Civil and Administrative Tribunal New South Wales Medium Neutral Citation: van de Haar v Commissioner of Police [2021] NSWCATAD 345 Hearing dates: 21 October 2021 Date of orders: 16 November 2021 Decision date: 16 November 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: L Andelman, Senior Member Decision: The decision of the respondent is affirmed Catchwords: LICENSING - firearms licensing - issuing of licence - public interest - public confidence in the licencing regime Legislation Cited: Civil and Administrative Tribunal Act 2013 Firearms Act 1996 (NSW) Firearms Act 1996 (Vic) Personal Safety Intervention Orders Act 2010 (Vic) Cases Cited: Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Constantin v Commissioner of Police [2013] NSWADTAP 16 Cusumano v Commissioner of Police [2001] NSWADT 50 Kogias v Commissioner of Police [2020] NSWCATAD 297 Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 Category: Principal judgment Parties: Taylor van de Haar (Applicant) Commissioner of Police (Respondent) Representation: Counsel: E Jones (Respondent) Solicitors: Taylor van de Haar (Self represented) Crown Solicitor (Respondent) File Number(s): 2021/00214091 Publication restriction: NA REASONS FOR DECISION 1. This is an application by Mr van de Haar seeking a review of the decision of the Commissioner of Police to refuse to issue a category AB firearm licence on 23 November 2020. Mr van de Haar sought an internal review of the decision on 10 December 2020. The internal review was not completed within 21 days and on 26 July 2021 Mr van de Haar made an application to the Tribunal on 26 July 2021. The Commissioner did not oppose the out of time filing of the application. 2. The reason that the Police Commissioner gave for refusing Mr van de Haar's firearm application licence was that he was subject to an interim intervention order from 18 September 2017 and a final intervention order pursuant to the Personal Safety Intervention Orders Act 2010 (Vic) at the Geelong Magistrates Court on 25 September 2017, in force from 25 September 2017 and 1 February 2018. The legislative framework 1. Section 63 of the Administrative Decisions Review Act 1997 (ADR Act) provides that, in determining an application for review, the Tribunal is to make the correct and preferable decision, having regard to the material before it, and any applicable written or unwritten law. 2. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (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: s 38(2) of the CAT Act. 3. The principles and objects of the Firearms Act 1996 (NSW) are set out in s 3 of the Act, relevantly: Principles and objects of this 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 ... (c) to facilitate a national approach to the control of fire arms. (2) The objects of this Act are as follows: ... (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms 1. The Firearms Act 1996 (NSW), in setting out restrictions on the issue of licences, provides, relevantly: 11 General restrictions on issue of licences ... (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. … (5) A lice nce must not be issued to a person who: … (c) is subject to an apprehend ed violence order or interim apprehe nded violence order or who has, at any time within 10 years before the application for the li cence was made, been subject to an apprehende d violence order (other than an order that has been revoked), 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. 1. Section 7(1)(a) and (b) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) defines intimidation to include conduct amounting to harassment of the person, or an approach to the person by any means that causes the person to fear for his or her safety. 2. Section 61(1) of the Personal Safety Intervention Orders Act 2010 (Vic) states: (1) The Court may make a final order if the Court is satisfied, on the balance of probabilities, that (a) the Respondent has (i) committed prohibited behaviour against the affected person and (a) is likely to continue to do so or do so again; and (b) the Respondent's prohibited behaviour would cause a reasonable person to fear for his or her safety; or (ii) stalked the affected person and is likely to continue to do so or do so again; and (b) the Respondent and the affected person are not family members; and (c) it is appropriate in all the circumstances of the case to make a final order. 1. Section 5 of the Personal Safety Intervention Orders Act 2010 (Vic) defines 'prohibited behaviour' as assault, sexual assault, harassment, property damage or interference, or making a serious threat. 2. Section 3(1)(c)(ib) of the Firearms Act 1996 (Vic) defines a person as a 'prohibited person' as a person who is subject to a final order under the PSIO Act or, in relation to a person, not more than five years have expired since the person was subject to such an order. 3. Section 17(1)(a) of the Firearms Act 1996 (Vic) states that: The Chief Commiss ioner must not issue a long arm or han dgun licence (a) if the applicant or any responsib le person in relation to the application is a prohi bited person. Evidence 1. In support of his application for review, Mr van de Haar provided a record by the Australian Federal Police evidencing a firearm licence that he held from 13 January 2010 to 13 January 2015. 2. Mr van de Haar was provided with an opportunity to give evidence under oath or affirmation and be subject to cross-examination from counsel for the Commissioner of Police. Mr van de Haar informed the Tribunal that he did not wish to be cross-examined. The Tribunal explained to Mr van de Haar that there was a difference between giving evidence and making submissions and if Mr van de Haar did not wish to give evidence, his factual assertions would be considered as a submission. 3. The Commissioner of Police relied on documents filed under s 58 of the ADR Act. Application for a firearm licence 1. On 18 November 2019, Mr van de Haar applied for a firearm licence in Categories A and B for a term of five years. Mr van de Haar sought the firearm licence for recreational hunting and vermin control at a rural property he owned or occupied. 2. On 23 November 2020, Mr van de Haar was notified that the application for a firearm licence was refused because he was subject to: 1. an intervention order made on 25 September 2017 pursuant to the Personal Safety Intervention Orders Act 2010 (Vic) at the Geelong Magistrates' Court on, in force from 25 September 2017 until 1 February 2018 in protection of Mr van de Haar's co-tenant. 2. an interim intervention order made on 19 September 2017 pursuant to the Personal Safety Intervention Orders Act 2010 (Vic) at the Geelong Magistrates' Court, in force from 18 September 2017 until 25 September 2017 in protection of Mr van de Haar's co-tenant. 3. an interim intervention order made on 19 September 2017 pursuant to the Personal Safety Intervention Orders Act 2010 (Vic) at the Geelong Magistrates' Court, in force between 18 September 2017 and 25 September 2017 in protection of Mr van de Haar's co-tenant's brother. 1. Mr van de Haar sought an internal review of the decision on 10 December 2020. The internal review was not completed within 21 days and, on 26 July 2021, Mr van de Haar made an application to the Tribunal. The Commissioner did not oppose the out-of-time filing of the application. Submissions Mr van de Haar's submissions 1. Mr van de Haar made submissions that he lived with a co-tenant (Ms Foster) in a shared household in 2017. He accused Ms Foster of being a psychopathic woman, that she was confrontational, that she sold his possessions, that she caused him to lose clients, and that she threatened him and took him to the Victorian Civil and Administrative Tribunal. He said that he was so stressed by Ms Foster's conduct that he was prescribed Valium. He admitted that he called Ms Foster some pretty nasty names but denied assaulting her brother or intimidating or threatening her. 2. Mr van de Haar agreed that an interim and final intervention order was made against him in protection of Ms Forster but said that she and her brother made applications for intervention orders after he made an application for intervention orders against them. Mr van de Haar claimed that the Magistrate told him that, as the offence was so minor, it would not affect his firearm licence. 3. Mr van de Haar appealed against the final intervention order. He had to wait in court for half a day. Mr van de Haar claimed that the Magistrate said that he would 'throw it out anyway' but that Mr van de Haar could not wait in court any longer due to work commitments and left before the matter was heard. 4. Mr van de Haar produced a record by the Australian Federal Police evidencing a firearm licence that he held from 13 January 2010 to 13 January 2015. The status is shown to be surrendered. Mr van de Haar submitted that the fact that he held the firearm licence without any concerns proved his safety in holding a licence and positive character. He said that he should not be precluded from holding a firearm licence as a result of 'being screwed over by this woman'. 5. At the hearing, Mr van de Haar also relied on a prepared chronology from the time he made the application for a firearm licence in New South Wales to the date he was notified of a hearing at this Tribunal, as well as a table he prepared titled 'summary of offences', which referred to alleged conduct by Ms Foster and her brother, who sought for an intervention order against him. Submissions by the Commissioner of Police 1. The Commissioner of Police provided written submissions and supplemented them orally at the hearing. The Commissioner relies on section 11(7) of the Firearms Act 1996 (NSW) and submited that the issue of the firearm licence to the applicant would be contrary to the public interest. 2. As a result of the intervention order, Mr van de Haar is a prohibited person pursuant to s 3(1) of the Firearms Act 1996 (Vic) and remains so for five years from the period of the intervention order being made, which is in February 2018. 3. The Commissioner referred to s 17 of the Firearms Act 1996 (Vic) which would make it an offence for Mr van de Haar to be granted a firearm licence. 4. The Commissioner referred to the similarity of the principles and objects of the Firearms Act 1996 (NSW) and the Firearms Act 1996 (Vic) and submited that it would be contrary to the principles of the legislation for Mr van de Haar to be granted a firearm licence as, under the Firearms Act 1996 (Vic), he is a prohibited person. 5. The Commissioner submitted that the Tribunal should proceed on the basis that the Magistrate, in granting an injunction, would have reached a satisfaction that Mr van de Haar's behaviour was prohibited behaviour, which may include serious threats or harassment, and that a reasonable person would apprehend that he was likely to continue the behaviour. 6. The Commissioner submitted that there was no transcript or record to support the submissions being made by Mr van de Haar that the Magistrate agreed to throw the case out or that it was too minor to impact on a firearm licence application or the assertions being made against his co-tenant. 7. It would be an oddity if, in New South Wales, Mr van de Haar was found not to pose a risk, where in Victoria there is a mandatory prohibition against him being issued with a firearm licence. Ultimately, the Commissioner submitted that, had Mr van de Haar applied for a firearm licence in Victoria, he would be a prohibited person and, as such, there should be consistency between the State jurisdictions, which would buttress the public confidence in the integrity of the licencing schemes between the States if a similar approach was taken in New South Wales so as not to circumvent consistency in approach. 8. The Commissioner submitted that the Tribunal should not accept the collateral attack made against Ms Foster and that Mr van de Haar's submissions seek to minimise his conduct. 9. The Commissioner submitted that the Tribunal should reject the assertions made by Mr van de Haar as to what was allegedly said by the Victorian Magistrates. Consideration 1. The Commissioner submitted that the Tribunal should uphold his decision to refuse to issue Mr van de Haar with a licence as it would be contrary to the public interest within the meaning of s 11(7) of the Firearms Act 1996 (NSW) because the Tribunal should treat the status of the intervention orders made in Victoria in the same way as if the intervention orders were made in New South Wales. 2. Had the intervention orders made against Mr van de Haar in 2017 been made under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), s11(5)(c) of the Firearms Act 1996 (NSW) would have precluded Mr van de Haar from being issued with a firearm licence in New South Wales. 3. An intervention order made pursuant to the PSIO Act is not considered in the same manner as an 'apprehended violence order' within the meaning of s11(5)(c) of the Firearms Act 1996 (NSW) even though the Crimes (Domestic and Personal Violence) Act 2007 (NSW) applies a similar test as that in the Personal Safety Intervention Orders Act 2010 (Vic) and the order applies to give similar effect, which is to ensure the safety of the affected person or preserve their property. 4. This is because the definition of 'apprehended violence order' in s4 of the Firearms Act 1996 (NSW) and cl 143(1) of the Firearms Regulation 2017 (NSW) does not include an order made under the PSIO Act. Public interest 1. The term 'public interest' is not defined in the Firearms Act 1996 (NSW) and the term is informed by the principles and objects of the Act. Cusumano v Commissioner of Police [2001] NSWADT 50 at [23]. Public interest is an inherently broad concept taking into account a wide range of factors. The public interest discretion operates in circumstances where the character ground is not relevant or on its own would not be sufficient to warrant a refusal of a licence. Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25] including public confidence in the administration of the licencing system. Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33]. 2. One of the underlying principles of the licencing regime is the protection of the public (see s 3(1) of the Firearms Act 1996 and Kogias v Commissioner of Police [2020] NSWCATAD 297 at [10]). There are licencing regimes across Australia in different States and Territories, and their underlying principles and objects are similar if not the same. The licencing regimes give paramount consideration to public safety. Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97. 3. Section 3(1)(c) of the Firearms Act 1996 (NSW) states that an underlying principle of this Act is to facilitate a national approach to firearms. In the exercise of the discretion given to the Commissioner and hence the Tribunal on review, regard may be had to the operation of firearm licencing regimes in other States, with a view to exercising the discretion in a manner that would provide cohesion and consistency across jurisdictions. 4. The effect of the licencing regime is not to punish. It is to protect the public. In identifying the risks to the public, it is relevant to consider the intervention orders or interim order made in Victoria and how the licencing regime would operate if Mr van de Haar was subject to an apprehended violence order or an interim apprehended violence order in New South Wales. 5. Pursuant to s 11(5)(c) of the Firearms Act 1996 (NSW), had Mr van de Haar been subject to an apprehended violence order or an interim apprehended violence order in New South Wales, he would be precluded from being issued a firearm licence within a 10-year period. 6. However, an apprehended violence order or an interim apprehended violence order under the Personal Safety Intervention Orders Act 2010 (Vic) has not been prescribed for the purposes of the Firearms Act 1996 (NSW). 7. Pursuant to s 3(1) of the Firearms Act 1996 (VIC), Mr van de Haar is precluded from being issued with a firearm licence in Victoria within a five-year period because he was subject to an apprehended violence order or an interim apprehended violence order under the Personal Safety Intervention Orders Act 2010 (Vic). 8. The Commissioner's submission that the public interest principle in s 11(7) of the Firearms Act 1996 (NSW) has work to do in these factual circumstances can be readily accepted. To issue a firearm licence to Mr van de Haar would be contrary to the principle set out in s 3(1)(c) and s 3(2)(b) of the Firearms Act 1996 (NSW) to establish an integrated scheme for firearm licencing and to facilitate a national approach to the control of firearms. 9. Consistency between different firearm licencing regimes and an approach that facilitates a national approach to the control of forearms are relevant factors in the consideration of the public interest principle in s 11(7) of the Firearms Act 1996 (NSW). In this case, these factors are determinative in the Tribunal finding that it is not in the public interest for Mr van de Haar to hold a firearms licence. 10. I reject Mr van de Haar's submission that he was told by a Magistrate in Geelong that a firearm licence would not be affected by an apprehended violence order or an interim apprehended violence order under the Personal Safety Intervention Orders Act 2010 (Vic) because it was too minor or that the Court was prepared to set the apprehended violence order aside on review on 24 October 2017 but was refused because he had to leave the Court. There is no evidence to support such assertions. I have considered the Court documents produced on subpoena from the Geelong Magistrates Court and there is no reference to such comments being made to Mr van de Haar. Mr van de Haar did not rely on any evidence to make these assertions. 11. I reject Mr van de Haar's submission that the Geelong Magistrates Court did not reach a level of satisfaction that, on the balance of probabilities, he had committed prohibited behaviour against the affected person pursuant to s61(1) of the Personal Safety Intervention Orders Act 2010 (Vic). DECISION 1. The decision under review is affirmed. ********** 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 November 2021