Snow v Commissioner of Police, NSW Police Force

[2024] NSWCATAD 214

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

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

Hearing dates:

6 June 2024

Date of orders:

31 July 2024

Decision date:

31 July 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Robinson, Senior Member

Decision:

(1)   The decision under review is affirmed.

(2) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 other than to the Tribunal and Respondent, publication or broadcast of:

(a)   the contents of exhibits CR9, CR10 and CR11 received in evidence by the Tribunal on 6 June 2024 is prohibited;

(b)   any part of the evidence given before the Tribunal and submissions made to the Tribunal at the confidential hearing on 6 June 2024, including all recordings, whether written, electronic or aural of that hearing is prohibited; and

(c)   any part of any paragraph of these reasons which commence with [NOT FOR PUBLICATION] other than the words in those brackets is prohibited.

Catchwords:

ADMINISTRATIVE REVIEW - firearms – condition of licence - public interest

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Cases Cited:

Constantin v Commissioner of Police [2013] NSWADTAP 16

Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134

Ljubenkov v Commissioner of Police, NSW Police Force [2024] NSWCATAD 43

Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276

Shi v Migration Agents Registration Authority [2008] HCA 31

Snow v Commissioner of Police, NSW Police Force [2023] NSWCATAD 139

Wallin v Commissioner of Police (No 2) [2022] NSWCATAD 83

Ward v Commissioner of Police [2000] NSWADT 28

YG and GG v Minister for Community Services [2002] NSWCA 247

Texts Cited:

None

Category:

Principal judgment

Parties:

Jonathan Malcolm Snow (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Applicant (Self-represented)
McCullough Robertson (Respondent)

File Number(s):

2024/00008414

Publication restriction:

Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 other than to the Tribunal and Respondent, publication or broadcast of:
a. the contents of exhibits CR9, CR10 and CR11 received in evidence by the Tribunal on 6 June 2024 is prohibited;
b. any part of the evidence given before the Tribunal and submissions made to the Tribunal at the confidential hearing on 6 June 2024, including all recordings, whether written, electronic or aural of that hearing is prohibited; and
c. any part of any paragraph of these reasons which commence with [NOT FOR PUBLICATION] other than the words in those brackets is prohibited.

REASONS FOR DECISION

Background

1. Jonathan Malcolm Snow (the Applicant) applied for a Category AB firearms licence. The reason he applied for the licence was to control feral animals on his rural property and for recreational hunting.

2. The Applicant previously held firearms licences for many years but in 2021 his firearms licence was revoked as a result of conduct involving breaches of his firearms licence as detailed in Snow v Commissioner of Police, NSW Police Force [2023] NSWCATAD 139.

3. The Commissioner of Police (the Commissioner) approved the Applicant’s application for a fresh firearms licence with a special condition on 14 November 2023 because the Commissioner was not satisfied it would be in the public interest to grant an unconditional licence on grounds unrelated to the 2021 revocation. The condition imposed was relevantly:

The licence holder is prohibited from storing firearms, firearm parts and ammunition at any location where the following person resides or frequents: Harrison SNOW…

4. The Commissioner conducted an internal review of the decision at the Applicant’s request and on 2 January 2024 the Commissioner affirmed the decision to impose a condition and varied the condition. The varied condition is relevantly:

(1) The licence holder is prohibited from storing firearms, firearm parts and ammunition at any location where Harrison Snow…resides or frequents; and

(2) The licence holder is prohibited from handling or using firearms, or removing firearms, firearms parts and ammunition from any safe storage facility, in the presence of Harrison Snow…

5. The Applicant seeks review of the decision to impose item (1) of the varied condition (the condition) on his firearms licence.

Material before the Tribunal

Open material

6. The Applicant provided an application for review attaching the internal review reasons (exhibit A1) and three written submissions (exhibit A2, A3 and A4). The Applicant also made oral submissions and was cross examined at the hearing on 6 June 2024.

7. The Commissioner provided bundles of documents (exhibits R1, R2 and R3) of which the R3 contains redaction, a statement of Inspecter Vedder, a police officer (exhibit R5) and two written submissions (exhibits R4 and R7), to both the Tribunal and the Applicant. The Commissioner also made oral submissions at the hearing.

Confidential material

8. The Tribunal was also provided with a statement of a police officer (exhibit CR9) and written submissions (exhibit CR10), as well as a bundle of documents (exhibit CR11), on a confidential basis (together, the confidential material). 

9. On 10 April 2024 the Tribunal made orders under s 64 of the Civil and Administrative Tribunal Act 2013 (the CAT Act) prohibiting publication, broadcast or disclosure of the confidential material or any part of a closed hearing. A closed hearing was held on 6 June 2024 following the open hearing. For the purposes of this review a further order will be made preventing disclosure of any part of a paragraph in these reasons that commences with [NOT FOR PUBLICATION] other than the words in those brackets.

Procedural issue

10. On 6 June 2024 following the conclusion of the hearing the Applicant sought to provide further material to the Tribunal. The Tribunal is satisfied procedural fairness was afforded to the Applicant during the hearing and considering Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 (at [4]-[5]) the Tribunal declines to permit further filing of material by the Applicant.

Applicant’s case

11. The Applicant contends the first item of the condition imposed on his licence, that he cannot store firearms and ammunition at any location where his son resides or frequents is effectively a prohibition on him keeping firearms because any time his son might visit his property he would be in breach of the condition and he needs firearms for pest control at his property such as dealing with fox and dog attacks.

12. The Applicant does not oppose the second item of the condition prohibiting him from handling, using or removing firearms and ammunition from any safe storage facility in the presence of his son.

Respondent’s case

13. The Commissioner contends the correct and preferable decision is to affirm the decision to impose the condition because without the condition there is reasonable cause to believe the Applicant may not personally exercise continuous and responsible control over his firearms because of his domestic circumstances, specifically involving his son.

14. The Commissioner submits that public confidence and expectations of the firearms licensing system would be undermined if firearms were stored where people with the characteristics of the Applicant’s son could access or had the potential to access firearms. The Commissioner contends the condition is a proportionate response to a risk to public safety when weighed against the reasons the Applicant has for wanting a firearms licence.

15. The Commissioner is of the view issuing a licence to the Applicant without the condition would be contrary to the public interest.

Role of the Tribunal

Jurisdiction

16. The Tribunal has jurisdiction to review an administratively reviewable decision: s 55 of the Administrative Decisions Review Act 1997 (the ADR Act). Section 75 of the Firearms Act 1996 (the Firearms Act) provides that applications may be made to the Tribunal for administrative review of a decision to refuse a firearms licence. The Tribunal has jurisdiction to hear and determine this application for review.

Administrative Review

17. When considering an application for review the Tribunal is to decide what is the correct and preferable decision having regard to the material before it (s 63(1) of the ADR Act). In doing so the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) of the ADR Act). The time at which the correct and preferable decision is determined is when the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25]. In conducting a review the Tribunal is not restricted to consideration of the material that was before the Commissioner but may have regard to any relevant material before the Tribunal at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.

18. The Tribunal may decide to affirm or vary the administratively reviewable decision, or set it aside and either substitute a different decision or remit the matter to the administrator for reconsideration: see s 63(3) of the ADR Act.

Relevant Legislation

19. The underlying principles of the Firearms Act are set out in s 3 and include:

(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…

20. Section 11 of the Firearms Act allows the Commissioner to issue or refuse a firearms licence application relevantly providing:

(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

(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

…

(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.

21. Section 19 of the Firearms Act allows the Commissioner to impose conditions on a firearms licence:

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

Consideration

22. The Commissioner’s reasons for the imposition of the condition are unrelated to the Commissioner’s previous revocation decision that resulted from the events outlined and considered by the Tribunal in Snow v Commissioner of Police, NSW Police Force [2023] NSWCATAD 139.

23. There is no suggestion the Applicant is not a fit and proper person to hold a firearms licence in this review.

24. At issue in this review is whether the imposition of the condition is appropriate given the Applicant’s circumstances.

The Applicant’s domestic circumstances

25. The Applicant’s son has a long and extensive criminal history of convictions in relation to various drug, break and enter, driving and weapons offences. He is currently on remand awaiting trial for multiple offences.

26. While the Applicant states he has no knowledge of matters that may be contained in the confidential material, as a matter of public record and known to the Applicant, his son has a significant criminal history of offences.

27. The Applicant, as a loving and supportive father, states his son has an invitation to stay at his property, albeit in separate accommodation and subject to his household rules. The Applicant does not expect his son to take up this offer if his son is released later this year as his son is likely to have other accommodation available. If his son does visit the property his son is unlikely to enter the Applicant’s house.

28. The Applicant contends that even if his son was not in residence on the property, he cannot control when his son might visit his property, therefore if he stores his firearms at his property he could inadvertently breach his licence at any time, making the condition an effective prohibition on him using his firearms, with the effect that his firearms licence would be of no practical utility.

29. The Applicant contends that the safe storage requirements of his licence and the practical arrangements of his gun safe should be enough to mitigate any risks to public safety. Further, the Applicant’s evidence is that his son has always respected his household rules in relation to the prohibition of drugs and has not been charged or convicted of any firearms offences.

30. The Applicant’s evidence was that if the condition is removed, his son will not be aware whether firearms are stored at his property. However, the open part of these proceedings and resulting decision will be publicly available, therefore the Tribunal cannot be satisfied the Applicant’s son will not have knowledge of the potential for firearms to be stored at the Applicant’s property.

Public safety and risk

31. Under the Firearms Act, public safety is the primary consideration: Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134. The interest of an applicant in obtaining a firearms licence is subordinate to that consideration: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 (Martin).

32. In Ward v Commissioner of Police [2000] NSWADT 28 Deputy President Hennessy said (at [27] - [28]):

…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.

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.

This risk consideration applies to both the fit and proper person and public interest test: Martin at [69].

Is it in the public interest for the Applicant to hold a licence without the condition?

33. The term public interest is not defined in the Firearms Act. In Constantin v Commissioner of Police [2013] NSWADTAP 16 the Appeal Panel stated (at [33]):

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 Wallin v Commissioner of Police (No 2) [2022] NSWCATAD 83 the Tribunal stated (at [36]-[37]):

The appropriateness of a special condition on a firearms licence is a function of the public interest. In the context of firearms licensing, the overarching component of the public interest is public safety: Mulligan v Commissioner of Police [2020] NSWCATAD 272 at paragraph [58]. Restrictions imposed by a special condition should not go further than is required for the protection of public safety. The issue to be addressed is therefore whether considerations of public interest, or a concern for the risk to public safety, justified the imposition of the special condition. That is to say, whether the inconvenience suffered by the applicant as a consequence of the imposition of the special condition was necessary to ensure public safety: Mulligan v Commissioner of Police at paragraph [26].

A decision maker should not shy away from the exercise of a discretion merely on the ground that the licensee may suffer hardship or inconvenience: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at paragraph [22].

35. Further, in determining public interest considerations, including whether there is a risk to public safety if the Applicant was granted a licence without the condition, it is appropriate to consider the Applicant’s entire history, including his family who live or associate with him, and not just his recent conduct: see Ljubenkov v Commissioner of Police, NSW Police Force [2024] NSWCATAD 43 at [28].

36. On the material before the Tribunal, the Tribunal is satisfied the Applicant’s son has a significant criminal history such that there is a risk to public safety if he were to have access to a property where firearms are stored, either by residence or visiting and the Applicant may not personally exercise continuous and responsible control over his firearms because of those domestic circumstances.

37. [NOT FOR PUBLICATION]

38. The Tribunal is satisfied the Applicant may not be able to exert the requisite control over his firearms because of his domestic circumstances without the condition. The condition imposed on the Applicant’s firearms licence by the Commissioner is a proportional response to address the identified risk to public safety.

39. The Tribunal agrees with the submission of the Commissioner that there are practical options available to the Applicant to continue to use his licenced firearms under his current licence, such as safely storing his firearms elsewhere. The Applicant’s concerns and any potential inconvenience he may experience as a result of the condition are not sufficient to override the need for the condition.

40. In all the circumstances the Tribunal is satisfied there is a real risk to public safety as a result of the characteristics of the Applicant’s domestic circumstances, such that it is not in the public interest for the Applicant to hold a firearms licence without the condition.

41. It follows that the correct and preferable decision is to affirm the decision of the Commissioner to impose the condition on the Applicant’s firearms licence.

Order

1. The decision under review is affirmed.

2. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 other than to the Tribunal and Respondent, publication or broadcast of:

1. the contents of exhibits CR9, CR10 and CR11 received in evidence by the Tribunal on 6 June 2024 is prohibited;

2. any part of the evidence given before the Tribunal and submissions made to the Tribunal at the confidential hearing on 6 June 2024, including all recordings, whether written, electronic or aural of that hearing is prohibited; and

3. any part of any paragraph of these reasons which commence with [NOT FOR PUBLICATION] other than the words in those brackets is prohibited.

**********

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: 31 July 2024