Thomson v Commissioner of Police, NSW Police Force

[2025] NSWCATAD 66

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Thomson v Commissioner of Police, NSW Police Force [2025] NSWCATAD 66

Hearing dates:

14 February 2024

Date of orders:

13 March 2025

Decision date:

13 March 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Seymour, Principal Member

Decision:

(1)   Decision under review set aside.
(2)   The Category AB firearms licence is to be restored to the Applicant.

Catchwords:

ADMINISTRATIVE LAW – administrative review – firearms licence – licence revocation – contravention of firearms legislation – unauthorised use - discretion - public interest

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Firearms Regulation 2017

Cases Cited:

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

Commissioner of Police v EMB [2021] NSWCATAP 63

Commissioner of Police, NSW Police v Hogan [2024] NSWCATAP 77

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police [2013] NSWADTAP 16

Cusumano v Commissioner of Police, NSW Police Service [2011] NSWADT 50

Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117

Kopco vCommissioner of Police, New South Wales Police Force [2018] NSWCATAD 124

Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315

Lando v Commissioner of Police [2021] NSWCATAD 8

Lee v Commissioner of Police [2020] NSWCATAD 144

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

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

Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41

Rial v Commissioner of Police, NSW Police Force [2023] NSWCATAP 162

Shi v Migration Agents Registration Authority [2008] HCA 31

Sullivan v Civil Aviation Authority (2014) 22 FCR 555 Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10

Tannous v Commissioner of Police [2011] NSWADT 116

Ward v Commissioner of Police [2000] NSWADT 28

Watkins v Commissioner of Police, NSW Police [2006] NSWADT 276,

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

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Barry Thomson (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Applicant (Self-Represented)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2024/00402467

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. The Applicant held a firearms licence under the Firearms Act 1996 (Firearms Act) in Category AB (the Firearms Licence). The Firearms Licence was issued on 9 August 2023 for a 5-year period. The permitted genuine reasons for the Applicant possessing and using firearms under the Firearms Licence are target shooting (member of an approved shooting club) and recreational hunting/vermin control.

2. On 29 August 2024 the Respondent made a decision to revoke the Firearms Licence, because the Applicant had used a firearm for personal and property protection, which was not a permitted genuine reason for having the Firearms Licence (the Revocation Decision).

3. The Applicant sought internal review of the Revocation Decision. On 9 October 2024 the Respondent’s internal review affirmed the original decision. The Applicant now seeks review by the Tribunal of the Revocation Decision.

Relevant Legislation

4. The Respondent relies on two bases for revocation of the Firearms Licence.

5. The first basis for revocation is the Applicant’s contravention of the firearms legislation as follows:

1. s 24 (2)(b)(ii) of the Firearms Act – a licence may be revoked if the licensee contravenes any provision of the Firearms Act or the Firearms Regulation 2017 (Firearms Regulation), whether or not the licensee has been convicted of an offence for the contravention;

2. s 7A(2) of the Firearms Act – offence of unauthorised possession or use of firearms - a person using a firearm for a purpose otherwise than in connection with the purpose established by the person as being the genuine reason for possessing or using the firearm is guilty of an offence; and

3. s 12 (2) of the Firearms Act – an applicant does not have a genuine reason for possessing or using a firearm if the applicant intends to possess or use the firearm for personal or property protection.

6. The second basis for revocation is that the Applicant holding the Firearms Licence is not in the public interest:

1. s 24(2)(d) of the Firearms Act – a licence may be revoked for any other reason prescribed by the regulations; and

2. clause 20 of the Firearms Regulation – it is not in the public interest for the licensee to hold the licence.

7. The Revocation Notice referred to section 24(2)(b)(iii) of the Firearms Act (contravention of any condition of the licence), and clause 20 of the Firearms Regulation. It did not reference section 24(2)(b)(ii), though it did state the firearm had been used for a reason outside of the genuine reason for the licence. The Internal Review decision only referenced section 24(2)(b)(ii) of the Firearms Act, as did the Commissioner’s representative’s submissions before the Tribunal. No separate arguments were made in relation to section 24(2)(b)(iii) of the Firearms Act and no distinction was drawn between the different heads of power in section 24(2)(b). The decision is therefore considered on the basis of section 24(2)(b)(ii) and clause 20, not section 24(2)(b)(iii).

Role of the Tribunal

8. The Tribunal has administrative review jurisdiction to review the Respondent’s revocation of the licence pursuant to s 75 of the Firearms Act, s 9 of the Administrative Decisions Review Act 1997 (ADR Act) , and s 30 of the Civil and Administrative Tribunal Act 2013 (CAT Act).

9. In determining an application for administrative review, the Tribunal is to decide what “the correct and preferable decision” is, having regard to the material before it (s 63(1) of the ADR Act). In doing so the Tribunal may exercise all 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 Tribunal is to make its own decision and there is no presumption that the decision of the Commissioner is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357.

10. 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 Respondent but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31; Tannous v Commissioner of Police [2011] NSWADT 116 at [25].

11. 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.

12. The Tribunal is required to base its findings of fact on logically probative material: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62 and 68; and Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 at [5]-[8], [15]-[17]. There is no burden or onus of proof on either party: see Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28]-[34].

Material before the Tribunal

13. The Applicant relied on:

1. Application for Review filed on 30 October 2024 with attached Grounds of Appeal (Exhibit A1);

2. Material filed on 13 December 2024 including a Statement of the Applicant dated 12 December 2024 (Exhibit A2); and

3. Written submissions filed on 27 January 2025, in reply to the Respondent’s submissions (Exhibit A3).

14. The Respondent relied on:

1. Documents lodged pursuant to s 58 of the ADR Act, including the original decision and internal review decision (Exhibit R1) (Section 58 Bundle); and

2. Written submissions filed on 28 January 2025 (Exhibit R2).

15. The Respondent called no oral evidence, instead relying on the documentary evidence in the Section 58 Bundle. The Applicant adopted his Statement dated 12 December 2024 and was cross-examined. Both parties made oral submissions at the hearing.

16. The Applicant acknowledges he contravened the Firearms Act. However, he submits that his conduct was out of character given his long unblemished history, it was a single incident not posing a material risk to public safety, he has demonstrated understanding and genuine contrition and will not repeat the conduct. He submits that the outcome of revocation of the licence is unduly harsh in the circumstances.

17. The Respondent submits that the Applicant’s conduct in the single incident was a very serious breach of the Firearms Act, as he intended to protect the safety of himself, his wife and his property. The Respondent further submits that the Tribunal cannot be satisfied the Applicant will not repeat the behaviour and that there is virtually no risk to public safety if the Applicant’s firearms licence is reinstated.

Consideration and findings

18. The Respondent’s written submissions referred to the Respondent’s Internal Review decision, which cited two events in making the Revocation Decision:

1. in October 2023, the Applicant’s storage safe was not secured to the floor with sufficient bolts, which was discovered by Police during a routine safe storage inspection; and

2. on 15 March 2024, the Applicant reported to Police an incident on his property whereby he fired shots into the air to frighten off trespassers (the 15 March 2024 Incident).

19. The Respondent confirmed that in the proceedings before the Tribunal, it did not rely on the event relating to the storage safe as a basis for revocation. Accordingly, the only relevant incident for consideration by the Tribunal was the 15 March 2024 Incident.

Contravention of Firearms Legislation

20. The Respondent submitted that the facts of the 15 March 2024 Incident were largely agreed. The Applicant reported what had occurred at around 1.30am on 15 March 2024 to the police later that same day. Police attended his property and the Applicant consented to a walk through on his property of the incident, which was recorded. The COPS event report of the walk through, contained in the Section 58 Bundle, is instructive as to the sequence of events. The Applicant was awoken by the sound of his dogs barking and went to his back sliding door with a torch:

…[the Applicant] sighted a male in a grey hoodie looking around his motor vehicle. [The Applicant] has shone his torch directly at the male and he has turned and ran to the fence, climbed through it and ran to the roadway boundary fence through the ploughed paddock, climbed the fence and got into a vehicle that has made a u turn and headed west…

[The Applicant] returned to his home and waited inside for about 10 or so minutes, then became worried persons might still be in the area he went to his gun safe, unlocked it and got out his double barrel shot gun, loaded it walked to the back door and fired two shots into the air, hoping this would deter the trespassers from returning to his home, [the Applicant] did this for the noise of the firearm not to harm anyone, this [sic] been the reason he shot in the air from his back door.

[The Applicant] went on to say if he was still able to crack a stop [sic] whip he would’ve used it to make the noise hoping to deter anyone from returning to his property.

[The Applicant] is 77 years of age and of sound mind, but it is understandable that he is not able to crack a stock whip any more due to the quick action and movement that is required by the shoulder to ensure the whip will crack.

21. While it is not stated in the above chronology of the walk-through, the COPS event report also separately states that the Applicant fired another 2 shots 10 minutes later – making a total of 4 shots (2 lots of 2 shots). The Applicant confirmed this under cross-examination, that after a further 10 – 15 minutes he put two more shots in the air as a ‘scare tactic’.

22. In its Internal Review decision, the Respondent noted the Applicant’s ‘preparedness to use firearms for the purpose of scaring intruders from [his] property’. The decision maker concluded that the Applicant’s actions in firing his weapon clearly contravened section 7A(2) of the Firearms Act. The Applicant’s licence was issued solely for the genuine reasons of target shooting based on club membership and recreational hunting/vermin control based on permission to shoot on rural land. Further, section 12(2) of the Act clearly states that a person does not have a genuine reason if they intend to possess or use a firearm for personal protection, the protection of any other person, or to protect property.

23. The Applicant admitted that he used the firearm to fire warning shots to deter trespassers who he observed on his property near his vehicles from returning to his property. He stated in a letter to the Respondent dated 9 April 2024 that he fired the shots ‘just to let them know not to come back as my wife and myself being elderly feared for our safety’.

24. The Tribunal finds that the Applicant’s use of the firearm in the 15 March 2024 Incident was for personal protection, the protection of any other person, or to protect property. This was not within the genuine reasons for possessing or using a firearm authorised by his Firearms Licence and thus contrary to section 7A(2) of the Firearms Act. The Applicant has therefore contravened a provision of the Act or regulations, and his licence therefore ‘may’ be revoked pursuant to section 24(2)(b)(ii) of the Firearms Act.

Exercise of discretion – section 24(2) of the Firearms Act

25. In Watkins v Commissioner of Police, NSW Police [2006] NSWADT 276, the Tribunal considered the exercise of the discretion to revoke a licence pursuant to section 24(2)(b)(ii) of the Firearms Act:

33 It is clear from the use of the word “may” in each section 24(2)(b)(ii) of the Firearms Act 1996 and Regulation 17 of the Firearms Regulation 1997, that the Commissioner is given a discretion to revoke a licence and compulsory revocation is not required (as is provided by other sections in the Act). For example, in Haynes v Commissioner of Police, New South Wales Police Service [2001] NSWADT 52, the Tribunal confirmed the distinction in Botrosv Commissioner of Police, New South Wales Police Service [2000] NSWADT 6 between the exercise of mandatory refusal of an application and the discretionary power that relates to the revocation of a licence, in that revocation involves the exercise of judgment.

26. The Respondent’s submissions specifically addressed the exercise of discretion in respect of the second basis relied upon for revocation, the public interest ground under section 24(2)(d) of the Firearms Act and clause 20 of the Firearms Regulation. The Respondent submits it is not in the public interest for the Applicant to hold a Firearms Licence, because the Tribunal cannot be satisfied that there is ‘virtually no risk’ to public safety if his licence is restored.

27. The Appeal Panel considered the approach to section 24(2) in Commissioner of Police, NSW Police v Hogan [2024] NSWCATAP 77, noting as follows:

56 Further, for the reason that a licence may be revoked where the person is ineligible to obtain a new licence (as is the case here), it is not sufficient justification, for the maintenance of the privilege, that they satisfy other tests for being a licensee such as the fit and proper person test or that it would not be against the public interest. The architecture of the provisions indicates that being ineligible for a new licence, of itself, is sufficient for the appellant to revoke the licence. Therefore, there must be some justification for not regarding the conviction as sufficient basis for revocation.

28. The facts in Hogan involved the licensee being charged and convicted of a firearms offence, and consideration of the exercise of the discretion under section 24(2(a) to revoke the licence prior to its expiry date. It was not disputed that once the licence expired, a licence must not be issued to Mr Hogan within 10 years of the conviction. In contrast, the Applicant in the present case was not subject to any charge or conviction in respect of the contravention that occurred in the 15 March 2024 Incident. There would be no similar impediment to the Applicant applying to the Commissioner for a fresh firearms licence at any time. However, the observations about the different bases of revocation under section 24(2) provides guidance about the approach in the present case.

29. The exercise of discretion under section 24(2)(b)(ii) of the Firearms Act, to revoke a licence because of a contravention of the Firearms legislation, should be considered separately to the public interest ground in section 24(2)(d). The Respondent submits that in addition to section 24(2)(b)(ii), it is not in the public interest for the Applicant to continue to hold a firearms licence because of the threat to public safety: s 24(2)(d) of the Firearms Act and cl 20 of the Firearms Regulation. This is the public policy consideration identified by the Respondent, which is therefore relevant to the Tribunal’s exercise of discretion under both limbs of section 24(2) - section 24(2)(b)(ii) and section 24(2)(d). In this respect, there is a degree of overlap of the considerations that arise in respect of the two bases of revocation relied upon by the Respondent.

30. In respect of both bases of revocation, the Tribunal must exercise its discretion in a manner that promotes the principles and objects of the Firearms Act: Cusumano v Commissioner of Police, NSW Police Service [2011] NSWADT 50 at [23]. The underlying principles of the Firearms Act are set out in s 3 and relevantly 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…

31. The community’s interests take precedence over the private interests of an individual: Rial v Commissioner of Police, NSW Police Force [2023] NSWCATAP 162 at [30]; Lee v Commissioner of Police [2020] NSWCATAD 144 at [94]. The interest of an applicant in obtaining or retaining a firearms licence is subordinate to that consideration: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276.

32. In Watkins, the Tribunal adopted the following approach to the exercise of discretion under section 24(2)(b)(ii) of the Firearms Act:

34 In Lynch v Commissioner of Police, New South Wales Police (GD) [2006] NSWADTAP 43 the Appeal Panel stated at paragraph 37:

“Once the circumstance to which s 24(2)(b)(ii) is directed (contravention) is present, the Commissioner ‘may’ revoke the licence. No guidance is given in the provision as to what factors might be relevant. Without seeking to be exhaustive, relevant factors would, we think, include the gravity of the contraventions, any history of contraventions, mitigating circumstances and general public policy considerations.”

33. A contravention has been found to be present. The Tribunal now turns to consider the factors relevant to the exercise of discretion under both limbs of section 24(2).

Nature and gravity of the contravention

34. The Applicant’s Statement and evidence given under cross-examination about the sequence of events did not relevantly materially depart from the facts as set out in the COPS event report. The fact that there were two sets of shots fired, the second two a short period of time after the first two, was a matter to which the Respondent gave weight in making its Internal Review decision to confirm the revocation of the Firearms Licence. The reviewer considered the actions of the Applicant were ‘reckless’ and ‘irresponsible’.

34. The Applicant’s evidence was that the firearm he selected was a shotgun with a light shotgun cartridge used for clay target shooting containing pellets not projectiles. When he fired into the air, the pellets would fall into his lawn not in close proximity to any neighbour or the highway where the vehicle of the trespassers drove away. There was no contrary evidence adduced by the Respondent in this regard.

35. At 11.40am on Friday 15 March 2024, the police attended the Applicant’s property as a result of the self-report by him of the 15 March 2024 Incident earlier that same morning. The police did not seize the Applicant’s firearms or suspend his Firearms Licence for any contravention of the firearms legislation. This was for the following stated reasons (recorded in the COPS event report):

Police did not seized [sic] the firearms for the following reasons:

[The Applicant] did not take his firearm out of the safe and confront the male, he took his torch.

[The Applicant] used his yapping dogs to force the male away from his property, not his firearm.

[The Applicant] ensured the male had left his property and waited in his house for ten minutes then walked to the back door and fired two rounds in the air (nil offence, this occurred on private rural property in safe direction).

[The Applicant] attempted to report the matter to Police but was confused by the phone system.

[The Applicant] never had any intent to use his firearm to protect himself or harm and [sic] other person.

[The Applicant] firearms were stored as per the Act, on attending the location and he was open and honest about his actions and stated his firearms are always stored safely due to the fear of persons breaking into his house and gaining access to them and the fact his grandchildren visit as well.

37. The Applicant’s evidence in his Statement is that the officer attending stated that as he was on his rural property there was not any charge to be laid for the use of the firearm. Further, the officer advised the Applicant that he should not have conducted himself the way he did on that evening, with which the Applicant says he agreed. The Applicant’s evidence, of the verbal warning given to him by police about compliance with the firearms legislation, was not contradicted. No further action was taken by the attending police officers.

38. It is clear from the COPS event report, the Applicant’s Statement and oral evidence that the trespassers were not on the Applicant’s property and had departed before the first two shots, and even longer before the second two shots. The Applicant’s evidence that he fired into the air, away from the direction of the departed trespassers after they left the property, is not contradicted. The COPS event report corroborates that the attending officers agreed that the Applicant had ‘ensured the male had left his property’, and that the shots were fired ‘in a safe direction’.

39. The COPS event report then records that a subsequent decision was made by the Respondent’s licensing area to suspend the Applicant’s Firearms Licence. This decision was made at 7.55pm on Friday 15 March 2024. The reason for this decision was stated to be as follows:

..the Applicant has been upfront and honest with reporting the matter to police however he has used his firearms outside his genuine reasons and has admitted to an act of firing warning shots to ensure that persons would not return to his property, his actions are not that of a reasonable person and he is not fit and property [sic] to hold a firearms licence’.

40. A Notice of Suspension of the Firearms Licence was subsequently issued by the licensing area on Friday 15 March 2024, stated to be effective from the next day, Saturday 16 March 2024. However, the COPS event report states that it was not until 9.56am on Sunday 17 March 2024 that police attended the Applicant’s property and seized his firearms and ammunition. In a letter from the Applicant to the Respondent dated 9 April 2024, he states that the Notice of Suspension was issued to him on 17 March 2024 at the same time as the two police officers confiscated his firearms.

41. Accordingly, the Applicant retained the use of his firearms and was not made aware of the suspension of his Firearms Licence for over 36 hours after the time these decisions were made by the Respondent’s licensing area. These actions are not consistent with an opinion that the Applicant presented an imminent or serious risk to public safety. They are consistent with the opinion that the attending police officers appear to have held, that there was no risk of allowing the Applicant to retain his firearms and his Firearms Licence following the 15 March 2024 Incident.

42. The attending officers considered the appropriate action in the circumstances was to educate the Applicant about his obligations relating to unauthorised use. They did not hold sufficient concern about the Applicant’s actions in the 15 March 2024 Incident to take any action beyond a verbal warning to him. These officers had personal contact with the Applicant when he self-reported the incident at the police station, and during the subsequent walk through on his property. Their opinion is given weight by the Tribunal.

43. The circumstances of the contravention in the present case are relevant to the exercise of the discretion under this limb of section 24(2). No charge was in contemplation. Further, the attending police officers did not consider that any action was required arising from the 15 March 2024 Incident to promote public safety, beyond an explanation to the Applicant about his obligations under the Firearms Legislation and a warning not to engage in such conduct in the future. The Tribunal considers that these circumstances provide justification for not regarding the contravention as sufficient basis for revocation under section 24(2)(b)(ii).

44. The Respondent relied upon the decision of Lando v Commissioner of Police [2021] NSWCATAD 8, which also involved the contravention of s 7A(2) of the Firearms Act. The contravention was similarly a first firearms incident. The Tribunal in Lando framed the relevant question as whether the contravention of the firearms legislation warranted revocation of the Firearms Licence.

45. Mr Lando was found to be responding to an imminent threat made by his stepson (including a threat to kill) directed at Mr Lando and his wife. The Tribunal found that in response to these threats Mr Lando ‘took drastic and exigent action to arm himself and secure the property and plan an escape’ in anticipation of his stepson attending the property to carry out his threats. He had one gun with him, while hiding in a shed with his wife. Mr Lando’s stated intention was to use the firearm if he and his wife were detected by his stepson, by firing into the air. When officers attended Mr Lando’s property, they also observed a second firearm on a chair unattended and loaded. The nature of the incident and overall course of conduct of Mr Lando were influential in the Tribunal’s exercise of discretion not to restore the licence. It is noted that the police seized all firearms on the morning they attended Mr Lando’s property and issued a Notice of Suspension of his firearms licence at the same time.

46. The 15 March 2024 Incident involved the Applicant firing shots into the air away from the direction the trespassers departed, well after the trespassers had left the Applicant’s property. He was not lying in wait with an armed firearm, nor did he have a further firearm unsecured in another location in anticipation of the trespassers returning, at the time the police attended. Further, the actions taken by the attending police officers are entirely different in terms of the response to managing the perceived risk to safety. Each case is decided on its own facts. The Tribunal considers that the incident involving the Applicant and his conduct in the present case is materially different to Lando.

Applicant’s history and mitigating circumstances

47. The Applicant is 77 years of age. He has held a firearms licence continuously since 1998. The Applicant has no prior contraventions of the firearms legislation, despite the Applicant’s long history of holding a firearms licence and possessing firearms. The Applicant has no criminal history of any kind.

48. The Respondent makes no submission, and there is no evidence, that the Applicant has any physical or mental incapacity. The police officers attending the Applicant’s property on 15 March 2024 noted that the Applicant was ‘of sound mind’. The only incapacity noted was a physical one, that due to his age it was ‘understandable he is not able to crack a stock whip any more due to the quick action movement that is required by the shoulder to ensure the whip will crack’.

49. The Applicant has not sought to deny the contravention. He self-reported the 15 March 2024 Incident to police the same day. The COPS event report notes his honesty, co-operation with police and admissions about his actions. The Applicant acknowledged in his written Statement dated 10 December 2024 as follows:

I concede this [firing into the air after the trespasser had departed] was wrong but not in any harm to any person as it was my own garden lawn for which the pellets landed. The pellets not projectile would be like rain drops falling.

Firing shots into air, I would not and can assure you I will not act irresponsible again in my lifetime a mistake I can’t go back and fix but, I will never again act in such a way ever!

50. The Applicant also demonstrated to the Tribunal in his sworn testimony his understanding that his conduct contravened the firearms legislation, and how it did so. While at the time he thought there was ‘no harm’ in firing into the air using the pellets after the trespassers had left the property, he realises that his actions were ‘foolish and a breach of the firearms legislation’. He said that he would not fire again. The Applicant impressed the Tribunal as a frank and honest witness.

51. The Applicant has been without the Firearms Licence since 17 March 2024 when he was notified that it was suspended and then later revoked. As at the date of this decision, this is a period of almost 12 months. The Applicant gave evidence of the severe impact on him of the suspension and revocation, particularly in respect of clay target shooting competition participation, his sporting hobby, and the reduction of feral animals on his and his son’s rural properties. The Applicant’s Statement noted as follows:

This will not happen again if my licence is returned to me as this feels like a life sentence for which it is, the worst thing in my life for which I am responsible, a sentence as in my senior years as I cannot enjoy my sport of clay target competition or the welfare of animals when needed or feral pig control on my rural holding destroying crops.

52. It is accepted by the Tribunal that the detrimental impact of a revocation on an individual is not determinative in the exercise of discretion to reinstate a licence. The possession of a Firearms Licence is a privilege that may be forfeited regardless of the impact on the holder. While the Applicant has a genuine need to possess and use firearms, a person’s individual interest in holding a licence must be subordinate to the public interest in ensuring public safety. The licensing scheme is not punitive, but protective of the public.

53. However, the effect on the Applicant of the loss of his licence is relevant to the Tribunal’s actual persuasion about the Applicant’s genuine acceptance of his wrongdoing and thus the likelihood of a further contravention by him. This in turn impacts the assessment of risk to public safety and the extent to which such risk continues. The Tribunal considers that this evidence goes to whether, to use the Respondent’s words, the Applicant may be ‘minded to repeat such behaviour in the unfortunate event that trespassers return to his property’.

54. The Tribunal considers that, on the evidence before it, the Applicant would not be so minded. He has shown in his sworn evidence his understanding that firearms must not be used for protection and using a firearm for such unauthorised purpose is serious, his regret for his actions in firing the shots, and his commitment to never do so again. The Applicant’s honesty and integrity, as supported by the unchallenged character evidence adduced (discussed below), informs the Tribunal’s assessment that his acknowledgements and commitments are genuine and dependable.

Character References

55. The Applicant provided a number of recent written personal character references, which were before the Tribunal. The character evidence adduced by the Applicant is of a particularly strong and persuasive nature. Three referees were former long serving senior police officers of the NSW and Queensland police forces, and one referee a solicitor in the Applicant’s local community. All four referees had known the Applicant for lengthy periods ranging from 20 to 40 years. Relevant parts of their references are summarised as follows:

1. Mr S Bradshaw, APM. JP, Assistant Commissioner of Police for NSW with 41 years’ service (retired), states that he has known the Applicant all his life and his personal knowledge of the Applicant’s character goes back to childhood. He ‘confidently states that [the Applicant] has the highest ethics and has an exemplary character’. Mr Bradshaw states that he is ‘aware of the current circumstances that [the Applicant] finds himself in with regards to his firearms licence’. He further notes:

Whilst I do not condone [the Applicant’s] action that led to his firearm suspension, I make the observation that [the Applicant] is one of the most truthful persons that I have been associated with, and combined with his unfortunate action it is his truthfulness that has contributed to his current dilemma. That is as it should be, unfortunately, that is not the norm in today’s society. I have no hesitation in recommending Barry as a person of the highest integrity’.

2. Mr M Keys, Inspector of the Queensland Police Service with 40 years’ service (retired), states that he has known the Applicant for 36 years. He states his belief that the Applicant’s ‘dedication, work ethic, honesty and integrity is unquestionable’. Mr Keys notes it is not appropriate for him to provide no comment regarding the facts of the matter for which the Applicant requested the reference. However, he is aware of the circumstances of the Applicant with regards to his firearms licence, and the alleged conduct is in total contrast to the character described.

3. Mr B Walsh, Barrister (retired) and former member of the NSW Police Force, states that he has known the Applicant for 20 years. He states he is aware of the circumstances that led to the suspension of the Applicant’s firearms licence. He gives his opinion about the likelihood of further contravention by the Applicant:

I have spoken to [the Applicant] at length about the circumstances that led to the suspension of his firearms licence. [The Applicant] now regrets his actions and is remorseful in the extreme. I note that [the Applicant] immediately reported his conduct to the local police station. That action was typical of the [the Applicant] I know – an honest and up front individual. Had [the Applicant] not self-reported his conduct, in all probability, his firearms licence would not have been suspended.

Initially, [the Applicant] was upset that his firearms had been removed by police. However, he now realises the gravity of the situation and the need for police to take precautionary action. I am more than satisfied that [the Applicant] now has a proper insight into his conduct and the need for police to temporarily suspend his licence. I have every confidence that [the Applicant] will never, in the future, breach the firearms legislation.

…

I am fully satisfied that [the Applicant] is a fit and proper person to hold a firearms licence. Given my background as a professional police officer and as a barrister, I would not in any way write this reference if I thought, for one moment, that [the Applicant] was not a fit and proper person to hold a firearms licence. The temporary suspension of his licence for at least six months has been a salutary lesson and a not insignificant punishment’.

4. Mr G Johnson, Solicitor (retired), states that he has known the Applicant for over 30 years. He indicates that he is aware of the incident that has given rise to the request for a reference, noting that the Applicant ‘fully acknowledges that his actions were inappropriate, and that firing his shotgun, in hindsight, was clearly ill considered. His actions, fortunately, posed no risk to anyone. [The Applicant’s] attendance at the police station, after the incident, would strike me, to be in accordance with his frank and open honesty’. He gives his opinion about the likelihood of further contravention by the Applicant:

Despite this ill considered action, he would never act in this way in the future. I would hope, that Barry’s lifetime of good deeds, can balance a moment of foolishness, and that he can retain his fit and proper status, and retain his firearms licence. I am sure [the Applicant] will use his experience to inform and educate the many people he has contact with, of the necessity to carefully consider the whole gamut of responsibilities, which attach to the holding of a firearms licence.

56. Each of these four referees state they are aware of the circumstances of the contravention by the Applicant of the firearms legislation. They variously attest to the Applicant’s truthfulness and integrity, his acknowledgement of and insight into the inappropriateness of his conduct in the 15 March 2024 Incident, and their confidence that the contravening conduct will never recur. None of the referees were required for cross-examination. The Tribunal has given weight to this evidence in light of the referees’ antecedents, their awareness of the specific circumstances of the Applicant’s contravention, and consequent opinions of the unlikelihood of the Applicant engaging in further conduct.

Public policy considerations – public interest

57. The Respondent submits that the Applicant holding a Firearms Licence is contrary to the public interest, as there is an ongoing threat to public safety which outweighs the Applicant’s privilege in holding the licence. The Respondent contends that there is a real and appreciable risk that the Applicant will engage in similar conduct in the future and not report it, based on the following factors:

1. The Applicant fired four shots over a 10-minute period, indicating a continuance of the contravening conduct after a short intervening period;

2. The failure of the Applicant to wait for police to attend which would have been the appropriate course of action, when on his own evidence he believed that the police had been called by others, and the trespassers had already driven away when he fired the shots into the air;

3. The Applicant’s statement made in his letter to the Respondent dated 9 April 2024 that he ‘did not see any harm at firing into the air as I have had a lifetime with firearms and the safety of such’ indicates that he does not acknowledge the conduct was unsafe and of a serious nature;

4. The Applicant’s statements that there is a continuing concern in the local community of the risk posed by trespassers (described by the Applicant as ‘ferals’) of theft and damage to property; and

5. The Applicant will not report any future contravention to police given statements he made that he regretted his honesty in reporting to police.

58. The Internal Review decision of the Respondent conceded that the Applicant did not fire directly at the intruders. However, the decision maker considered that ‘had the intruders returned the circumstances could have resulted in a different outcome’ and concluded that ‘there is substantial cause to believe that [the Applicant’s] ‘warning shots’ placed the intruders, and any person or animal who was in the vicinity, of considerable risk of harm’.

58. While the Respondent acknowledged that the revocation was based on a single incident, that incident related specifically to firearm use which involved ‘really serious conduct’. Based upon this, while the Respondent further acknowledged that the conduct was ‘out of character’ for the Applicant, the factual matrix meant that public confidence would nevertheless be affected by the incident, justifying revocation of the licence.

59. “Public interest” is not defined in the Firearms Act. In Comalco Aluminium (Bell Bay) Ltd v O’Connor and Others (1995) 131 ALR 657, the Industrial Relations Court stated at 681:

The purpose of the reference to ‘public interest’ is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner’s consideration.

61. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], the Appeal Panel considered that the ”public interest” is an inherently broad concept providing the decision maker with the ability to have regard to a wide range of factors in exercising the discretion to refuse or revoke a firearms licence or permit. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] the Appeal Panel said:

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.

62. The expression is to be considered in context, informed by the underlying principles and objectives of the Firearms Act, and having regard to the interests of the whole community: Commissioner of Police v EMB [2021] NSWCATAP 63 at [60].

63. Section 3 of the Firearms Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. In Ward v Commissioner of Police [2000] NSWADT 28 at [27-28] the Tribunal said that in terms of public safety:

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

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

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

65. The question of risk is not to be approached in an absolute or mechanistic way, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [64] – [66]; Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315 at [62]-[64]. The question is whether there is in all the circumstances a real and appreciable risk to the public: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 at [74]; Kopco vCommissioner of Police, New South Wales Police Force [2018] NSWCATAD 124 at [58].

66. The Tribunal has considered the nature of the Applicant’s contravening conduct in the 15 March 2024 Incident. A charge or conviction is not required to found a revocation, however the absence of such is relevant to the assessment of the seriousness of the contravening conduct. The Respondent submitted that the contravention was ‘really serious’. However, while the conduct may fairly be characterised as serious, the Tribunal does not consider it is at the most serious or ‘really serious’ level. Certainly, the police officers attending the property to conduct the walk through did not assess it as being at a ‘really serious’ level, given their conclusion at that time not to take any further action in respect of the Applicant’s firearms or firearms licence, save for verbally warning him against such conduct in the future. Further, the suspension of the Applicant’s Firearms Licence and seizure of his firearms did not occur until 36 hours after the attendance of police officers at his property. None of these actions indicate that the police formed a view that there was an imminent or ongoing perceived threat to public safety posed by the Applicant’s possession of firearms and his Firearms Licence.

67. The Applicant’s self-reporting to police, his cooperative interactions with police, and his otherwise unblemished record are also relevant factors in the exercise of discretion. The Tribunal considers that the combined weight of the views of the attending police officers, the sworn evidence of the Applicant, and the opinions in the character references, supports a finding that on the balance of probabilities he is highly unlikely to offend again. The Applicant demonstrated to the Tribunal’s satisfaction that he has learnt his lesson, including arising from the serious adverse impacts on his life of the loss of use of the firearms for 12 months. He now understands and recognises the serious nature of his non-compliance with the firearms legislation in the impermissible use for protection by firing ‘warning shots’ in the air. The references attesting to his honesty and integrity support that he will not engage in such conduct in the future, as opposed to simply not reporting such conduct. While the Tribunal can never be satisfied that there is no risk to public safety, it considers that there is virtually no risk the Applicant will again engage in the contravening conduct in similar circumstances.

68. On the totality of the evidence, the Tribunal is therefore satisfied that:

1. there are circumstances justifying that the Applicant should retain his Firearms Licence despite the contravention in the 15 March 2024 Incident (pursuant to section 24(2)(b)(ii)); and

2. the public would now be comfortable with the Applicant again holding a firearms licence (pursuant to section 24(2)(d)).

69. The Tribunal finds that the discretion in s 24(2) should be exercised in favour of setting aside the Revocation Decision.

Conclusion

70. For the reasons set out above, the correct and preferable decision is to set aside the decision under review.

Order

1. The decision of the Respondent to revoke the Applicant’s Category AB firearms licence is set aside.

2. The Category AB firearms licence is to be restored to the Applicant.

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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: 13 March 2025