AT and COMMISSIONER OF POLICE
[2024] WASAT 128
•26 NOVEMBER 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: FIREARMS ACT 1973 (WA)
CITATION: AT and COMMISSIONER OF POLICE [2024] WASAT 128
MEMBER: MS C CONLEY, MEMBER
HEARD: 18 AND 31 OCTOBER 2024
DELIVERED : 26 NOVEMBER 2024
FILE NO/S: CC 1360 of 2023
BETWEEN: AT
Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Firearm licence - Application for review of decision to revoke firearm licence - Whether applicant has a genuine reason to possess firearm - Whether applicant a fit and proper person to hold firearm licence - Decision of Commissioner affirmed
Legislation:
Firearms Act 1973 (WA), s 11(1)(c), s 11A(1), s 11A(2), s 11A(2)(a), s 11A(2)(b), s 11A(2)(c), s 11A(3), s 22
Firearms Act 2024 (WA)
State Administrative Tribunal Act 2004 (WA), s 17, s 27, s 27(1), s 27(2), s 29, s 29(3), s 61(4), s 62
Result:
Application unsuccessful
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Mr J Orley and Ms S Kottage |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | Legal Services, Western Australian Police Force |
Case(s) referred to in decision(s):
Coumbe v Whittaker [1999] WASCA 151
Kashani v Commissioner of Police [2011] WASC 6
Killen v Commissioner of Police [2014] WASC 427
Knight v Commissioner of Police [2011] WASC 93
Polizzi v Commissioner of Police [No.2] [2017] WASC 166
Thayli Pty Ltd v Commissioner of Police [2021] WASCA 46
Wignall and Commissioner of Police [2006] WASAT 206
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The applicant has sought review of a decision by a delegate of the respondent, the Commissioner of Police (Commissioner), to revoke his firearm licence on the basis that the applicant is not a fit and proper person to hold a licence.
Issues for determination
The issue for determination in the Tribunal is whether, on the basis that it is the correct and preferable decision, the applicant should be permitted to have a firearm licence and, in particular:
(a)whether the applicant has a genuine reason for possessing the firearm; and
(b)whether the applicant is a fit and proper person to hold a firearm licence.
Legal framework
Review jurisdiction
This application falls within the Tribunal's review jurisdiction under the Firearms Act 1973 (WA) (Firearms Act) and the State Administrative Tribunal Act 2004 (WA) (SAT Act).[1]
[1] Firearms Act, s 22 and SAT Act, s 17.
In exercising the Tribunal's review jurisdiction, the Tribunal is to review the decision in question by way of a hearing de novo for the purposes of producing the correct and preferable decision on the basis of the information and the evidence before the Tribunal at the time of review.[2]
[2] SAT Act, s 27(1) and s 27(2).
The Tribunal does not determine the validity or otherwise of the reviewable decision.[3]
[3] Killen v Commissioner of Police [2014] WASC 427 at [42] - [43] per Pritchard J.
The Tribunal is not limited in its consideration to the material that was before the original decision-maker, nor to a consideration of the original decision-maker's reasoning alone.[4] This means that the Tribunal may take into account matters which were not before the respondent.
[4] SAT Act, s 27.
All of the functions and discretions conferred on the original decisionmaker are conferred on the Tribunal in addition to the powers conferred on the Tribunal by the SAT Act.[5] Accordingly, the Tribunal stands in the shoes of the Commissioner to make the correct or preferable decision.[6]
[5] SAT Act, s 29.
[6] Polizzi v Commissioner of Police [No.2] [2017] WASC 166 at [67] per Corboy J.
The power exercised by the Tribunal is not a judicial power, but rather a statutory administrative power, exercisable for the purpose of the control and licensing of firearms.[7]
[7] Knight v Commissioner of Police [2011] WASC 93 at [15] per EM Heenan J.
Decisions made under the Firearms Act are not aimed at punishing an applicant for a firearm licence, but rather at serving the protective purpose of the Firearms Act in the public interest.[8]
[8] Coumbe v Whittaker [1999] WASCA 151 at [10], [13] and [14] per McKechnie J.
An applicant for a firearm licence bears a practical onus to satisfy the Tribunal that the requirements of s 11 of the Firearms Act have been met.[9]
[9] Wignall and Commissioner of Police [2006] WASAT 206 at [282] per President Barker, Member Mansveld and Sessional Member Lord.
On review, the Tribunal may affirm, vary or set aside the reviewable decision and, in the latter case, may substitute its own decision to arrive at the correct and preferable decision.[10]
Firearms Act
[10] SAT Act, s 29(3).
Section 11A(1) of the Firearms Act says that the Commissioner cannot issue a licence under the Firearms Act to a person who, in the Commissioner's opinion, has not been shown to have a genuine reason for acquiring or possessing the firearm for which the licence is sought.
Section 11(1)(c) of the Firearms Act says that the Commissioner cannot issue a licence under the Firearms Act if the Commissioner is of the opinion that the person is not a fit and proper person to hold the licence.
Proceedings in the Tribunal
A hearing was held in the Tribunal on 18 and 31 October 2024 (Hearing).
The applicant gave evidence on his own behalf and called two other persons as witnesses. Senior Constable Mark Keeble gave evidence on behalf of the respondent.
The Hearing Book was taken into evidence as Exhibit 1. The following additional documents were taken into evidence during and following the Hearing with the consent of the parties:
Exhibit 2: Respondent's supplementary book of documents;
Exhibit 3: Applicant's supplementary book of documents;
Exhibit 4: Property Letter dated 15 November 2021;
Exhibit 5: Tax Invoice from the West Australian Gun Club (Inc.) (Gun Club) dated 2 November 2024;
Exhibit 6: Undated email from the Gun Club concerning 2025 Membership Renewals; and
Exhibit 7: Approval of Gun Club as an approved shooting club dated 4 November 2024.
Each of the parties filed a statement of issues, facts and contentions (SIFC) and written closing submissions.
Findings of Facts
The following general facts are either agreed or not in dispute and I find as follows:
(a)the applicant is a 42-year old businessman who is married with two children;
(b)in 2021 the applicant joined the Gun Club;
(c)in 2021 the applicant was issued with a firearm licence in respect of his Beretta Double Barrel Shotgun (Beretta);
(d)the applicant and his sister went shooting together at the Gun Club;
(e)the applicant and his family live next door to the applicant's sister, (hereinafter referred to as Ms X);
(f)Ms X is married to but separated from her husband, (hereinafter referred to as Mr Y);
(g)the applicant and Mr Y are friends and business partners;
(h)on 29 June 2022 the applicant reported Ms X as missing to the Western Australia Police Force (WA Police), but the WA Police were able to make contact with Ms X and she told them that she was unsure why she had been reported missing because she was in a meeting;
(i)on 21 November 2022, following an alleged incident at his sister's house involving Mr Y and Ms X in which the applicant intervened, the WA Police issued a police order against the applicant and Mr Y which protected Ms X;
(j)the applicant's Beretta was seized;
(k)following the incident on 21 November 2022, Mr Y was charged with criminal damage and Mr Y's mother alleged that she was assaulted by Ms X;
(l)on 28 November 2022 in the Perth Magistrates Court, Ms X applied for an interim family violence restraining order (FVRO) against the applicant alleging that:
(i)the applicant had threatened to hit her; verbally abused her; threatened to kill her and threatened to put a bullet through her;
(ii)the applicant had falsely reported her missing due to his controlling nature; and
(iii)she feared for her safety because the applicant lived next door and owned guns;
(m)on 1 January 2023 Ms X alleged to the WA Police that she was receiving death threats from the applicant and that he had been telling his parents that he wanted to kill her and then himself;
(n)on 10 February 2023 Ms X alleged to the WA Police that the applicant had breached the FVRO because on 4 February 2023, they each attended the birthday party of a friend's child at a restaurant. However, no charges were laid against the applicant in respect of the alleged breach due to insufficient evidence;
(o)on 19 February 2023 Mr Y alleged to the WA Police that Ms X threw a brick through the front window of his house;
(p)on 4 April 2023, the applicant and Ms X were each present at a business address together with Mr Y and began filming each other. The applicant was charged with breach of the FVRO but on 6 October 2023 the charge was dismissed pursuant to s 25 of the Criminal Procedure Act 2004 (WA);
(q)on 18 May 2023 Ms X alleged to the WA Police that:
(i)on 6 April 2023 the landlord of the business premises she shared with her brother and husband said that he had spoken to the applicant and Mr Y and asked Ms X to consider revoking the FVRO; and
(ii)on 12 May 2023 she received a telephone call from a family friend who stated that he heard from the applicant about the FVRO and she should reconsider her decision as her brother regrets it,
but Ms X did not wish the matters to be investigated.
(r)on 19 May 2023 Mr Y alleged to the WA Police that Ms X had transferred funds from a family trust banking account without his permission;
(s)on 26 May 2023 the applicant and Ms X entered into a final conduct agreement order (CAO) for a period of one year;
(t)on 25 August 2023 the applicant's firearm licence was revoked by the delegate of the respondent on the basis that the applicant was not a fit and proper person to hold a licence because of the FVRO and the CAO;
(u)on 6 October 2023 the Perth Magistrates Court ordered that the CAO be varied to allow for return of the applicant's firearm on the basis that it was agreed by both parties that the applicant would retain possession of his firearm;
(v)on 3 November 2023 the applicant lodged a review application with the Tribunal seeking a review of the decision to revoke his firearm licence; and
(w)on 26 May 2024 the CAO expired;
(x)on 4 October 2024 Ms X provided a statement to the respondent which was filed with the Tribunal reiterating her allegations against the applicant and saying that she would not feel safe if the applicant were to have his firearm at his home; and
(y)on 15 October 2024 the respondent's solicitors notified the Tribunal that Ms X did not wish to give evidence at the hearing and the respondent did not wish to compel her to give evidence.
Additional findings of fact pertinent to a particular issue are set out below in relation to that issue.
Determination of the issues
Does the applicant have a genuine reason within s 11A(2) of the Firearms Act?
The first issue for the Tribunal is whether the applicant has a genuine reason for possessing a firearm within s 11A(2) of the Firearms Act.
Section 11A of the Firearms Act relevantly provides:
…
(2)A person has a genuine reason for acquiring or possessing a firearm, major firearm part, prohibited firearm accessory or ammunition if and only if —
(a)it is for use by the person as a member of an approved shooting club and the person is an active and financial member of the club; or
(b)it is for use by the person as a member of an organisation approved under this paragraph; or
(c)it is for use in hunting or shooting of a recreational nature on land the owner of which has given written permission for that hunting or shooting; or
(d)it is required by the person in the course of the person's occupation; or
(da)in the case of a prescribed paintball gun, it is required by the person to conduct or engage in paintball in accordance with this Act; or
(e)it is to form part of a genuine firearm collection or genuine ammunition collection; or
(f)it is for another approved purpose.
Section 11A(2) of the Firearms Act exhaustively provides for what may be a genuine reason.[11]
[11] Thayli Pty Ltd v Commissioner of Police [2021] WASCA 46 at [23] per the Court.
In Kashani v Commissioner of Police [2011] WASC 6 (Kashani), her Honour Justice Jenkins considered the operation of s 11A of the Firearms Act. The relevant principles drawn from that decision are summarised below:
(a)the term 'genuine reason' in s 11A does not have its ordinary meaning;
(b)section 11A(1) says that an applicant must have a 'genuine reason' for acquiring and possessing the firearm and s 11A(2) and s 11A(3) set out what the genuine reasons are for the purpose of s 11A(1);
(c)when a decision-maker considers whether an applicant has met the genuine reason criteria in s 11A, the decision-maker may consider a factor which would also be relevant to whether the applicant has a need, in ordinary terms, for the firearm, if s 11A permits or requires them to take such a factor into consideration, regardless of whether such a consideration would ordinarily be relevant, absent the statutory provisions;
(d)there is an overlap between s 11A(1) and s 11A(2) in that the former subsection specifies the criterion for grant of a licence under s 11A, whereas the latter subsection then states the reasons, one of which must be satisfied in order for an applicant to meet the criterion in s 11A(1); and
(e)the reason in s 11A(2) put forward by an applicant must exist in fact.
Active and financial member of an approved shooting club
In the applicant's SIFC, the applicant contends that he has a genuine reason for possessing the Beretta as a member of an approved shooting club pursuant to s 11A(2)(a) of the Firearms Act.
It was not in dispute that the Gun Club was approved as a shooting club for the purposes of s 11A(2)(a) and (b) of the Firearms Act by A/Inspector Karl Vandersluys, a delegate of the Commissioner of Police, in an instrument dated 4 November 2024.[12] Accordingly, I am satisfied and find that the Gun Club is an approved shooting club.
[12] Exhibit 7.
At the Hearing, the applicant gave evidence that he was no longer a member of the Gun Club and that his membership expired in December 2023. The applicant also gave evidence that he had not participated in shooting at the Gun Club since his firearm was seized in November 2022. Further, the applicant gave evidence that he had made enquiries about membership and that he intended to apply for membership in November 2024. Finally, the applicant gave evidence that he can rent firearms from the Gun Club to use at the club, but they are not of good quality and he prefers to use his Beretta.
In his closing submissions, the applicant submitted that he had not renewed his membership of the Gun Club for several reasons. First, due to the CAO and on the advice of his lawyer to stay away from the club to avoid any potential breaches. Second, stress. Third, extensive travel. Fourth, financial considerations, as he had already paid for the previous two years without using the facility.
Following the Hearing, the applicant provided the Tribunal with a tax invoice from the Gun Club dated 2 November 2024 for payment of his membership fee.[13] Accordingly, I am satisfied and find that although the applicant was not a member of the Gun Club at the time of the Hearing, he is now a financial member of the Gun Club.
[13] Exhibit 5.
I accept the evidence of the applicant as it was not in dispute and find that the applicant has not participated in shooting at the Gun Club since November 2022, that his membership of the club expired in December 2023 and that he only renewed his membership on 2 November 2024. I also find that the applicant can rent firearms at the Gun Club but has chosen not to do so because the firearms are of inferior quality to his Beretta which he cannot use because his firearm licence was revoked.
The term 'active' is not defined in the Firearms Act and so bears its ordinary dictionary definition. The Macquarie Dictionary Online defines the term 'active' relevantly as 'highly involved in some area, activity, etc: active in the community; an active environmentalist'.
In my view, to be an 'active' member of an approved shooting club, an applicant must be involved in the activities of that club and membership alone is not sufficient. Specifically, an applicant must participate in shooting activities at the club.
On the basis of the evidence of the applicant, I find that the applicant is not currently an active member of an approved shooting club. This is for the reasons which follow.
First, the applicant has not participated in shooting at the Gun Club since November 2022 even though he can use the firearms available for rent at the club because he prefers to use his Beretta.
Second, the applicant was not a member of the Gun Club between December 2023 and 1 November 2024.
Third, the applicant did not renew his membership of the Gun Club until 2 November 2024.
Therefore, it is my opinion that the applicant has not shown that he has a genuine reason within s 11A(2)(a) of the Firearms Act for possessing the Beretta.
Hunting or shooting of a recreational nature
At the Hearing, the applicant also contended that he has a genuine reason for possessing the Beretta for use in hunting or shooting of a recreational nature on land the owner of which has given written permission for that hunting or shooting pursuant to s 11A(2)(a) of the Firearms Act. In particular, the applicant referred to a property letter which he provided with his application for a firearm licence.
The property letter is dated 15 November 2021 and is signed by a Mr Peter Kelly.[14] The property letter authorises the applicant to use a 12 gauge on Penny Farm in the Warralakin Shire of Westonia to shoot feral cats, foxes, pigs, rabbits, wild dogs and goats. Further, the permission remains in effect whilst Mr Kelly remains owner of the property or the permission is withdrawn.
[14] Exhibit 4.
At the Hearing, Senior Constable Keeble gave evidence that he had contacted Mr Kelly by telephone on 31 October 2024 and that Mr Kelly stated that:
… he was going through a big drought period. He needed every piece of revenue he could. He sold a lot of property letters in relation to his property itself. He does not remember any of the people the letters were sent to.
Senior Constable Keeble also gave evidence that the property letter would have been verified at the time the licence application was submitted.
At the Hearing, the applicant gave evidence that he had obtained the property letter through a friend who was a firearms dealer but the applicant could not remember the name of his friend. He also gave evidence that he could not recall his communications with the property owner, had never visited the property and did not know where the property was or how far away it was from Perth. He said that he has never shot animals or vermin previously and had not been trained to shoot vermin. The applicant denied that he had paid Mr Kelly or the firearms dealer for the property letter.
The applicant said that he had visited other properties, but he never did any shooting because he was new to the sport. He also said that he was learning the sport at the Gun Club.
I accept the applicant's evidence as it was not in dispute. I also accept Senior Constable Keeble's evidence as it was not in dispute notwithstanding that Mr Kelly was not called to give evidence. In particular, I note that the applicant did not wish to call Mr Kelly to give evidence about the property letter.
On the basis of the property letter, I am satisfied and find that in 2021 Mr Kelly gave permission for the applicant to shoot on his property.
On the basis of the evidence of the applicant, I am satisfied and find that the applicant has not visited the property the subject of the property letter and does not know where the property is located. I am also satisfied and find that the applicant has not engaged in hunting or shooting of a recreational nature on that property or any other similar properties and has not been trained to shoot vermin.
On the basis of the evidence of Senior Constable Keeble, I am satisfied and find that Mr Kelly granted a lot of property letters in respect of his property due to his straightened financial circumstances and does not remember the applicant.
On the basis of the evidence of Senior Constable Keeble and the applicant, I am not satisfied that the applicant intends to use the Beretta for hunting or shooting of a recreational nature on the land the subject of the property letter. This is for the reasons which follow.
First, the applicant has never visited the property the subject of the property letter and cannot even remember where the property is located.
Second, the applicant has not engaged in any hunting or shooting of a recreational nature since the property letter was granted in 2021.
Third, the applicant has not been trained to shoot vermin.
Fourth, Mr Kelly admitted to Senior Constable Keeble that he granted a lot of property letters due to his straightened financial circumstances and does not remember any of the people he sent the letters to, including the applicant. This evidence, together with the evidence of the applicant, casts doubt on whether it was ever intended that the applicant would engage in hunting or shooting of a recreational nature on the property the subject of the property letter.
Although I accept that the applicant could not use his Beretta once his Beretta had been seized and his firearm licence had been revoked, the applicant has at no time prior to the revocation demonstrated any interest in hunting or shooting of a recreational nature on the property the subject of the property letter.
Therefore, it is my opinion that the applicant has not shown that he has a genuine reason within s 11A(2)(c) of the Firearms Act for possessing the Beretta.
Prohibition on licence being issued if no genuine reason
A licence cannot be issued to a person, who in the Tribunal's opinion, has not been shown to have a genuine reason for acquiring or possessing the firearm for which the licence is sought. Accordingly, given the Tribunal's opinion that the applicant has not shown that he has a genuine reason for possessing the Beretta, a licence cannot be issued to the applicant.
Is the applicant a fit and proper person to hold a firearm licence within s 11(1)(c) of the Firearms Act?
Given that I have found that the applicant does not have a genuine reason for possessing the firearm for which the licence is sought, it is not necessary for me to determine whether or not the applicant is a fit and proper person to hold a licence under the Firearms Act.
The correct and preferable decision
I have decided that the correct and preferable decision is that the decision of the respondent to revoke the applicant's firearm licence should be affirmed. This is because I am of the opinion that the applicant does not have a genuine reason for possessing the Beretta because he is not an active member of an approved shooting club and because the Beretta is not for use in hunting or shooting of a recreational nature on land the owner of which has given written permission for that hunting or shooting.
Protection of identity of applicant
Under s 62 of the SAT Act the Tribunal may on its own initiative, in the circumstances described in s 61(4), order that any information that might enable a person who has appeared before the Tribunal to be identified is not to be published except in the manner and to the persons, if any, specified by the Tribunal.
The circumstances referred to in s 61(4) of the SAT Act are:
(a)to avoid endangering the national or international security of Western Australia or Australia; or
(b)to avoid damaging inter-governmental relations; or
(c)to avoid prejudicing the administration of justice; or
(d)to avoid endangering the physical or mental health or safety of any person; or
(e)to avoid offending public decency or morality; or
(f)to avoid endangering property; or
(g)to avoid the publication of confidential information or information the publication of which would be contrary to the public interest; or
(h)for any other reason in the interests of justice.
I have decided that it is in the interests of justice that the applicant in this matter should be identified as AT rather than by his name. This is to protect the identity of Ms X and Mr Y who are not parties to the proceeding and who did not appear as witnesses at the Hearing.
Orders
The Tribunal orders:
1.The application is dismissed.
2.The decision of the respondent to revoke the applicant's firearm licence number 10032201 is affirmed.
3.The name of the applicant is not to be published.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C Conley, MEMBER
26 NOVEMBER 2024
0
7
3