Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wallin v Commissioner of Police (No 2) [2022] NSWCATAD 83 Hearing dates: On the papers Date of orders: 11 March 2022 Decision date: 11 March 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: 1. The decision to revoke the Category - ABH Firearms Licence held by Graham Wallin is set aside. 2. The Category ABH Firearms Licence held by Graham Wallin is to be subject to the following conditions: (1) The Applicant is not to store or allow any firearm to be stored at his current residential address; (2) The Applicant is not to possess a firearm within 200 metres of his current residential address, unless otherwise agreed to by the Firearms Registry; (3) The Applicant is to only store his firearms at an approved shooting range or other venue to which the Commissioner agrees ("the agreed location"). Storage of the Applicant's firearms is at the Applicant's own expense; and (4) The Applicant is to notify the Firearms Registry if he proposes to store his firearms at an address other than the agreed location. This notification is to be given in writing by email or as otherwise agreed with the Firearms Registry and is to be given no later than 14 days after the firearms have been stored at an address other than the agreed location. The notification must: (a) specify the address of the new premises on which the firearm is to be kept when not actually being used; (b) specify particulars of the arrangements that have been made by the licence holder for the safe keeping and storage of the firearm on those premises: and (c) certify that those arrangements comply with the requirements of the Act and the Regulation concerning the safe keeping and storage of firearms. Catchwords: ADMINISTRATIVE LAW – conditions on licence Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Administrative Decisions Review Act 1997 (NSW) Firearms Act 1996 (NSW) Firearms Regulation 2017 (NSW) Cases Cited: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 Mulligan v Commissioner of Police [2020] NSWCATAD 272 Wallin v Commissioner of Police [2021] NSWCATAD 150 Wallin v Commissioner of Police, NSW Police Force [2021] NSWCATAP 368 Category: Principal judgment Parties: Graham Wallin (Applicant) Commissioner of Police (Respondent) Representation: Solicitors: Applicant (Self Represented) Maddocks Lawyers (Respondent) File Number(s): 2020/00246109 Publication restriction: Nil Reasons for Decision Introduction 1. This is an application for review of a decision by a delegate of the Commissioner of Police ("the Respondent" or "the Commissioner") under the Firearms Act 1996 ("the Act"). The Respondent's decision was to revoke a Category ABH firearms licence held by Graham Wallin ("the Applicant"). Background 1. The background to the application is set out in the decision recorded as Wallin v Commissioner of Police [2021] NSWCATAD 150 ("the original decision"). In the original decision I set aside the Respondent's decision to revoke the Applicant's firearms licence and ordered that the licence be subject to a number of conditions regarding the storage of the Applicant's firearms. The conditions limited the storage or possession of firearms near his residence. 2. The Applicant successfully appealed the original decision insofar as it concerned the imposition of conditions. The Appeal Panel decision is at Wallin v Commissioner of Police, NSW Police Force [2021] NSWCATAP 368. At paragraph [67] the Appeal Panel stated: The Appeal Panel concludes that the Tribunal failed to accord procedural fairness in not alerting the parties to the possibility that conditions may be imposed, either in the course of the hearing or after the decision was reserved, if the decision to revoke the licence were to be set aside. In the context of the Commissioner's position below that the decision to revoke the licence should be affirmed, and Mr Wallin's position as to the impact on him if the conditions were to be imposed, the Appeal Panel cannot be confident that it would have made no difference to the decision to impose the conditions had the parties been provided an opportunity to make submissions on that issue. The denial of procedural fairness deprived the parties of the possibility of a different outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54. 1. The Appeal Panel remitted the decision for reconsideration of the issue of the imposition of conditions with such further evidence and submissions as the Tribunal allows. 2. In regard to the original decision's reason for imposing conditions on the licence the Appeal Panel stated at paragraphs [7] –[9]: 7. At [49] the Tribunal noted that Mr Wallin's disputes with his neighbours, which had continued over the period of 25 years, suggested that he did not have the ability to deal reasonably with disputes that arise in the future. The Tribunal noted (at [52]) that in his report Mr Cook had concluded that with regards to overall risk, Mr Wallin presented as a low risk of violence and he did not present with risk management issues. The Tribunal noted (at [53]) Mr Cook's conclusion that Mr Wallin is "rules and regulation orientated", and that his "desire to follow rules can be annoying but is likely to be protective regarding him following the rules of owning a gun", and stated that those conclusions were consistent with the earlier reports. 8. The Tribunal considered that it was reasonable to expect that neighbourhood disputes were likely to continue. The Tribunal noted that Mr Wallin had indicated he intended to leave his current residential address, and stated that if he did the likelihood of neighbourhood disputes may be reduced. There was no evidence to suggest that Mr Wallin had not been a conscientious firearms owner or had not had a good record of compliance in relation to his personal licences. 9. The Tribunal continued: 60. In my view, while there is a strong likelihood that neighbourhood disputes will continue, the risk that the Applicant would misuse firearms is minimal. In my view, there is virtually no risk to public safety if the Applicant was granted a firearms licence. 61. I am satisfied that he is a fit and proper person to hold a firearms licence. I am not satisfied that it is contrary to the public interest for him to do so. 62. In my view, the correct and preferable decision is that the decision to revoke the Applicant's licence should set aside. 63. However, given the views that I have expressed in regard to the likelihood of ongoing neighbourhood disputes, it is my view that it is appropriate to impose a condition on the Applicant's licence to effectively remove the firearms from the neighbourhood. The Tribunal has power to impose a special condition pursuant to section 19 of the Act. If neighbours become aware that the Applicant's licence does not permit him to store firearms in the neighbourhood it may go some way further towards improving harmony than might otherwise exist. 64. The Applicant's licence is to be subject to the following conditions: (1) The Applicant is not to store or allow any firearm to be stored at his current residential address; (2) The Applicant is not to possess a firearm within 200 metres of his current residential address; (3) The Applicant is to only store his firearms at an approved shooting range or other venue to which the Commissioner agrees ("the agreed location"). Storage of the Applicant's firearms is at the Applicant's own expense; and (4) The Applicant is to notify the Firearms Registry if he proposes to store his firearms at an address other than the agreed location. This notification is to be given in writing by email or as otherwise agreed with the Firearms Registry and is to be given no later than 7 days after the firearms have been stored at an address other than the agreed location. 65. I note that no suggestion has been made that the Applicant has ever failed to safely store his firearms. However, there have been complaints of attempted break-ins at his property. These conditions should eliminate the possible that a break-in at the Applicant's premises could result in the theft of firearms and any risk of misuse that could result from the theft. 1. In regard to other issues raised in the appeal the Appeal Panel stated at paragraphs [40] – [41]: 40. The Appeal Panel concludes that the Tribunal did not have regard to irrelevant considerations, or fail to have regard to relevant considerations. The Tribunal considered the records of complaints made by Mr Wallin about his neighbours and the complaints that had been made about him, providing Mr Wallin with an opportunity to respond. The text of the decision confirms that the Tribunal did not take into account any of the material subject to orders made under s 59 of the ADR Act and s 64 of the NCAT Act, to which Mr Wallin had not been able to respond. The Tribunal gave significant weight to the report by Mr Cook which was provided by Mr Wallin as a risk assessment regarding his suitability to hold a firearms licence, being satisfied that Mr Cook was aware of the general nature of the neighbourhood disputes in reaching his conclusions. The conclusion that Mr Wallin had in fact been involved in neighbourhood disputes over the preceding 25 years, and that that behaviour suggested that he did not have the ability to deal reasonably with neighbour disputes that will arise in the future, was open to the Tribunal, and the reasons for reaching that conclusion were clearly articulated in the decision. 41. The Appeal Panel agrees with the Commissioner that the procedures adopted in the Commissioner's decision in 2010 to revoke the firearms licence then held by Mr Wallin, including whether or not there was an opinion provided under s 79 of the Firearms Act or whether sufficient reasons were given for that decision, are not relevant to the administrative review of the revocation decision made in 2020. The task of the Tribunal under s 63 of the ADR Act on review of the 2020 revocation was to determine the correct and preferable decision having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. The Appeal Panel can discern no error in the Tribunal's identification of the applicable law or the relevant principles derived from the authorities, or in the application of that law to the issues for determination, namely whether the applicant was a fit and proper person to hold a firearms licence and whether it was contrary to the public interest for him to continue to hold one. 1. The appeal appears to have proceeded on the basis that the decision to set aside the revocation was not in issue. The Appeal Panel reasons do not suggest otherwise. In the circumstances, for the reasons given in the original decision, I determine that the Respondent's decision to revoke the Applicant's Category AB Firearms Licence is set aside. 2. These reasons are limited to the issue of whether the licence should be the subject of conditions. 3. In order to address the concerns regarding procedural fairness I conducted a directions hearing and set a timetable for the parties to provide any further material on which they rely. 4. The parties have been given the opportunity to make submissions as to whether the Tribunal should dispense with a hearing, and being satisfied that the matter can be adequately determined in the absence of the parties the Tribunal dispenses with a hearing pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013. 5. Each of the parties has filed additional submissions in regard to this issue. Relevant Legislation 1. Section 19(1) of the Act provides that a licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose. 2. Clause 17 of the Firearms Regulation 2017 ("the Regulation") provides: 17 Requirement to notify Commissioner of address where firearms are kept ... (3) If there is any change in the address of the premises on which the holder of a licence or permit keeps any firearm, the holder of the licence or permit must, within 14 days after the change occurs, give the Commissioner notice in writing or in such other manner as may be approved— (a) specifying the address of the new premises on which the firearm is to be kept when not actually being used, and (b) specifying particulars of the arrangements that have been made by the licence or permit holder for the safe keeping and storage of the firearm on those premises, and (c) certifying that those arrangements comply with the requirements of the Act and this Regulation concerning the safe keeping and storage of the firearm. Maximum penalty - 50 penalty units. The Applicant's submissions 1. The Applicant opposes the imposition of any conditions on his licence. He provided detailed submissions which largely revisit issues that were raised at the original hearing and in the appeal hearing. In regard to his relationship with his neighbours, he denied being involved in ongoing neighbourhood disputes. He also submitted that any suggestion of the likelihood of ongoing neighbourhood disputes is not rational, as he does not get involved in any altercations, or associate with any other persons who do. He argues that in the original decision I placed too much weight on alleged neighbourhood disputes. 2. The Applicant also made some submissions which are contrary to the Appeal Panel findings that I have referred to above. 3. However, in regard to imposition of conditions on the licence he submitted that the conditions imposed in the original decision result in a loss of the privilege of easy access to his firearms. He submitted that, as a result, he is now disproportionally disadvantage and it is very impractical for him to undertake activities and the maintenance of the firearms. 4. He referred to prior agreements with friends, family, and relatives who visit, use, or stay at his residence. In that regard he submitted: The imposition of the now new conditions to the prior privileges of the firearms licence now creates unreasonable unpredictable situations for the appellant to timely predict if, or when any of the appellants relatives, family, or friends, who may also legitimately own or possess firearms may for whatever reason wish to use or visit the appellants current residential address, that will obviously create a breach of the appellants residential occupation by the existence of the new firearms licence conditions. 1. He expressed concern that he may have to refuse to allow relatives, family or friends use of his residence if they possess firearms. 2. He also expressed concern that he would be disadvantaged by the need to travel unreasonable distances to and from the agreed safe storage location and then further disadvantaged by distance and lost time to travel to and from the agreed storage location to the location of the genuine reason activity. He noted that his local pistol club is about 78 km away from his residence and that it does not store firearms. He submitted that the limitation on access to his firearms would also impact on his ability to satisfy the participation requirements imposed on him by the Regulation. 3. He submits that the conditions imposed by the original decision are an unreasonable and unwarranted financial imposition and not fair. He further submits that the ongoing storage costs would cause financial hardship. 4. The Applicant stated that he is a law abiding, good natured person of sound mind, and there is no reasonable cause to believe that he cannot personally exercise the continuous and responsible control of firearms. Therefore, he says that the correct and preferable decision is to not impose any the conditions on the licence. 5. However, the Applicant indicated that he has a trustworthy elderly friend who has a firearms licence, and a safe and who lives less than 200 metres away from the Applicant. 6. I understood this information to suggest an alternative option for storage of his firearms if conditions are imposed. The Respondent's submissions 1. The Respondent's position is that the conditions imposed by the original decision should remain in place, subject to some minor variations. 2. The Respondent referred to the Appeal Panel decision and noted that the Appeal Panel confirmed that the power to impose conditions is discretionary. It also observed that in the original decision I considered, in the context of the likelihood of ongoing neighbourhood disputes, that it was appropriate to impose a condition to effectively remove the firearms from the neighbourhood. It noted that in doing so I was responding to what I considered was required for protection of public safety, consistent with the objects as stated in section 3 of the Act. The Appeal Panel had concluded that there was power to impose the conditions on the licence and that no error had been demonstrated in the reasoning as to why it was appropriate to do so in the circumstances. 3. The Respondent also noted that the Appeal Panel's conclusion that it was open to the Tribunal to find that the Applicant had in fact been involved in neighbourhood disputes over the preceding 25 years, and that that behaviour suggested that he did not have the ability to deal reasonably with neighbour disputes that will arise in the future. 4. The Respondent contends that the Applicant seeks to challenge the findings made in the original decision regarding ongoing neighbourhood disputes, which the Appeal Panel determined were open to the Tribunal. It submits that, in making a decision on remittal, the Tribunal should not undertake a reassessment of the findings previously made which resulted in the imposition of the conditions. Rather, the Tribunal should consider whether there are any practical variations to the conditions that should be made to address the Tribunal's finding that the Applicant did not have the ability to deal reasonably with neighbour disputes and that it was reasonable to expect that such disputes are likely to continue. 5. The Respondent submits that the original decision conditions seek to deal with the concern that there will be ongoing disputes between the Applicant and his neighbours, which necessarily create a risk to the public safety and are therefore reasonable and proportionate to the risks identified. 6. As noted, the Applicant raised concerns in regard to limitations on access available to his relatives, family or friends who may possess firearms. The Respondent submits that the Applicant is easily able to inform any visitors who might lawfully possess firearms of any conditions and ensure that no firearms are to be stored at his premises. The Respondent submits that this is not a factor that should outweigh the appropriateness of the conditions being imposed to address the Respondent's and the Tribunal's concerns. 7. Further, the Respondent submits that any reasonable costs incurred as a consequence of firearms ownership is ultimately a matter for the Applicant, should he wish to retain his firearms licence. It argues that firearms possession is a privilege, not a right, and it is conditional on the overriding need to ensure public safety. The Commissioner, and the Tribunal on review, has broad power of to impose conditions. 8. The Respondent is of the view that the original decision conditions should remain, subject to some minor variations to reflect the provisions of the Regulation and address some of the issues raised by the Applicant. In that regard it submitted: First, the Respondent proposes that condition 4 be amended so that it reflects the terms of clause 17(3) of the Firearms Regulation. In particular, that notification of a change of address be provided to the Commissioner within 14 (rather than 7 days) and that specifics of the address and arrangements be provided. Second, the Applicant has noted that he has a trustworthy elderly friend … who has a firearms licence, and a safe, but that elderly person lives less than 200 metres from the Applicant. If the Applicant were to provide further particulars of his friend, their current licence status and safe storage details, the Respondent would be willing to consider storage of the Applicant's firearms at that location. Finally, it should be noted that it is always open to a licence holder to seek that conditions be removed from their licence, particularly if the circumstances giving rise to their imposition are no longer relevant. It is in fact noted in the Decision that the Applicant indicated that he intended to leave his current residential address. Accordingly, if the Applicant were able to demonstrate that he had not been the subject of any further disputes with his neighbours for a significant period of time, or if he were to change his address, he may wish to apply to the Firearms Registry for the Subject Conditions to be removed. 1. The Respondent proposed conditions in the following terms: 1. The Applicant is not to store or allow any firearm to be stored at his current residential address; 2. The Applicant is not to possess a firearm within 200 metres of his current residential address, unless otherwise agreed to by the Firearms Registry; 3. The Applicant is to only store his firearms at an approved shooting range or other venue to which the Commissioner agrees ("the agreed location"). Storage of the Applicant's firearms is at the Applicant's own expense; and 4. The Applicant is to notify the Firearms Registry if he proposes to store his firearms at an address other than the agreed location. This notification is to be given in writing by email or as otherwise agreed with the Firearms Registry and is to be given no later than 14 days after the firearms have been stored at an address other than the agreed location. The notification must: a. specify the address of the new premises on which the firearm is to be kept when not actually being used; b. specify particulars of the arrangements that have been made by the licence holder for the safe keeping and storage of the firearm on those premises: and c. certify that those arrangements comply with the requirements of the Act and the Regulation concerning the safe keeping and storage of firearms. Consideration 1. As has been noted above, in the original decision I formed the view that the Applicant had been involved in numerous disputes with his neighbours and that he has both made complaints to the police and been the subject of complaints. Those disputes involved numerous neighbours and continued for at least 25 years. I also formed the view that there is a strong likelihood that the neighbourhood disputes will continue and that the Applicant did not have the ability to deal reasonably with neighbourhood disputes that will arise in the future. 2. The Appeal Panel stated that these conclusions were open on the evidence. I have no reason to revisit those conclusions. 3. I have been referred to a number of decisions which have considered the imposition of conditions. As noted, the power to impose a condition under section 19 of the Act is discretionary. That discretion should be exercised in a way which promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 at paragraph [23]. 4. 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]. 5. 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]. 6. In the original decision I stated at paragraph [63]: However, given the views that I have expressed in regard to the likelihood of ongoing neighbourhood disputes, it is my view that it is appropriate to impose a condition on the Applicant's licence to effectively remove the firearms from the neighbourhood. The Tribunal has power to impose a special condition pursuant to section 19 of the Act. If neighbours become aware that the Applicant's licence does not permit him to store firearms in the neighbourhood it may go some way further towards improving harmony than might otherwise exist. 1. I remain of that view. 2. On all the evidence, it is my view that the circumstances warrant the imposition of a condition on the Applicant's licence in order to safeguard public safety and protect the public interest. 3. I am satisfied that the conditions proposed by the Respondent are appropriate in the circumstances. These are practical variations to the original decision conditions. I agree that the Applicant is able to inform any visitors who might lawfully possess firearms of any conditions and ensure that no firearms are to be stored at his premises. I also agree that any reasonable costs incurred as a consequence of firearms ownership is ultimately a matter for the Applicant. The Applicant's concerns and the inconvenience that he will suffer as a consequence of the imposition of the conditions are not sufficient to override the need for the conditions. 4. If the Applicant is able to come to an agreement in regard to a convenient location for the storage of his firearms, the inconvenience that will inevitably flow from these conditions can be reduced to a minimum. Orders 1. The decision to revoke the Category ABH Firearms Licence held by Graham Wallin is set aside. 2. The Category ABH Firearms Licence held by Graham Wallin is to be subject to the following conditions: 1. The Applicant is not to store or allow any firearm to be stored at his current residential address; 2. The Applicant is not to possess a firearm within 200 metres of his current residential address, unless otherwise agreed to by the Firearms Registry; 3. The Applicant is to only store his firearms at an approved shooting range or other venue to which the Commissioner agrees ("the agreed location"). Storage of the Applicant's firearms is at the Applicant's own expense; and 4. The Applicant is to notify the Firearms Registry if he proposes to store his firearms at an address other than the agreed location. This notification is to be given in writing by email or as otherwise agreed with the Firearms Registry and is to be given no later than 14 days after the firearms have been stored at an address other than the agreed location. The notification must: 1. specify the address of the new premises on which the firearm is to be kept when not actually being used; 2. specify particulars of the arrangements that have been made by the licence holder for the safe keeping and storage of the firearm on those premises: and 3. certify that those arrangements comply with the requirements of the Act and the Regulation concerning the safe keeping and storage of firearms. 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: 11 March 2022