Association and wanted to be involved in pig hunting/shooting.

5. As for his medical history, he experienced hip and lower back pain and arthritis in his neck. He also had suffered serious burns in an incident in the military when he was younger which required six months’ hospitalisation and rehabilitation.

6. He referred to frustration about the process of seeking to be granted a firearms licence and also to stresses relating to moving his family to NSW. He told Dr Hughes that he thought he no longer met the criteria for PTSD aside from “jumpiness” in response to sudden loud noises, and that he did not have difficulties with sleep or thoughts of suicide or harm to others.

7. Since the incident in 2020, he had not drunk alcohol or used drugs other than prescription medication. He stopped smoking cigarettes, but has taken up vaping.

8. The applicant told Dr Hughes that there had never been any violence or threats thereof in his relationship apart from hurting himself and described a close and loving family.

9. Dr Hughes administered a series of self-report screening tests which included DASS-21, PCL-5, PID-5-SF which were generally in normal range. Following administration of the MMPI-3, a self-report scale of personality and psychopathology, Dr Hughes noted that he had a low tolerance for frustration, does not cope well with stress, and has “interpersonal difficulties relating to overly domineering behaviour”. It was suggested that there be further evaluation of disorders related to attention difficulties; anti-social personality disorder, and other “externalising disorders”.

21. Dr Hughes summarised her findings as follows:

1. The applicant reports no longer engaging in substance use or experiencing symptomatology “suggestive of previously diagnosed mental health disorders”;

2. He stated that he had never been violent towards others “and there is no evidence to the contrary”.

3. Since undergoing rehabilitation, “he describes having developed better coping and emotion regulation skills and conflict resolution skills”.

22. Dr Hughes concluded that “there is no convincing evidence that [the applicant] is presently experiencing mental health impairment” and while she referred to personality characteristics that “may have relevance in interpersonal difficulties … such as disinhibition, and domineering or authoritarian ‘black and white’ thinking style, … there is no indication that these tendencies would increase his risk to public safety more than any other veteran”. She attributed this view to his having “developed insight into his vulnerabilities and addressed same” and to having “knowledge of supports available” which in her view made him “less of a risk to public safety than others who hold such a licence”.

23. She also concluded that he did not appear to meet the criteria for PTSD or substance use disorders, mainly based on his “engagement in treatment, insight and awareness” and considered it “improbable that he would relapse into a similar condition or to the same extent”.

24. She concluded her report as follows:

… [H]is development of insight, coping and conflict resolution, along with informal and informal supports serve as strong protective factors. He is also noted to have extensive training on firearm safety. … For him to remain “virtually” no risk he should remain abstinent from substances and to engage with appropriate supports, as he has been doing”.

25. Under cross examination from the respondent, Dr Hughes acknowledged the following:

1. She saw the applicant only once (albeit for three hours) and has never been involved in his care or treatment;

2. Her opinions are based on the information that was provided to her and other than the reports she referred to, she had no access to his medical history or records, nor did she speak with any of his treating doctors. She did not speak to the applicant’s wife, nor was she provided with incident reports from WA Police;

3. She was unaware that the applicant was being treated for PTSD in 2019 and that on 30 October 2019, Dr Jackson described his PTSD as “stable, permanent and not likely to improve”. Nor was she aware that at that time he was receiving psychotherapy and was on medication, or that he had hidden his methamphetamine use, including denying to Dr Jackson in 2019 that he was using it.

1. Dr Hughes was not aware that the applicant’s wife told police that he had threatened self-harm before the 2020 incident, nor was she aware that the applicant had grabbed his son by the throat and that his wife had indicated that she was frightened of his violence/verbal aggression.

2. Dr Hughes was not aware that the applicant had discharged himself from hospital in 2020. She was also unaware that he had been treated by Dr Riaz for chronic insomnia.

3. Dr Hughes acknowledged the limits of self reporting tools.

26. When asked if the matters of which she had been unaware would cause her to change her views about what she had described as the applicant’s insight, Dr Hughes replied that it would not necessarily do so. This was because the omissions were understandable and demonstrated insight into how those matters would look.

27. In relation to her reference to his being no more of a risk “than any veteran”, Dr Hughes acknowledged that she had no specific expertise in relation to veterans nor in relation to firearms.

28. In re-examination, Dr Hughes maintained her view that the risk of relapse was low.

The applicant’s oral evidence

29. The applicant had held a firearms licence in WA and spoke about his understanding of safe storage practices. He insisted that he had never permitted anyone else access to the keys to his firearms safe. He referred to the period in which he held the licence as being incident free.

30. Under cross examination

1. he agreed that his firearms licence in WA had initially been refused on mental health grounds and specifically, because his treating GP, Dr Hammond, had not been prepared to “sign off” on a firearms licence but he denied being aware from that process that his mental health was relevant to his application for a licence in NSW.

2. On his June 2024 application form, he stated he had not been treated for a mental or nervous disorder or illness in the past 12 months but acknowledged that he had seen Dr Jackson four times in that period. He nonetheless considered that he had “provided full disclosure” as he had included information about the 2020 incident.

3. He agreed that the information provided on his application form did not include any reference to 6 years’ methamphetamine use nor to PTSD but in relation to the latter, he claimed to be in remission. In his view, WA Police would have shared information with NSW Police and he assumed that the latter would have access to all information that the WA Police had considered relevant.

4. He also acknowledged that he had not provided any recent medical evidence to the Tribunal, other than the reports of Dr Jackson specifically directed to the application and the IRD. The only other material he had provided was the report of Dr Hughes and she was given only the medical information that was in the s 58 documents.

5. The applicant did not accept that his history (including his WA firearms licence application process) made it apparent that his PTSD and mental health were going to be significant issues for the Tribunal. He stated that he did not understand why he was being asked those questions.

6. He conceded that “once an addict, always an addict” but in his view, it was not his responsibility to disclose those matters: it was up to the NSW Police to obtain information from WA Police.

7. He also acknowledged that he was aware that if Dr Hughes reached an adverse conclusion, he would not have been granted a licence and that would also be the case if she had indicated that his PTSD was still active.

8. He suggested that Dr Hughes’ statement that he had been diagnosed with PTSD after June 2020 was a clerical error as he accepted that he had been receiving Department of Veterans Affairs benefits for that condition through 2019. He also had signed onto a treatment plan in relation to his PTSD at a meeting attended by the applicant and his wife with Dr Jackson on 27 August 2019.

9. He agreed that he had not informed Dr Hughes of drug use other than methamphetamine; he stated that he had not advised of his cocaine and cannabis use because he was not addicted to either of those.

31. The applicant was asked to address some of the matters that were documented in the tender bundle, including records from WA Police. At this stage, the applicant sought and was granted a certificate under s 128 of the Evidence Act 1995 (NSW). While the Tribunal is not bound by the rules of evidence (cf CAT Act, s 38(2)), a participant in a tribunal hearing is entitled to invoke the privilege against self incrimination if they otherwise object to answering a question.

32. Section 128(7) provides:

(7)  In any proceeding in a NSW court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence—

(a)  evidence given by a person in respect of which a certificate under this section has been given, and

(b)  evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence,

cannot be used against the person.

33. The applicant was granted such a certificate in respect of questions on the topic of threats and/or actual violence perpetrated to/on family members.

34. The applicant was taken to WA police records referring to reports from the applicant’s wife where she had told the police that on an overseas holiday, the applicant had grabbed one of the children around the neck and verbally abused them. He is also reported to have thrown things at the child. Those records also reported his wife’s concerns about fear for the safety of the family.

35. The applicant stated that he was unsure if those matters described were true or not as he does not recall them and they were things his wife had said. He agreed however that he had not told Dr Hughes about any other incident involving violence or threats of self harm other than the suicide attempt in June 2020: he stated that when he saw her, he did not recall any other incidents.

36. The applicant also disputed that, as stated in Police records, he had discharged himself from hospital after the June 2020 incident. He denied that that occurred or that there was a plan for him to transfer to another hospital for treatment.

37. As for the sleep issues he had experienced, he did not tell Dr Hughes about that because he was not asked about whether he had previously experienced sleep issues.

38. He stated that he did not see how dredging up the past was relevant to him having a firearms licence.

39. On re-examination, he reiterated that he would have expected NSW Police to obtain relevant information from WA. He was asked to provide information in the form of a risk assessment from Dr Jackson and he did so.

40. The applicant’s wife also briefly gave evidence. She confirmed that the incident she had told police about involving one of their children had occurred and at that time they were on holidays. She did not know if he was using drugs at the time of the incident. She also confirmed that she had never been given the key to the gun safe.

Respondent’s evidence

41. The main evidence relied on by the respondent is contained in the s 58 bundle and the tender bundle. The latter contained Dr Jackson’s records, which also referred to the incident of physical aggression toward one of the children, including the applicant putting his hands around the child’s neck. Those records report the applicant had, on 27 August 2019, “adamantly denied using drugs”. They also reference sleep issues, and refer at various times to concerns expressed by the applicant’s wife that he is using drugs, which he continued to deny. Dr Jackson recorded in early 2020 that the applicant’s wife had reported that she is “frightened to confront him about possible substance use”. It was only after the June 2020 incident that he acknowledged this use and a record of 30 June 2020 states that there was conflict with his wife about his “reported desire to cease use”.

42. In a letter dated 30 October 2019 to the Department of Veterans Affairs, Dr Jackson had said that the applicant suffered from PTSD, that he was hopeful that treatment may decrease the level of impairment but that he considered the condition “stable and permanent” and that any reduction in impairment is “likely to be marginal”.

43. The s 58 documents contained the following relevant information.

1. A letter from Dr Jackson (to WA licensing authority) dated 8 June 2021 in which the applicant was said to have good insight into his mental health issues which are now in remission. However, Dr Jackson opined that “continued appointments with his treating team would be a reasonable condition on his licence, and … his suitability to hold a Licence should be periodically reviewed”.

2. After his current NSW firearms licence application was lodged, the applicant was asked to provide a “medical report authorisation” and asked to have his GP refer him to a psychologist or psychiatrist for a risk assessment. This was completed by Dr Jackson on 20 August 2024. Dr Jackson stated that the applicant was in remission from PTSD and substance use disorder (methamphetamine) and that during the 6 years of his methamphetamine use, which coincided with PTSD, his ability to continuously and responsibly control a firearm was impacted. It remained possible, but unlikely, that he will relapse and if that were to occur, “there would exist the potential to put public safety at risk”. That was a risk which Dr Jackson said was posed in the 6 years prior to 2020, and he opined that the current risk of relapse is low. But he added:

[S]hould a licence be issued, it would be appropriate for conditions to include ongoing mental health treatment (he currently maintains active treatment) and periodic review.

44. After the application was refused, Dr Jackson provided a further letter in support of the applicant’s application for internal review. He stated:

I wanted to clarify that I did not mean this recommendation [the imposition of conditions on the grant of a licence] to suggest the presence of current risk. Rather, it was intended to provide further safeguard against any possible future risk. Furthermore I would like to emphasise that in my opinion the risk of relapse for [the applicant] is low.

45. The Internal Review Decision (IRD) acknowledged that the risk of relapse was low but maintained the position of the first instance decision maker that if there were to be a relapse, there was a potential to put public safety at risk and concluded that it could not be satisfied that there was virtually no risk.

Issues

46. The key issue for consideration in this matter is whether the decision to refuse to issue a firearms licence to the applicant is the correct and preferable decision. That in turn depends upon whether the applicant meets the criteria for the grant of a licence set out in s 11 of the Firearms Act and in particular, whether issue of the licence to him would be contrary to the public interest.

47. The applicant has raised as an additional issue whether, “if it is contrary to the public interest for [the applicant] to hold a licence, ought a discretion be exercised to grant [the applicant] a licence subject to condition”.

48. The respondent has identified the following as the relevant issues:

1. The applicant’s history of holding a firearms licence; police history and history of drug use;

2. Whether there are concerns for the applicant’s mental health;

3. Whether the Tribunal can be satisfied that the applicant poses virtually no risk to himself or others if he were to possess firearms; and

4. whether it is in the public interest for the applicant to hold a firearms licence and, if not, without the concern can be addressed by a condition for ongoing mental health treatment.

The submissions of the parties

49. Applicant: The applicant has contended in submissions filed on 1 April 2025 that the decision should be set aside as it reflects a “failure to accept or understand the available medical evidence” and it also involves a “confusion of possibility with probability”. While the applicant acknowledges that his own treating psychiatrist had indicated that it was possible he would relapse, the applicant emphasises that Dr Jackson had said that the risk of relapse remains low. The applicant contends that “almost anything is possible, but almost anything is not likely or probable” and suggests that if the test were whether it was possible that a relevant risk would materialise, “no applicant for a firearms licence [would] ever succeed”.

50. The applicant contends that the available evidence demonstrates that he has “fully recovered from his health problems and is presently medically and mentally fit to hold a firearms licence”. In addition, he relies on his “incident free years of responsible firearms licensing history, post the event of June 2020” and contends that, taking account of all the evidence, “it would be in the public interest to grant the licence application”. Alternatively, if the Tribunal considers it would be contrary to the public interest for him to hold a licence, the applicant submits that it would be appropriate to grant the applicant a licence subject to a proposed condition that the applicant continue ongoing mental health treatment with periodic review by his current treating psychiatrist, Dr Jackson. In oral submissions, the applicant emphasised that the proposal to submit to a condition on a licence (were it to be granted) is a preventive measure and is not directed at any identified current risk.

51. Respondent: The respondent set out the various requirements of the legislation in relation to which the Tribunal was required to be positively satisfied: these include that the applicant is a fit and proper person to hold such a licence (see s 11(3)(a)) and noted that parts of s 11 varied as to the use of the terms “must” or “may” (comparing s 11(3) and (4) with s 11(7) which provides that the Commissioner “may” refuse to issue a licence if s/he considers that it would be contrary to the public interest. The respondent submitted that in the context of s 11(7), “may” ought to be read as “must”.

52. Turning to the specific facts of the case, the respondent emphasised the applicant’s history of misuse of non-prescription drugs and the inconsistency between the report of Dr Hammond, GP, who described that use as brief, and that of Dr Jackson, the applicant’s treating psychiatrist, who records a six year period of drug use. The respondent also notes that other than the report of Dr Holmes, the applicant provided no more recent medical information than what was before the primary decision maker, other than a note from Dr Jackson that was included in the material for the internal review.

53. The respondent relied on material that it had obtained pursuant to summons which included records of Dr Jackson. Amongst them were a report from Dr Jackson dated 30 October 2019 to the Department of Veterans Affairs in which he indicated that the applicant’s PTSD was “stable and permanent” and any “reduction in impairment is likely to be marginal”.

54. In a report written in response to the 2024 application that is before the Tribunal Dr Jackson stated that if the applicant were to have a relapse of his PTSD there would be the potential to put public safety at risk if the applicant held a firearms licence. He stated further that there was a risk of relapse albeit it was low. Dr Jackson had stated that if a licence were to be granted, “it would be appropriate for conditions to include ongoing mental health treatment (he currently maintains active treatment) and periodic review.

55. In the context of the IRD, Dr Jackson reiterated that he considered the risk of relapse to be low. The respondent submitted that this demonstrated the existence of a “real, not fanciful, not theoretical risk”. The respondent further submitted that the Tribunal’s ability to consider the risk was affected by the absence of information, and in particular information about the applicant’s current mental health and treatment regime, referring to Almasi v Commissioner of Police, NSW Police Force [2023] NSWCATAD 312 at [101].

56. In relation to the evidence of Dr Hughes, as foreshadowed in the earlier discussion of that evidence, the respondent submitted that the evidence of Dr Jackson, the treating specialist psychiatrist, should be preferred to that of Dr Hughes, who saw the applicant on only one occasion and whose report was limited by the material/information provided to her and the limited questions to which she was asked to respond.

57. The respondent submitted that it was open to the Tribunal to take into account conduct that could be relied on to establish a criminal offence, even if no such offence has been proved (or even charged), referring to Commissioner of Police, NSW Police Force v Arnold [2023] NSWCATAP 264 (Arnold) where the Appeal Panel had made express reference to incidents of domestic violence as a “serious cause for concern” (Arnold at [75]).

58. In relation to the proposed conditions, the respondent noted that there was no concrete treatment plan. At its highest was what was proposed by Dr Jackson (ie, ongoing mental health treatment … and periodic review). It was not clear what that would entail and the applicant had a history of not following treatment plans. Moreover there was no statutory process for enforcement of any such condition (by contrast with reg 37 of the Firearms Regulation 2017 (NSW) which refers to the statutory power of the Commissioner set out in s 19(2)(c) to inspect firearms.

59. The respondent referred to the applicant’s failure to disclose his current mental health treatment and submitted that the lack of transparency in the application was a matter that demonstrated that the applicant was not a fit and proper person to hold a licence (referring to s 11(3)). The respondent further exhorted the Tribunal to take account of s 11(4)(b) which requires the Commissioner to take into account “any previous attempt by the applicant to commit suicide or cause a self-inflicted injury”. This was in addition to s 11(7) which empowers the Commissioner to refuse to grant a licence if it would be contrary to the public interest to grant the licence.

60. In reply, the applicant submitted that the applicant ought not be seen as having failed to disclose relevant matters as he had disclosed his suicide attempt and explained that he expected the NSW Registry to obtain relevant information from WA. The applicant also submitted that s 11(7) ought to be read as conferring a discretion to refuse a licence, rather than imposing a requirement to do so.

Consideration

Findings

61. The Tribunal has considered all the documentary material that was before it as well as the oral evidence adduced at hearing and makes the following findings, noting that the findings are made on the balance of probabilities. This includes findings about matters that might raise the potential to be considered as criminal behaviour (and in relation to which a certificate under s 128 of the Evidence Act was issued). As the NSW Court of Appeal has made clear in Joseph v Commissioner of Police [2017] NSWCA 31 at [60]:

There was no reason in principle why the Appeal Panel could not take into account matters indicating criminal conduct on Mr Joseph’s part and do so after applying a lesser standard of proof than the criminal standard (Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7 at [32]-[33])

1. The applicant, while he disclosed that he had made a previous suicide attempt, answered “no” on his 2024 application for a firearms licence to the question of whether he had been referred or treated for a mental disorder in the previous 12 months. This answer was false in light of the evidence before the Tribunal that he sees his psychiatrist, Dr Andrew Jackson quarterly (and see also his psychiatrist’s letter in response to the risk assessment request where Dr Jackson indicated that the applicant “currently maintains active treatment”). The Tribunal does not accept the applicant’s contention that it was the responsibility of the NSW Police to obtain relevant information independently from WA (where he previously held a firearms licence).

1. The applicant has been diagnosed with PTSD which his current treating specialist psychiatrist Dr Jackson described in 2019 as “stable, permanent and not likely to improve”. In 2024, Dr Jackson stated that the applicant was in remission from PTSD and described the risk of relapse as low. However, he cautioned that if he were to relapse, “there would exist the potential to put public safety at risk”. For that reason, Dr Jackson recommended that “should a licence be issued, it would be appropriate for conditions to include ongoing mental health treatment … and periodic review”.

2. In light of that evidence, and the caution expressed by Dr Jackson as to the potential future risk to public safety, the Tribunal finds that the risk to public safety should a licence be issued to the applicant, while low, is real and is not, as characterised in submissions on behalf of the applicant, a mere hypothetical or far-fetched risk in the nature of “all risks are possible”. In assessing risk, there is a clear distinction between a person with the applicant’s mental health history (who is currently in remission) on the one hand, and an applicant without that history but who might, in the context of accepting that “all risks are possible”, subsequently develop a condition that presents a risk to public safety.

3. The applicant has previously attempted suicide (June 2020) and has also acknowledged that he was involved in an incident of violence toward one of his children. He did not disclose the latter to Dr Hughes who was unaware of that incident when she prepared the report that he presented in support of his application for review. He also acknowledged being aware that if Dr Hughes had found that he was currently suffering from PTSD he would not likely be granted a firearms licence.

4. The applicant has a history of methamphetamine use and has also used other non-prescription substances over a period of six years (ending in 2020). During that period, he denied that use, including to Dr Jackson, his treating psychiatrist, and he did not disclose to Dr Hughes that he had denied that use at the relevant time to Dr Jackson. It is also not apparent that he fully informed his former GP, Dr Hammond, of the extent of his use of drugs as Dr Hammond wrote in support of his WA licence in June 2021 that he had “a brief problem last year with non-prescription drugs”.

5. The applicant also has a history of sleep disturbance and saw a specialist for chronic insomnia, another matter not disclosed to Dr Hughes.

6. Where there is a conflict between the opinion of Dr Hughes and that of Dr Jackson, the Tribunal prefers the view of Dr Jackson as a treating doctor over many years, by contrast with Dr Hughes who saw him solely for the assessment and whose report was clearly shaped by the information she was given and the questions to which she was asked to respond.

62. Based on the findings set out above, the Tribunal, in applying legislation a key underlying principle of which is “to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety” (Firearms Act, s 3(a)), is satisfied that it would be contrary to the public interest for the applicant to be granted a firearms licence.

63. The applicant’s alternate case is, as put by the applicant, that if “the Tribunal considers it is contrary to the public interest for the applicant to hold a licence, … it is appropriate for the discretion to be exercised granting … a licence subject to conditions, [viz], that the applicant continue ongoing mental health treatment with periodic review by Dr Jackson, consultant psychiatrist.” It will be recalled that Dr Jackson recommended that if he were to be granted a licence, it ought to be subject to conditions.

64. This presupposes a finding that it is contrary to the public interest for the applicant to hold a licence. Irrespective of whether s 11(7) requires a licence to be refused if granting it would be contrary to the public interest (as the respondent contended) or provides a discretion to refuse a licence if granting the licence would be contrary to the public interest, a matter the Tribunal does not consider necessary to determine (though cf observations of Leeming JA in Kocic v Commissioner of Police, NSW Police Force (2014) 88 NSWLR 159; [2014] NSWCA 368 at [84]), the Tribunal does not consider it appropriate to grant a licence to the applicant in this case, including a licence subject to conditions. This is because the Tribunal considers that in light of his history, there would be a real, albeit low, risk of danger to public safety if the applicant were to have such a licence and that would in turn be contrary to the public interest. But the nature and magnitude of the consequences that could occur if that risk eventuated is such that even a low risk, if based on concrete past evidence, is sufficient to preclude the grant of a licence in a regime that priorities public safety and in relation to which it has been held that there must be “virtually no risk”.

65. As for the proposed conditions, they fall to be considered against the evidence before the Tribunal. While the applicant told Dr Hughes that he sees a regular counsellor, he provided no evidence of that, nor of having a current GP (the latest GP report in evidence is from 2021). In circumstances where the applicant is proposing an ongoing treatment condition on a licence, the Tribunal would anticipate that such a proposal (and the treatment plan) would be far more specific than what is before the Tribunal. And, as the respondent identified, the applicant’s proposal does not enliven any statutory mechanism by which the Commissioner could ensure that any condition of this nature was being complied with. This is particularly the case in circumstances where the applicant has provided no details of any treating practitioner in NSW, nor any details of any engagement with treatment aside from quarterly appointments with Dr Jackson (who is in WA and who the applicant sees remotely). It will also be recalled that the applicant indicated in his oral evidence that he did not consider being asked questions about his past mental health, or other past issues, was relevant to the issue of whether he should be granted a licence in 2025. In those circumstances, the Tribunal considers that, as the Tribunal said in Martin at [67]: “taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety”, the appropriate way to address that risk, having found it would be contrary to the public interest to grant a licence, is to refuse to grant the licence, rather than to grant the licence but impose conditions on it that have no mechanism for enforcement.

66. Having made that finding, it is not strictly necessary to consider other bases upon which the firearms licence could be refused. However, the respondent contended that the licence should also be refused on the basis of s 11(3)(a) (the Tribunal is not satisfied that the applicant is a fit and proper person who can be trusted to have possession of firearms without danger to public safety) and in that context, should consider s 11(4)(b) which refers to any previous attempt by the applicant to commit suicide or cause a self-inflicted injury.

67. Had it not already decided that the grant of a licence would be contrary to the public interest, the Tribunal is also not satisfied that the applicant is a fit and proper person to hold a firearms licence within the meaning of s 11(3)(a). There is a wealth of case law on this concept. Perhaps the leading authority is Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 where at 380 Toohey and Gaudron JJ stated:

The expression ‘fit and proper person’, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. … (emphasis added).

68. The context here is that of an Act where a key underlying principle is “the overriding need to ensure public safety” (Firearms Act, s 3(a)) in relation to which it is established that the Tribunal must be satisfied that there is “virtually no risk”. As the Appeal Panel noted in Commissioner of Police v EMB [2021] NSWCATAP 63 at [45], the Tribunal is required to form a positive state of satisfaction that an 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. In light of the applicant’s failure to provide relevant information on his application, and the absence of any additional and current health information from those from whom he is receiving care (aside from Dr Jackson), the Tribunal is unable to form that positive state of satisfaction.

69. On this basis, and on the basis of s 11(7) discussed above, the decision under review must therefore be affirmed.

Orders

1. The decision under review is affirmed.

2. The publication or broadcast of the name of the applicant and any member of his family is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

**********

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

Registrar

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

Registrar

Amendments

23 July 2025 - Representation in the coversheet corrected

Decision last updated: 23 July 2025