Eichner v Registrar of Firearms (Administrative Review)

Case •

[2016] ACAT 98

•

24 August 2016

ACT CIVIL & ADMINISTRATIVE TRIBUNAL



EICHNER v REGISTRAR OF FIREARMS (Administrative Review) [2016] ACAT 98

AT 99/2015

Catchwords:              ADMINISTRATIVE REVIEW- firearms licence – whether firearm substantially duplicates in appearance (regardless of calibre or manner of operation) a self-loading centre-fire rifle of a kind that is designed or adapted for military purposes

Legislation cited:      ACT Civil and Administrative Tribunal Act 2008 s 68

Firearms Act 1996 ss 5, 6, 7, 31, 42, 43, 52, 73, 143, 144, 145, 221, 223, 258, 275, sch 1, sch 3, sch 4

Cases cited:Bent v Commissioner of Police [2011] WASAT 143

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Esber v Commonwealth (1992) 174 CLR 430

Tribunal:                   Senior Member R Orr QC

Date of Orders:  24 August 2016

Date of Reasons for Decision:         24 August 2016

ACT CIVIL & ADMINISTRATIVE TRIBUNAL          AT 99/2015

BETWEEN:

DAVID EICHNER

Applicant

AND:

REGISTRAR OF FIREARMS

Respondent

TRIBUNAL:             Senior Member R Orr QC

DATE:24 August 2016

ORDER

The Tribunal orders that:

  1. The decision of the delegate of the Registrar of Firearms to refuse David Eichner a permit to acquire a Barrett M98B .338 Lapua Magnum bolt action rifle under the Firearms Act 1996 (ACT) is set aside.

  2. The Tribunal substitutes its decision to refuse the permit on the basis that the licence held by Mr Eichner does not allow him to purchase a prohibited firearm which, under schedule 1, items 5 and 8 of the Firearms Act, includes this rifle.

………………………………..

Senior Member R Orr QC

REASONS FOR DECISION

  1. David Eichner, the applicant in these proceedings, holds a shooting licence under the Firearms Act 1996 (ACT) (Firearms Act). He has sought review of a decision of the delegate of the Registrar of Firearms (Registrar) under the Firearms Act to deny him a permit to acquire a Barrett M98B .338 Lapua Magnum bolt action rifle (.338 Lapua Magnum rifle or rifle).

Summary of Tribunal decision

  1. The delegate of the Registrar gave five reasons for refusing the permit application. Of the five reasons given by the decision-maker, two have now been abandoned, and the evidence throws doubt on another two. Further, none of the five reasons was put to Mr Eichner during the application process, and he was not given an opportunity to provide evidence or submissions in relation to them.

  2. For these reasons the Tribunal thinks that the decision should be set aside. Given the significant evidence before the Tribunal, it is appropriate for the Tribunal to make the decision, rather than remit the decision back to the decision-maker.

  3. Section 145(1) of the Firearms Act provides that the Registrar must refuse to issue a permit to acquire a firearm unless the acquirer holds a licence authorising the acquirer to possess or use a firearm of the same kind as the proposed firearm. Section 52(1) of the Firearms Act provides that the categories of licences, the kinds of licences, the firearms to which they apply, and the possession or use they authorise are set out in schedule 3. Item 2 of schedule 3 provides that in relation to a category B licence, which is the relevant licence held by Mr Eichner, the firearms to which the licence applies are “the following firearms, other than prohibited firearms” (emphasis added).

  4. The concept of a ‘prohibited firearm’ is defined in section 7(1) to include a firearm described in schedule 1, which includes a firearm that substantially duplicates in appearance (regardless of calibre or manner of operation) a self-loading centre-fire rifle of a kind that is designed or adapted for military purposes (schedule 1, items 5 and 8). The Tribunal is satisfied that the .338 Lapua Magnum rifle falls within schedule 1, items 5 and 8. Therefore a permit cannot be granted.

The decision of the Registrar

  1. Mr Eichner was most recently granted an adult firearms licence (commonly called a ‘shooting licence’) for categories A, B and H in April 2015 (licence number N0000224). In answer to the question in the application form “what is your genuine reason for having a firearms licence” he responded: “target shooting and recreational hunting.”[1]

    [1]     Exhibit T1, T documents, document T25, pages 70-76

  2. In September 2015 Mr Eichner submitted a firearm permit application A10609 for the .338 Lapua Magnum rifle (FPA). In answer to the question as to the reason for acquisition he wrote: “club use/vermin control”. In answer to the question “what is your reason for requesting a permit” he answered: “hunting and target shooting”. He sought the permit for a category B firearm.[2]

    [2]     Exhibit T1, T documents, documents T34 and T35, pages 103-109

  3. The FPA was not approved, apparently in October 2015.[3]

    [3]     Exhibit T1, T documents, documents T34 and T35, pages 103 and 109

  4. On about 15 October 2015, Mr Eichner was asked to provide photographs of the firearm, and he did so, together with technical specifications, on about 1 November 2015.[4] A letter was also provided dated 8 October 2016 which confirmed Mr Eichner’s attendance at ACT long range shooting competitions held at the Canberra Rifle Club over the five years the competition has been operating.[5]

    [4]     Exhibit T1, T documents, pages 116-121

    [5]     Exhibit T1, T documents, page 110

  5. On 20 November 2015 Detective Sergeant Noble as the delegate of the Registrar wrote to Mr Eichner and provided five reasons for the refusal.[6]

    [6]     Exhibit T1, T documents, document T3, pages 10-13

  6. First, he stated that he had conducted some research which indicated the military nature of the rifle. He stated that “pursuant to Item numbers 8 and 5 of Schedule 1 of the Firearms Act 1996 (ACT) this firearm is prohibited”. These items are discussed further below.

  7. Second, the letter also stated that the rifle is fitted with a pistol grip and that pursuant to item number 12 of schedule 1 a firearm, other than a pistol, that is fitted with a pistol grip is prohibited.

  8. Third, in response to a statement in a letter attached to the application stating that Mr Eichner had attended some competition matches in long range shooting, Detective Sergeant Noble stated that he had received advice that “none of the ACT shooting ranges operate with a template with large enough ammunition limits to allow this calibre”. He stated that he was not satisfied that Mr Eichner had a good reason for acquiring the firearm for target shooting purposes. He noted information from Western Australia that there were no civilian rifle ranges there that cater for the .338 Lapua Magnum rifle.

  9. Fourth, he stated that he had been advised that the property size to shoot this rifle on would need to be well over 5,000 acres, and that the “ACT does not have properties of this size with ‘Scrub Bulls or Camels that need to be shot over 1,000 metres’ ”. He noted evidence given in a decision from Western Australia, Bent v Commissioner of Police [2011] WASAT 143 at [19], that the rifle is not primarily a hunting rifle but a rifle with military and sniper capacities over exceptionally long distances. Detective Sergeant Noble stated that he did not believe Mr Eichner had a good reason for acquiring the firearm for recreational hunting.

  10. Fifth, it was noted that by letter dated 8 May 2011 additional conditions were imposed on Mr Eichner’s licence, including that the total number of category A firearms he was permitted to possess was three, and the total number of category B firearms he was permitted to possess was five. It was said that he now possessed more in both categories, and that it appeared he contravened these conditions.

Hearing

  1. A decision to refuse to issue a permit to acquire a firearm under section 144 of the Firearms Act is a reviewable decision under section 258 and item 35 of schedule 4. The applicant for the permit may apply for review. The tribunal extended the time for making such an application to enable Mr Eichner to do so.

  2. This matter was heard by the Tribunal on 24 May 2016.

  3. Mr Eichner represented himself, and provided a Submission and outline of correct and preferable decision (exhibit A1), and a revised version of this Submission document as a reply (exhibit A2), both of which included submissions and evidence. He was cross-examined on that evidence. He also relied on a statement of John Coochey (exhibit A3), who was made available for cross-examination, and photographs (exhibit A4). Oral submissions were made at the hearing by Mr Eichner.

  4. The Registrar was represented by Mr Archer. In addition to the T documents (exhibit T1), a statement of Walter John Murphy dated 5 May 2016 was tendered (exhibit R1) and Mr Murphy was cross-examined on that statement. A Respondent’s statement of facts and contentions was also provided. Oral submissions were made. The Tribunal reserved its decision.

Structure of the regulation of firearms

  1. Section 5(1) of the Firearms Act sets out the underlying principles of the Act as follows:

    5Principles and objects of 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

    (ii)by promoting the safe and responsible storage and use of firearms; and

    (c)to facilitate a national approach to the control of firearms.

  2. Section 5(2) then sets out the objects of the Act which include:

    (a)   to prohibit the possession and use of all automatic firearms, self-loading rifles and shotguns (including pump action shotguns) except in special circumstances;

    (b)   to establish an integrated licensing and registration scheme for all firearms;

    (c)to require each person who possesses or uses a firearm under the authority of a licence to establish a genuine reason for possessing or using the firearm;

    (d)to provide strict requirements that must be satisfied in relation to the licensing of firearms and the acquisition and sales of firearms;

    …

  3. A person commits an offence if they possess or use a prohibited firearm[7] or a firearm[8] which is not authorised by a licence, permit or otherwise under the Firearms Act.[9] The general authorisation mechanism under the Act is broadly a two step process.

    [7] Section 7 of the Firearms Act

    [8] Section 6 of the Firearms Act

    [9] Sections 42 and 43 of the Firearms Act

  4. First, a person must obtain a firearms licence.[10] As discussed Mr Eichner held a relevant licence. A licence is subject to standard conditions[11] and the Registrar may impose additional conditions upon a licence.[12]

    [10] Part 7 of the Firearms Act

    [11] Section 73(1) of the Firearms Act

    [12] Section 73(3) of the Firearms Act

  5. Importantly for this case, section 52(1) provides that the categories of licences, the kinds of licences, the firearms to which they apply, and the possession or use they authorise are set out in schedule 3. Item 1 of schedule 3 provides that in relation to a category A licence, the firearms to which the licence applies are “the following firearms, other than prohibited firearms: …” (emphasis added) and this is followed by a list of firearms. Item 2 in relation to category B is in a similar form. As noted above the FPA concerns a category B firearm. Item 5 concerns a category H licence and refers to “pistols …, other than prohibited pistols”, and is not relevant here. The concept of a ‘prohibited firearm’ is defined in section 7(1) to mean (i) a firearm described in schedule 1; and (ii) a firearm prescribed by regulation; and (iii) something declared to be a prohibited firearm under section 31, and includes a modified firearm. Schedule 1 includes the following items:

    5.  a self-loading centre-fire rifle of a kind that is designed or adapted for military purposes

    …

    8.  a firearm that substantially duplicates in appearance (regardless of calibre or manner of operation) a firearm referred to in item 1, 5 or 6

  6. Second, a licensee must obtain a permit to acquire a firearm.[13] Section 143 of the Firearms Act provides that a person who is a licensee may apply to the Registrar for a permit to acquire a firearm. Section 144 then provides that the Registrar must issue the permit unless prevented from doing so by the Act.

    [13] Part 10 of the Firearms Act

  7. Section 145 then provides, in part:

    145Permits to acquire—refusal to issue generally

    (1)The registrar must refuse to issue a permit to acquire a firearm (the proposed firearm) unless—

    (a)the acquirer holds a licence authorising the acquirer to possess or use a firearm of the same kind as the proposed firearm; and

    (b)the registrar is satisfied on reasonable grounds that the acquirer has a good reason for acquiring the firearm.

  8. As to paragraph (a), as noted, Mr Eichner holds a relevant licence for category A, B and H firearms. The FPA was for a category B firearm. As also noted, section 52(1) provides that the categories of licences, the kinds of licences, the firearms to which they apply, and the possession or use they authorise are set out in schedule 3. In effect a category B licence does not authorise the possession or use of a prohibited firearm, which includes a firearm that substantially duplicates in appearance (regardless of calibre or manner of operation) a self-loading centre-fire rifle of a kind that is designed or adapted for military purposes (schedule 1, items 5 and 8). A key issue in these proceedings is whether the .338 Lapua Magnum rifle falls within this description in items 5 and 8 of schedule 1.

  9. As to paragraph (b) in section 145(1), the Registrar must refuse to issue a permit to acquire a firearm unless satisfied on reasonable grounds that Mr Eichner has a good reason for acquiring the firearm.

  10. Section 275 provides:

    275 Authorised possession or use of prohibited firearms with
    pistol grips for sport or target shooting

    (1) The holder of a category B licence issued for the genuine reason of
    sport or target shooting is authorised to possess and use a registered
    prohibited firearm (other than a prohibited pistol fitted with a pistol
    grip) for the purposes of—

    (a) taking part in any kind of approved shooting competition; and

    (b) practising on an approved shooting range for the competition.

    This provision was not raised by either party at the hearing. There was no evidence or submission that the .338 Lapua Magnum rifle was a registered prohibited firearm. The Tribunal has therefore not considered this provision relevant to the decision.

Bases for rejection

  1. Set out above at paras 11 to 15 are the five reasons given for refusal of the FPA. The first was that the rifle resembles a military firearm, and is therefore a prohibited firearm. This issue was the focus of the hearing in the Tribunal. In relation to his application, Mr Eichner was not advised that this was an issue, nor given an opportunity to put evidence or submissions on it to the decision-maker. The only relevant communication appears to be a request in an email dated 15 October 2015 asking for “one or more photographs, along with technical specifications, of the exact firearm that you are intending to acquire, register, possess and use” and “an honest disclosure that this will be the exact firearm (without change) that you will acquire, register, possess and use (subject to my approval).”[14] This did not indicate to Mr Eichner any possible basis for refusal.

    [14]    Exhibit T1, T documents, document T30, page 114

  2. The second reason was that the firearm was fitted with a pistol grip. This ground was not relied on at the hearing by the Registrar, apparently because Mr Eichner had addressed it.

  3. The third reason was that the decision-maker was not satisfied that Mr Eichner had a good reason for acquiring the firearm for target shooting purposes. It was said that none of the ACT shooting ranges operate with a template with large enough ammunition limits to allow this calibre.

  4. There is significant doubt about this statement. The T documents include a request from David Groves apparently of the Department of Defence to Sergeant Brett Cunningham of the ACT Firearms Registry dated 14 February 2011 asking for confirmation that “it will be OK to utilise .338 Lapua on the Canberra Rifle Club”. Sergeant Groves replied it was his decision “that the .338 Lapua can be used on the range provided frangible ammunition is used.”[15]

    [15]    Exhibit T1, T documents, document T40, page 131

  5. Further, these emails were provided to Detective Sergeant Noble attached to an email to him from David True, President, Sporting Shooters’ Association of Australia (SSAA) ACT Inc dated 4 November 2015. Mr True noted that the earlier email allowed for use of the .338 Lapua calibre rifles at the Canberra Rifle Club. Further Mr True advised that “SSAA have three events/competitions that come to mind that these rifle calibres can be used in …”.[16]

    [16]    Exhibit T1, T documents, document T40, page 130

  6. Mr Eichner also provided a letter dated 8 October 2016 which confirmed his attendance at ACT long range shooting competitions held at the Canberra Rifle Club over the five years the competition has been operating.[17] Mr Eichner gave evidence that a member of a national associations such as the SSAA would be able to shoot the .338 Lapua Magnum rifle in several authorised competitions around Australia.[18] He gave evidence that he had shot with the firearm and seen others do so at the Canberra Rifle Range.

    [17]    Exhibit T1, T documents, page 110

    [18]    Exhibit A1, Submissions of the applicant, page 10

  7. The fourth reason was that Mr Eichner did not have a good reason for acquiring the firearm for recreational hunting, in particular because the ACT does not have properties of sufficient size. Mr Eichner gave evidence that he had undertaken wildlife hunting in most States and was going to New Zealand in July, that there were significant areas in Australia where the rifle could be used, and that it was often necessary to use such a rifle for hunting larger animals humanely and safely. He stated:[19]

    As an ethical hunter who is committed to ensuring humane one shot kills of targeted animals, the .338 Lapua offers an ideal ballistic solution for achieving this objective. As a hunter who wishes to pursue his recreational past time with as high a degree of personal safety as can be achieved under often challenging circumstances, the .338 Lapua Magnum also offers the ideal ballistic solution for achieving that objective.

    Mr Eichner provided a range of documents which supported his views.

    [19]    Exhibit A1, Submissions of the applicant, page 14

  8. The fifth reason concerned alleged conditions on the licence. This was not relied on by the Registrar at the hearing.

  9. Under section 68 of the ACT Civil and Administrative Tribunal Act 2008 the Tribunal must confirm, or vary, or set aside and substitute or remit the original decision. The Tribunal conducts merits review of an administrative decision, and in doing so is required to stand in the shoes of the original decision maker, and make the correct or preferable decision.[20]

    [20] Section 68 of the ACT Civil and Administrative Tribunal Act 2008 (ACT); Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419; Esber v Commonwealth (1992) 174 CLR 430 at 440

  10. Of the five reasons given by the decision-maker, two have now been abandoned (the second and fifth), and the evidence, both at the time of the decision and at the Tribunal hearing, throws significant doubt in relation to matters raised as a basis for another two (the third and fourth). Further, none of the five reasons was put to Mr Eichner before the decision, and he was given no opportunity to provide evidence or submissions in relation to them.

  11. On this basis,  the decision should be set aside. Given the significant evidence before the Tribunal, it seems appropriate for it to make a substitute decision, rather than remit this to the decision-maker.

Substantially duplicates in appearance a military firearm?

  1. In considering the FPA, a key issue is whether Mr Eichner holds a licence authorising him to possess or use a firearm of the kind proposed to be acquired.[21] As noted, section 52(1) provides that the categories of licences, the kinds of licences, the firearms to which they apply, and the possession or use they authorise are set out in schedule 3. In effect a category B licence does not authorise the possession or use of a prohibited firearm, which includes a firearm that substantially duplicates in appearance (regardless of calibre or manner of operation) a self-loading centre-fire rifle of a kind that is designed or adapted for military purposes.[22]  

    [21] Section 145(1)(a)

    [22] Schedule 1, items 5 and 8

  2. The Registrar relied on the statement of Walter John Murphy dated 5 May 2016 (exhibit R1). Mr Murphy is a scientific officer attached to the Forensic Ballistic Investigation Section (FBIS), Firearms Identification and Tracing Unit, Forensic Services Group in the NSW Police Force. He is currently co-ordinator of the FBIS. He has had very significant experience with firearms in the Australian Defence Force (ADF) and the NSW Police Force, and has completed a wide range of courses in firearms.[23]

    [23]    Exhibit R1, statement of Walter Murphy at [1]

  3. In summary, Mr Murphy stated that in his opinion the “Barrett M98B bolt action repeating rifle … is a prohibited firearm … under Schedule 1, item 8” of the Firearms Act, as it “substantially duplicates in appearance a firearm referred to in Schedule 1, items 1 and 5.”[24]

    [24]    Exhibit R1, statement of Mr Murphy at [10] on page 17

  4. This conclusion is based on a number of reasons. Mr Murphy stated that the .50 BMG calibre Barrett M107A1 ‘Light Fifty’ self-loading rifle is also manufactured by Barret Firearms Manufacturing (Light Fifty). He stated that this and similar models are currently issued worldwide to various militaries, including the ADF. The .338 Lapua Magnum rifle is said to be manufactured with many of the military and tactical styling cues taken from the Light Fifty, and is marketed for the growing military and tactical style firearms market. Sales and marketing literature highlights this.[25]

    [25]    Exhibit R1, statement of Walter Murphy at [6] and [7]

  5. Mr Murphy also noted that the .338 Lapua Magnum rifle and the Light Fifty, although of a different calibre and method of operation, share similar overall lengths and visual characteristics in their appearance. He listed a significant number of similarities. The .338 Lapua Magnum rifle is also in his opinion similar in appearance when compared to other military type rifles.[26]

    [26]    Exhibit R1, statement of Water Murphy at [8] and [9]

  6. Mr Murphy also noted that there are a multitude of manufacturers that are producing bolt action sporting rifles that are not prohibited.[27]

    [27]    Exhibit R1, statement of Walter Murphy at [10] on page 11

  7. The Registrar argued that on the basis of this evidence the firearm is a prohibited firearm, it will fall outside the category B firearms licence[28], and thus a permit to acquire the firearm must be refused under section 145(1)(a). The Western Australian decision in Bent v Commissioner of Police [2011] WASAT 143 (Bent), although under different legislation and focussing on whether the licensee had a reasonable justification, or genuine reason, to acquire, did not allow acquisition of a .338 Lapua Magnum rifle in similar circumstances.

    [28] See item 2 of schedule 3 to the Firearms Act

  8. Mr Eichner argued that the purpose of this prohibition was to prevent fear and panic in the civilian community. He noted that a parallel prohibition was included in the Customs (Prohibited Imports) Regulations 1956 (Cth) under the National Firearms Agreement of 1996. The Explanatory Memorandum for the Firearms Amendment Bill 2008 (ACT) at page 58 stated in relation to changes to schedule 1 that “where appropriate, descriptions used in the Customs (Prohibited Imports) Regulations 1956 have been adopted.”

  9. Mr Eichner argued that since the firearm must have been imported into Australia, then it must have complied with the requirements of the Customs (Prohibited Imports) Regulations, and therefore must have been held to fall outside the equivalent prohibition there, and should be held to fall outside the related prohibition in the Firearms Act.[29] The Tribunal notes that in support of Mr Eichner’s submission section 5(1)(c) of the Firearms Act provides that one of the underlying principles of this Act is to facilitate a national approach to the control of firearms. It is likely that the decisions of the courts or tribunals of other jurisdictions, and perhaps decisions of their regulators, as to the interpretation of provisions of their firearms legislation will be relevant to the interpretation of similar provisions of the Firearms Act.

    [29]    Exhibit A1, Submissions of the applicant, pages 2 and 5

  10. But the Tribunal was not provided with any information about the customs decision. It is not known when the firearm was imported, nor what the relevant customs regulations provided at that time, nor the basis for the customs decision. There is therefore very limited basis for taking this decision into account. Further, the Customs (Prohibited Imports) Regulations and the Firearms Act deal with a different aspect of the regulation of firearms. Principal regard must therefore be had to the terms of the relevant items of schedule 1 of the Firearms Act. The mere fact of importation at some time cannot prevent application of the specific terms of the Firearms Act, even though this Act and the customs regulations both seek to implement similar policies.

  11. This is not a case which gives rise to an argument for legal inconsistency between the Commonwealth Regulations and the ACT Act, since here, as noted, these laws deal with different aspects of the regulation of firearms.[30]

    [30] Section 28 of the Australian Capital Territory (Self-Government) Act 1988 (Cth)

  12. Mr Eichner also suggested that other similar rifles may have been granted a permit in the ACT. He provided a letter from the Deputy Chief Minister, Simon Corbell, dated 11 April 2016 which indicated that “there are eleven .338 Lapua Magnum rifles registered in the ACT” and that “there are 701 other rifles registered in the ACT with a calibre of .338 or above”.[31] Mr Eichner also provided a statement by John Coochey who has had significant experience in relation to Defence arms and training in firearms, and he stated that he was “the current licence holder for a Remington 700 (basis for both US Army and Marines sniper rifles) in 338 Lapua Magnum”.[32]

    [31]    Exhibit A1, Submissions of the applicant, Attachment G

    [32]    Exhibit A3

  13. The existence of other decisions by the Registrar, which are possibly inconsistent with the relevant terms of the Firearms Act, is not of itself enough to override those terms. Of course consistency of decision-making is an important aspect of good administration. At the hearing it was indicated that the Registrar is reviewing the position with regard to the permits for other similar firearms, and was aware of the need for consistency in this regard. Section 152(1) of the Firearms Act requires the cancellation of a permit if, had the permit-holder been applying for the permit held, the Registrar would be required to refuse to issue the permit.

  14. Mr Eichner also argued that there was a very large element of subjectivity in the decision, this gives enormous discretion to individual police officers, and that in this case it had been exercised unreasonably.[33] He argued that it was not reasonable to decide this matter on appearance alone, rather it should be done on performance.[34] But item 8 specifically requires attention to appearance.

    [33]    Exhibit A1, Submissions of the applicant, pages 2, 3 and 6

    [34]    Exhibit A1, Submissions of the applicant, pages 4 and 5

  15. Mr Eichner also argued that there were more effective mechanisms for dealing with the relevant mischief, namely that such firearms may cause unnecessary fear and panic in the community. He referred to section 221 of the Firearms Act which prohibits a person, without reasonable excuse, having a firearm in their possession in or near a street or public place and similarly discharging a firearm, and section 223 which prohibits a person, without reasonable excuse, carrying or using a firearm in various ways. But notwithstanding these provisions, the Firearms Act also makes this issue relevant to the grant of a permit.

  16. The evidence of Mr Murphy supports a finding that the .338 Lapua Magnum rifle is a prohibited firearm, in that it substantially duplicates in appearance (regardless of calibre or manner of operation) a self-loading centre-fire rifle of a kind that is designed or adapted for military purposes. It is true, as Mr Eichner argued, that the decision involves matters of impression, or a subjective assessment, but Mr Murphy has significant expertise in this area and provided a clear opinion, supported by evidence and reasoning. The Tribunal is of the view that his view should be accepted.

  17. Further, the terms of item 8 require only that a firearm “substantially duplicates” “a self-loading centre-fire rifle of a kind that is designed or adapted for military purposes.” The fact that the decision may be one of impression, or that there may be some differences between the relevant rifle and military rifles, does not prevent a finding of “substantial duplication”. The purposes of the Firearms Act set out in sections 5(2)(a) and (c) suggest that where there is a basis for finding that a permit should not be granted, that this should not be lightly disregarded. As noted, the result in Bent supports denial of the FPA.

  18. The Tribunal is satisfied that the .338 Lapua Magnum rifle is a firearm that substantially duplicates in appearance (regardless of calibre or manner of operation) a self-loading centre-fire rifle of a kind that is designed or adapted for military purposes, is therefore a prohibited firearm, that it cannot be acquired under a category B licence (section 52(1) and schedule 3, item 2) , and that the FPA must be refused under section 145(1). The Tribunal therefore decides to refuse the FPA.

………………………………..

Senior Member R Orr QC

HEARING DETAILS

FILE NUMBER:

AT 99/2015

PARTIES, APPLICANT:

David Eichner

PARTIES, RESPONDENT:

Registrar of Firearms

COUNSEL APPEARING, APPLICANT

N/A

COUNSEL APPEARING, RESPONDENT

Mr K Archer

SOLICITORS FOR APPLICANT

N/A

SOLICITORS FOR RESPONDENT

ACT Government Solicitor

TRIBUNAL MEMBERS:

Senior Member R Orr QC

DATES OF HEARING:

24 May 2016

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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BENT and COMMISSIONER OF POLICE [2011] WASAT 143
Seyfarth v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 105
Esber v the Commonwealth [1992] HCA 20