Glen v Registrar of Firearms - [2011] SADC 22

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
GLEN v REGISTRAR OF FIREARMS
[2011] SADC 22
Judgment of His Honour Judge Beazley
28 February 2011
ADMINISTRATIVE LAW
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - LICENCES AND RELATED MATTERS - LICENCES - ISSUE OF AND GENERALLY
Appeal against decision of Registrar of Firearms refusing to grant to the appellant a firearms licence - Registrar not satisfied that the appellant was a fit and proper person to hold a firearms licence - decision affirmed by Firearms Review Committee - whether the appellant is a fit and proper person to hold such a licence - consideration of appellant's antecedents and the legislative scheme underpinning the grant of licences under the Act.
Held: Appeal allowed.
Firearms Act, 1977 ss5; 12; 20; 26B; 26C; Firearms Regulations, 2008 Regulations 5A; 21; 38; District Court Act, 1991 ss 42E(3); 42F; 42G, referred to.
A Solicitor v Law Society of New South Wales (2004) 216 CLR 253; Pollitt v Police (2007) SASC 302; Registrar of Firearms v Gitsham (2002) 84 SASR 72; Johnson v Registrar of Firearms (2001) 79 SASR 353; Police v Losapio (2007) SASC 159; Commissioner of Police v Davies (2000) NSWSC 107; Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321; Sobey v Commercial and Private Agents Board (1979) 22 SASR 70; Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 387; Pav v Commercial & Private Agents Board (1988) 143 LSJS 1, considered.

GLEN v REGISTRAR OF FIREARMS
[2011] SADC 22
Introduction

Stephen John Glen (“the appellant”) appeals pursuant to s 26C of the Firearms Act 1977 (“the Act”) against the decision of a Delegate of the Registrar of Firearms to refuse his application for a firearms licence (“the Registrar”). The decision of the Registrar was affirmed by the Firearms Review Committee (“the Committee”) on 8 December 2009.
The powers of the Committee are confined to affirming the decision of the Registrar or remitting the matter back to the Registrar for further consideration. The Committee did not have the power to substitute its own decision for that of the Registrar.[1]
[1] Section 26B (8) Firearms Act 1977
This appeal involves matters of some importance. There was a long and unexplained delay between 16 October 2007 when the appellant lodged his application with the Registrar, and 10 June 2009, when the Registrar notified the appellant of the refusal. The basis of the refusal was that the Registrar was not satisfied that the appellant was a fit and proper person to be granted a firearms licence. Implicit in those issues is whether, as a matter of fairness, the Registrar, in relying upon a police report as to an applicant’s alleged antecedents ought be obliged to provide a copy to that applicant for his comments before determining the application.
During the period of delay, on 27 November 2008, significant amendments were made to the Firearms Act and Regulations which included the expansion of the definition of “a fit and proper person to hold a licence”[2]; and the establishment of the Firearms Review Committee with powers of review.[3]
[2] Section 5 (11) – (13) of the Firearms Act and Regulation 5A of the Firearms Regulations 2008
[3] Section 26B of the Firearms Act
The Act
Before discussing the factual background and the respective reasons of the Registrar of Firearms and the Firearms Review Committee, it is necessary to set out the relevant legal principles.
The entitlement to possess certain categories of firearms is strictly controlled in South Australia by the Firearms Act 1977. It is necessary for any person who wishes to possess such a firearm to obtain a licence in an approved form.
·The objects of the Act
The purpose of the legislation was explained by Gray J in Pollitt v Police (2007) SASC 302 at paragraphs [20] to [23] as follows:
The overriding policy of the Firearms Act is to protect the public from the unsafe or criminal use of firearms. The legislative scheme was considered in Johnson v Registrar of Firearms, and in Offe v Police. The legislation provides a comprehensive scheme dealing with gun control, gun ownership, collection and dealing. Parliamentary debates indicate that the Firearms Act was designed to strictly control the possession and use of firearms in response to their increasing use by persons in serious offences and the proliferation of dangerous weapons in the community. Its purpose included the provision of community protection through the licensing and regulation of firearms. Parliamentary debates indicate that the Act was:
designed to introduce stricter controls upon the possession and use of firearms. The rapid increase in the number of serious offences involving the use of firearms, and the proliferation of extremely dangerous weapons, make stricter control necessary to safeguard the community.
In 1996 amendments were made to the Act, introducing stricter gun laws throughout Australia:
In an historic move on 10 May 1996 the Australasian Police Ministers' Council agreed to a series of resolutions to introduce national uniform gun laws. The underlying thrust of those resolutions is that gun ownership is not a right, it is a conditional privilege.
The legislation aimed to ensure that only responsible persons with appropriate licences were able to access firearms. It provides clear direction as to licensing, storage and use of firearms. Some kinds of firearms are viewed more seriously and the legislation provides greater restriction and controls in such instances.
Further in Police v Losapio (2007) SASC 159 at paragraphs [20] – [21], David J said:
The possession of firearms is a privilege and a serious responsibility. It is entirely consistent with the legislative scheme that the holders of firearms licences be carefully scrutinised to ensure they are of appropriate character to bear this responsibility. At the same time, characters change over time and offences in the past need not permanently prevent an individual from holding a firearms licence.[4]
·The relevant sections of the Act
[4] See also Davies v Registrar of Firearms (2005) SASC 149, Registrar of Firearms v Gitsham (2002) 84 SASR 72 and Johnson v Registrar of Firearms (2001) SASC 51
The Act creates different classes of firearms. In the subject case the appellant sought the grant of a licence in respect of classes A, B, C and D. They are respectively defined in s 5(1) of the Act as follows:
(1)    In this Act, unless the contrary intention appears,
class A firearms means—

(a)    air rifles, air guns and paint-ball firearms; and

(b)    .22 rim fire rifles (not being self-loading rifles); and
(c)single or double barrel shotguns (not being self-loading or pump action shotguns), and includes receivers of firearms defined as class A firearms by a preceding paragraph;
class B firearms means—
(a)muzzle loading firearms (not being handguns); and
(b)revolving chamber rifles; and
(c)centre fire rifles (not being self-loading centre fire rifles); and
(ca)     double barrel centre fire rifles that are not designed to hold additional rounds in a magazine; and
(d)break action combination shotguns and rifles; and
(e)     all other firearms (not being prescribed firearms, handguns, self-loading firearms or pump action shotguns) that are not class A firearms,
and includes receivers of firearms defined as class B firearms by a preceding paragraph;
class C firearms means—
(a)     self-loading rim fire rifles having a magazine capacity of 10 rounds or less; and
(b)     self-loading shotguns having a magazine capacity of five rounds or less; and
(c)pump action shotguns having a magazine capacity of five rounds or less, and includes receivers of firearms defined as class C firearms by a preceding paragraph but does not include revolving chamber rifles or receivers of revolving chamber rifles;
class D firearms means—
(a)     self-loading rim fire rifles having a magazine capacity of more than 10 rounds; and
(b)     self-loading centre fire rifles; and
(c)     self-loading shotguns having a magazine capacity of more than five rounds; and
(d)pump action shotguns having a magazine capacity of more than five rounds,
and includes receivers of firearms defined as class D firearms by a preceding paragraph but does not include revolving chamber rifles or receivers of revolving chamber rifles;
Section 6 appoints the Commissioner of Police to be the Registrar of Firearms and permits him to delegate that authority.
Section 12(2) provides that an application for a licence must be made to the Registrar. The Registrar is not permitted to issue a firearms licence unless satisfied as to the identity, age and address of the applicant and that the applicant intends to use the firearm for the purpose endorsed on the licence pursuant to s 12(5) of the Act.
Prima facie there appears to be a distinction between an application for “a prescribed firearm” on the one hand, and all other licences classes of firearms on the other. The maximum penalty for possession of a “prescribed firearm” is significantly higher than those for the possession of other classes of firearms.
The Registrar cannot grant a “prescribed firearm” licence pursuant to s 12(7) unless he is satisfied that the prescribed firearm will be used for an authorised purpose and that the applicant is fit and proper to possess a prescribed firearm. By contrast, in respect of other classes of firearms the Registrar may only refuse the application if the grounds set out in s 12(6)(a)(i) – (vi) are not satisfied; in this case, relevantly: –
(a) – (i)the Registrar is not satisfied that the applicant is a fit and proper person to hold the licence applied for; or
(ii) the proposed licence would authorise possession of a Class C or D firearm and the Registrar would not be prepared to grant a permit to the applicant to acquire a firearm of that Class.
In the event any such distinction is illusory as the Registrar was not satisfied that the appellant was a fit and proper person to obtain a firearm licence.
By the time the Registrar considered the application in June 2009, the definition of “fit and proper” was expanded in ss 5(10) to (13) as follows:
5—Interpretation
(10)   For the purposes of this Act a person who has a mental or physical condition that would make it unsafe for him or her to possess a firearm or ammunition must be taken not to be a fit and proper person to have possession of a firearm or ammunition or to hold or have possession of a licence.
(11)   For the purposes of this Act a person may be taken not to be a fit and proper person to have possession of a firearm or ammunition or to hold or have possession of a licence if the person—
(a)has not complied with the requirements of this Act in relation to the safe handling, carriage or use of firearms; or
(b)has been found guilty of an offence against this Act or corresponding legislation of another State or Territory of the Commonwealth; or
(c)has been found guilty of an offence involving actual or threatened violence in this State or any other State or Territory of the Commonwealth or in any other part of the world; or
(ca)    has been found guilty of an offence prescribed by regulation; or
(d)has been guilty of fraud or deception for the purpose of obtaining a licence or permit under this Act or under corresponding legislation in another State or Territory of the Commonwealth; or
(e)is the subject, or has in the past been the subject, of a domestic violence restraining order under the Domestic Violence Act 1994 or any other order of a similar nature made by a court whether in this State or any other State or Territory of the Commonwealth.
(12)   Subsection (11) does not limit the grounds on which a person may be taken not to be a fit and proper person for the purposes of this Act.
(13)   In deciding whether a person is a fit and proper person to have possession of a firearm or ammunition or to hold or have possession of a licence for the purposes of this Act, regard may be had to the reputation, honesty and integrity of the person and of people with whom the person associates.
The Firearms Regulations 2008
The Firearms Regulations 2008 commenced on 27 November 2008, namely well after the subject application was issued by the appellant. Regulation 5A provided that in assessing whether a person may be taken to be fit and proper pursuant to Section 5(11)(ca) of the Act, the “prescribed offences” therein were respectively:
(a)    Controlled Substances Act 1984—
an indictable offence against section 32 as in force immediately before the commencement of the Controlled Substances (Serious Drug Offences) Amendment Act 2005;
an offence against section 32 (Trafficking) as in force following the commencement of the Controlled Substances (Serious Drug Offences) Amendment Act 2005;
section 33 (Manufacture of controlled drugs for sale);
section 33A (Sale, manufacture etc of controlled precursor);
section 33B (Cultivation of controlled plants for sale);
section 33C (Sale of controlled plants);
section 33F (Sale, supply or administration of controlled drug to child);
section 33G (Sale, supply or administration of controlled drug in school zone);
section 33H (Procuring child to commit offence);
an indictable offence against section 33I (Supply or administration of controlled drug);
section 33J (Manufacture of controlled drugs);
section 33K (Cultivation of controlled plants);
(b)     Criminal Law Consolidation Act 1935—
section 19AA (Unlawful stalking);
section 31 (Possession of object with intent to kill or cause serious harm);
section 32 (Possession of a firearm with intent to commit an offence);
an aggravated offence against section 169 (Serious criminal trespass — non-residential buildings);
an aggravated offence against section 170 (Serious criminal trespass — places of residence);
section 248 (Threats or reprisals relating to persons involved in criminal investigations or judicial proceedings);
section 250 (Threats or reprisals against public officers);
section 270D (Going equipped for commission of offence against the person);
(c) Serious and Organised Crime (Control) Act 2008—
section 22 (Offence to contravene or fail to comply with control order);
section 32 (Offence to contravene or fail to comply with public safety order);
section 35 (Criminal associations);
(d)     Summary Offences Act 1953—
section 15A (Possession of body armour);
section 74BJ (Hindering removal or modification of fortifications);
(e)    offences consisting of a conspiracy or an attempt to commit an offence referred to in a preceding paragraph.
“Fit and Proper” under the Act and Regulations
Both counsel approached the appeal on the basis that the amended Regulation 5A applied to it.[5] The Act and Regulations have a prospective effect, however provide that an applicant’s criminal antecedents are relevant to the assessment of fitness and propriety. I proceed on the basis that s 5(ca) and Regulation 5A do so apply.
[5] c.f. Commissioner of Police v Davies [2000] NSWSC 107
In any event s 5(12) of the Act makes it clear that such an enquiry as to fitness is not limited by s 5(11) and the Court may take other matters into account.
Parliament is clearly concerned about the fitness and propriety of applicants who have previous offences of this nature.
By contrast with some interstate legislation which provide that upon a breach of a prescribed offence the licence cannot be granted;[6] the subject Act and Regulations does not mandate such a refusal of the application.
[6] See Firearms Act, 1989 (NSW) Section 25(1)
Background
The appellant is aged 47 years. When he made the subject application for a firearms licence on 16 October 2007 he was an apiarist producing up to 75 tonne of honey. Since age 21 he has been the holder of a Class 3 Specialist Permit entitling him to keep crocodiles, venomous snakes and various lizards. For many years he has been involved with the rescue of various forms of wildlife and was in the process of purchasing 100 acres at Corny Point with a view to establishing an animal wildlife sanctuary and rescue centre.
He had, until approximately 1993, been the holder of the appropriate firearms licence. However at that time he did not seek to renew his licence.
The appellant had suffered a heart attack in 2009, and had recovered well from it.
He had subsequently inherited a .308 rifle from his late father, and a combination of these factors had led to the application.
The application for a licence dated 10 October 2007
The appellant made the subject application for a firearms licence in the form approved by the Registrar.[7]
[7] Section 12 of the Act and Regulation 10 of the Regulations.
The appellant sought a firearms licence for Classes A, B, C and D for the respective uses – “1(target shooting-not club use), 2(hunting) and 5(primary production).” He described himself as a primary producer but one with the need to humanely deal with animals which were too severely injured to be rescued, as well as to deal with any emergencies in respect of dangerous animals at the proposed wildlife sanctuary and rescue centre. There has been no dispute about those matters.
The decision of the Registrar of Firearms
When the Registrar ultimately came to consider the application in June 2009, the question before him was whether he was satisfied that the appellant was then presently fit and proper to be granted the firearms licence.[8]
[8] See A Solicitor v Law Society of New South Wales (2004) 216 CLR 253
By letter dated 10 June 2009 the Delegate of the Registrar of Firearms notified the appellant that his application had been refused on the following grounds:
… the Delegate is not satisfied that you are a fit and proper person to hold a firearms licence. The decision is based on your court appearances for various offences – pursuant to section 5(12) of the Act, and having been the subject of a restraining order pursuant to section 5(11)(e) of the Act. (my emphasis)
The Report to the Delegate
Enclosed with the notification was a report purportedly detailing the appellant’s criminal antecedents, and a restraining order which had been made on 1 September 1992 and revoked on 28 May 2009.[9]
[9] Report from Senior Adjudicator Firearms Branch to Delegate of the Registrar of Firearms dated 4 June 2009
The report had not been provided to the appellant prior to the Registrar’s decision to refuse the application, notwithstanding it was the source material for that refusal.
The relevance of those alleged antecedents dominated the submissions of both counsel. The appellant’s counsel submitted that the Registrar had erred in failing to look beyond the mere recording of “appearances”, so as to exclude appearances in respect of which the appellant was not convicted.
Counsel for the respondent very properly conceded, on the facts of this appeal, that “offences” which had been dismissed or not proceeded with ought to have been ignored, and are not relevant to the assessment of fitness and propriety.[10] One of the issues on appeal is whether those irrelevant matters did adversely influence the respondent, in the decision to refuse the appellant’s application. Accordingly, it is necessary to analyse in some detail, the matters set out in the report. There is no need to set out those “appearances” in full.
[10] Contrast on its facts, Pav v Commercial and Private Agents Board (1988) 143 LSJS 1
The appellant’s alleged antecedents were in fact a list of “court appearances” dating back to 1981, when he was aged 17 years. The report discloses some 30 Court appearances, of which only 7 had occurred in the 10 year period prior to the decision of the Registrar.

While the appellant had been charged with a total of 69 offences over that 28 year period, some 12 of those alleged offences were either “dismissed”, “withdrawn” or “not proceeded with”. Some 28 of the alleged offences were driving related, the last of which had occurred in 2004. Some 13 alleged offences related to obtaining monies for fares in 1991 and were dealt with on the one sentencing occasion by the imposition of bonds. Various assorted offences of offensive language and behaviour pre-dated 1995.
None of the “appearances” involved firearms let alone a breach of the Firearms Act.
There were however some 8 offences of possessing or producing a controlled substance over that 28 year period in respect of each of which the appellant was fined. These were dated 25 February 1981, 28 July 1983, 25 January 1990, 21 April 1992, 29 October 1992, 12 December 1997, 25 November 2002 and 15 November 2004.
The author of the report highlighted, presumably as highly relevant factors, the last three of those drug offences; a fire event in 2004 and a restraining order made in 1992. Those specific matters and their respective outcomes were as follows:-
FURTHER INFORMATION
On 16 January 1997police attended Mr Glen’s property. Upon searching the premises they located nine cannabis plants, approx ½ metre tall and eight cannabis seedlings growing hydroponically. [This resulted in a conviction and fine of $450.]
On 21 August 2002 police, acting on information received, attended Mr Glen’s premises. They searched the property and found 6 cannabis plants growing hydroponically. [This resulted in a conviction and fine of $300.]
On 29 July 2004 police attended Mr Glen’s home and found four cannabis plants and a number of cannabis cuttings growing under lights. [This resulted in a conviction and fine of $250.]
On 27 April 2007 police attended Mr Glen’s property. On arrival police saw a large fire on the property. Mr Glen was found maintaining a fire during fire danger season and was not present whilst the fire remained lit. It is alleged he then refused to state his full name to the police and hindered the police in the execution of his duty, namely investigation of the fire. [The charge of lighting a fire resulted in a conviction and fine of $100. The remaining two counts were dismissed.]
RESTRAINING ORDERS
Mr Glen has been the subject of a restraining order. The order was confirmed on 01/09/1992, (no firearms orders included due to the age of the restraining order). The order was revoked in the Elizabeth Magistrates Court on 28 May 2009.
REASONS FOR REFUSAL
·Court appearances and convictions – pursuant to Section 5(12).
·Has been the subject of a restraining order – pursuant to Section 5(11)(e).
The application for review
By letter dated 7 July 2009 the appellant sought a review by the Firearms Review Committee of the decision of the delegate of the Registrar pursuant to s 26B of the Act. The Committee had before it a great deal of material which had not been before the Registrar. Included in that material were testimonials; an explanation as to the grant and revocation of the restraining order; and some background facts to assist in understanding the antecedent report which had now been produced to the appellant.
The grounds of that review were detailed in a submission by the appellant dated 27 November 2009, inter alia, that:
·The appellant had never committed any offence involving a firearm
·The appellant had never committed any offence of assault or of threatening violence.
·The convictions in the antecedent report were generally of a driving nature or were minor offences which resulted in fines over the many years dating back to 1981.
·The restraining order related to a false claim of rape made by an estranged partner in respect of which the appellant was subsequently unanimously acquitted.
·The appellant had been continuously employed since he was aged 15 years, and has a strong work ethic.
·The appellant had provided some 9 testimonials in support of his reputation, honesty and integrity in the community.
·The appellant was employed as a primary producer and as such was engaged “in the bush” for 4 to 5 months per annum; and accordingly had a need for a firearm to humanely deal with injured or dangerous animals.
The Respondent on appeal, did not challenge the appellant’s explanation as to the grant and revocation of the restraining order, nor the background facts behind his recorded convictions.
The decision of the Firearms Review Committee
On 8 December 2009 the Committee determined to affirm the decision of the Delegate of the Registrar to refuse the appellant’s application for a firearms licence. In its minutes of meeting the Committee noted that while the appellant had “made a start to improve his behaviour, the past 26 years of offending has continued until recently with a repetition of similar/same offences. It is considered necessary for more time to elapse to prove that his previous pattern has changed.”
By letter dated 10 December 2009 the appellant was notified of the Committee’s decision and that it was based upon:
·Continued persistent offending including repeated drug matters, drink driving matters and dishonesty matters.
·
It is felt that more time should elapse to prove that your behaviour pattern has changed.

Notice of Appeal
The appellant by Notice dated 8 January 2010 appeals to this Court against the decision of the delegate of the Registrar of Firearms. It is an appeal pursuant to s 26C of the Act against the decision of the Registrar.
The four grounds of appeal, in effect, were summarised in the appellant’s written submissions to the Firearms Review Committee.
In essence he complains that too much weight was placed upon the appellant’s alleged criminal antecedents, and that the Registrar and the Firearms Review Committee had erred in taking into account alleged offences which had been dismissed. Implicitly he complained that contrary to the Reasons of the Committee, in the 10 year period to 2009, there had been only one offence of drink driving, two drug offences and no offences of dishonesty.
Although there was no specific ground of appeal that the Delegate ought to have provided a copy of the antecedent report to the appellant for his comments, this ground was implicit in the respective submissions of counsel.
Nature of the Appeal
Section 26C of the Act provides that a person aggrieved by a decision of the Registrar that has been affirmed by the Firearms Review Committee may appeal to this Court.
Section 42E of the District Court Act 1991 provides that upon the hearing of such appeal:
(1)The Court must, on an appeal, examine the decision of the original decision maker on the evidence or material before the original decision maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2) The Court, on an appeal –
(a)is not bound by the rules of evidence but may inform itself as it thinks fit;
and
(b) must act accordingly to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it, and not depart from the decision except for cogent reasons.
Submissions of the Appellant
Counsel for the appellant concentrated his submissions upon the appellant’s alleged criminal antecedents. He conceded that even at common law such previous offences must be a significant factor as to whether a person was fit and proper.[11]
[11] Sobey v Commercial Agents Board (1979) ss SASR at 75
He submitted however that the facts of the subject appeal distinguished it from cases such as Police v Losapio,[12] where the offences of producing cannabis and failing to secure a firearm had occurred within 7 months of the application.
[12] [2007] SASC 112
The appellant’s counsel submitted that the delegate of the Registrar and indeed the Committee had failed to look at the factual bases of the three cannabis offences which had occurred respectively on 16 January 1997, 21 August 2002 and 29 July 2004, nor had they looked at the background facts underlying the charges relating to a fire on the appellant’s property during the fire danger season on 27 April 2007.
He submitted that these errors were crucial in respect of the restraining order. That order had been made on 1 September 1992, some 17 years before the subject application had been considered by the delegate to the Registrar. It had been made in consequence of a complaint of rape by the appellant’s former domestic partner. He submitted that the Registrar was either unaware of that history or gave no weight to the fact that at a subsequent trial, the appellant was unanimously acquitted. In that 17 year period there had been no breach of restraining order.
As to the three cannabis convictions identified as relevant by the Regisrar the appellant pointed to the fact that they had respectively occurred 12 years, 7 years and 5 years prior to the determination by the Registrar. Each had resulted in the imposition of a fine.
As to the charges of maintaining of a fire, and refusing to state his name and hindering police, on 27 April 2007, it was submitted that the Registrar had failed to note that the Court had accepted the appellant’s explanation of a simple error as to the date of the end of the fire danger season, and, more significantly, that the charges of refusing to state his full name and hindering police had been dismissed.
Finally he submitted that the appellant had changed markedly since 2002, having survived a heart attack as disclosed in a medical report presented to the Firearms Review Committee.[13] He referred to the various testimonials presented to the Board in which the authors had deposed to the character of the appellant as at 2009, and which he submitted were given no weight.
[13] Report of Dr Margaret Antall 14 Sept 2009
He accordingly submitted that the express findings of the Committee to the effect that the appellant’s “persistent offending had continued until recently”, could not be justified.
Submissions of the Respondent
Counsel for the respondent submitted that there were no cogent reasons to depart from the decision of the Registrar.[14] While conceding that “appearances” which did not result in a conviction ought to have been disregarded, he submitted that they made no difference in the event. The admitted offences alone established the appellant’s lack of fitness and propriety.
[14] See Section 42E of the District Court Act 1991
He submitted that in determining whether a person is fit and proper to hold a licence the Registrar could take into account any offending of any nature pursuant to s 5(12) of the Act. In particular however he referred to those offences of producing or cultivating cannabis prescribed by Regulations made pursuant to s 5(11) (ca) of the Act and to the fact that the appellant had been the subject of a Domestic Violence Restraining Order pursuant to s 5(11) (e) of the Act.
Counsel referred to the testimonials presented to the Committee and noted that only one of the authors had been aware of the appellant’s antecedents. Accordingly, he submitted little weight ought be given to them.
While counsel acknowledged that the appellant had not been convicted of any firearms offences, he submitted that the appellant had, in light of his antecedents displayed a disregard of the law.
He referred to the clear policy to guard against the risk of firearms being in possession of persons at risk of committing offences such as the cultivation of cannabis. He repeated that the principle which had been expressed in cases such as Johnson v Registrar of Firearms[15] had been recognised by Parliament in s 5(11) (ca) of the Act and Regulation 5A; and reflected public concern about the use or misuse of firearms by offenders protecting cannabis crops. Finally he submitted that when one looked objectively at the appellant’s criminal record, he was not, at the relevant time, a “fit and proper person” to hold a firearms licence.
[15] (2001) 79 SASR 353
Discussion
The question to be determined by the Registrar was whether the respondent was, in June 2009, presently fit and proper to be granted an appropriate firearms licence. That fitness had to be seen in the context of the Act. See A Solicitor v Law Society of New South Wales[16].
[16] (2004) 78 ALJR 310
There is no doubt that the Registrar’s lack of satisfaction as to the fitness of the appellant was based upon the antecedent report both as to previous criminal appearances, and the grant in 1992 of a restraining order. There is equally no doubt that the Committee had affirmed the decision because of those matters, and that in its view, insufficient time had passed since his last offence.
During the appeal, the principal question pressed by both counsel was whether sufficient time had elapsed between the appellant’s criminal antecedents and the determination by the Registrar on 9 June 2009.
Pursuant to ss 5(11) and (12) the expression “fit and proper” allows the widest scope for judgment. In particular it enabled and indeed in some respects, obliged the Registrar to have regard to the appellant’s criminal antecedents.
In a much cited passage of his Reasons in a different context in Sobey v Commercial and Private Agents Board[17] Walters J said:
Any member of the public engaging the services of ..... a person holding a licence ..... is entitled to expect that person to be of good standing in the community and to possess sufficient skills, experience and proficiency to enable him to discharge the functions which he is licensed to perform. Hence, it seems to me that the object of the legislation is twofold: first, to control, regulate and supervise the conduct of those who engage in the sort of work falling within the ambit of the Act, and secondly, to ensure that those to whom licences are granted are persons of probity who have the capacity to carry out the duties and responsibilities with which licences invest them ..... I cannot imagine anything which is more germane to the question whether a person is a fit and proper person than the matter of his record of previous offences. Any previous breaches of the law, and any propensity towards offending against the law must, in my view, be regarded as of crucial importance ..... [However] When a considerable period of time has elapsed from now, past facts might be viewed in the light of the lapse of time, and weight might then be properly given to his subsequent good behaviour.
[17] (1979) 22 SASR 70 at 74-75
In Petracaro v The Commissioner of Consumer Affairs[18], Olsson J affirmed the dicta of Perry J in Pav v Commercial and Private Agents Board, that a person’s record should not be held against him indefinitely. His Honour said further at page 391:
The only qualification which I would seek to make upon what is said in those authorities is that it must be remembered that the Act spans a very considerable number of types of licence which may be granted. Quite clearly the nature and seriousness of previous convictions will necessarily vary considerably in their importance, as well as the weighting which ought properly be attributed to them bearing in mind the significance which those convictions must necessarily have in relation to the type of work envisaged by the particular licensor”.
[18] (1994) 62 SASR 387
It is in that context that proper weight must be given to the appellant’s drug convictions in light of s 5(11) (ca) of the Act.
More recently in Police v Losapio[19] David J, when considering an appeal against the grant of a licence by a Magistrate in circumstances where there had been both drugs and firearm convictions, said:
It is true that the relevance of past offending may fade over time when considering this question. In this case, however, there was only a period of 7 months between the Deputy Registrar’s decision and the Magistrates hearing of the appeal in October of 2006. In my view this time was insufficient to substantially alter the conclusion in this matter. It follows that the Magistrate erred by giving too much weight to the passage of time in assessing the respondents fitness.
[19] (2007) SASC 112
I have some sympathy for the position of the delegate of the Registrar. He had been presented with the antecedent report shortly after it had been prepared by the Firearms Brach on 4 June 2009. He did not have any explanation as to the circumstances of the “Court appearances” nor as to why the restraining order had been imposed or revoked.
The various offences of possession and producing cannabis on a regular basis to July 2004 place the applicant into the class of offender identified specifically by Parliament in s 5(11) (ca) and Regulation 5A as a person who may not be fit and proper to be granted a firearms licence. His convictions for driving offences prima facie evidence a lack of respect for the law at the time they were committed.
It seems from its Reasons, that the Committee regarded even the historical criminal conduct, dating back “some 26 years”, as directly relevant to the question of fitness and propriety.
However it is not the mere fact of the number of convictions which is relevant, but whether they disclose that the appellant was not fit and proper as at 9 June 2009; having regard to the prescribed offences in Regulation 5A of the Firearms Regulations.
The question whether the “appearances” for offences which were dismissed or withdrawn ought to have been considered by the Registrar was referred to by the Supreme Court in Pav v Commercial & Private Agents Board, supra. Perry J had indicated that there may be occasions where the Delegate could properly have regard to such appearances, especially where the offences themselves were not in dispute; or as part of a plea bargain, other offences may have been withdrawn.
However in that case the Board had looked behind the mere “appearances” and had taken evidence from the applicant about the circumstances of the offending.
In the subject case, without explanation or further detail as to the offences “not proceeded with”, “withdrawn” or “dismissed” the Delegate ought to have ignored them, as counsel for the respondent has very properly conceded.
In my opinion it is an inevitable finding that both the Delegate and the Committee did take all of the appearances into account, when reaching their respective decisions. The Delegate had no explanation from the appellant at the time; and the Committee had referred in its Reasons to “continual persistent offending …. including dishonestly matters”.
Further, in my opinion, the Delegate ought to have provided the antecedent report to the appellant to enable him to provide an explanation as to the background of those offences to which he had pleaded guilty. In Pav’s case, Perry J said:
It seems to me that it is an elementary principle of fairness no less applicable to an administrative body such as the Board discharging the duties imposed upon it by the Act in considering an application of this kind than in other proceedings which might more closely approximate the judicial process that material adverse to the applicant should be disclosed to him and a reasonable opportunity given for appropriate explanations to be made.
In the subject case the appellant was not given the opportunity to give an explanation to the Delegate as to the “offences” in that report, nor as to the circumstances underpinning the restraining order. Had that opportunity been provided to the appellant, it is likely that the response would have placed the appellant’s conduct over the prior 10 year period in an entirely different light.
It was only after the decision to refuse was made that the appellant was given the opportunity to provide an explanation. That explanation both as to the events on 27 April 2007 and the circumstances of the restraining order was provided by letter from the appellant’s solicitors to the Committee dated 27 November 2009.

In my opinion both the Delegate and the Committee gave no weight to the circumstances of the grant of the restraining order, and its revocation.
The latter circumstances were significant. When seen in the context of the appellant remarrying in 2002, and having removed himself from his former domestic situation, it ought to have led to a finding that little or no weight be given to the grant of the restraining order, notwithstanding s 5(11) (e) of the Act.
The failure of the Registrar to seek comment from the appellant prior to making his decision was not cured by the Review of the Committee, because of its limited powers. When the irrelevant matters are excluded from consideration, and the appellant’s explanation as to the “fire event” in April 2007 is weighed into the balance, we are left with an appellant with a somewhat old antecedent history who over a 10 year period leading to 9 June 2009, had relevantly been convicted of two relatively minor drug offences in 2002 and 2004 for which he had been fined.
In determining whether the appropriate decision was to grant a firearms licence on 9 June 2009, the overriding consideration was that of ensuring the public safety. The fitness and propriety of the appellant had to be seen in this context and that of the Act and Regulations.
Conclusion
In my opinion the appellant was denied procedural fairness by the Delegate in failing to provide him with a copy of the antecedent report for comment, prior to determining the application.
I do not accept the submission that the irrelevant material did not influence the decision of the Registrar to refuse the application, nor that of the Committee to affirm the Registrar’s decision.
Accordingly the Delegate’s discretion to refuse the application miscarried, and the decision cannot stand.
Having regard to my conclusion, one of the alternatives open to me pursuant to s 42F of the District Court Act is to remit the matter to the Delegate for further consideration in light of the explanations of the appellant as to the matters contained in the antecedent report.
However having heard all of the submissions, and having regard to the view which I have formed on the question of whether the applicant is a fit and proper person under the Act, I propose to determine the matter rather than remit it for further hearing.[20]
[20] See Section 42F(b) of the District Court Act 1991, and Pav v Commercial and Private Agents Board, supra.
In my opinion such a course is particularly appropriate on the facts of this case, where the application had been commenced in 2007.
Ultimately the Firearms Review Committee had approached the question of fitness on the basis of whether sufficient time had elapsed since his offences so as to establish that he was fit and proper.
There is no doubt that the appellant’s old criminal history is poor and of some relevance to the question of his fitness and propriety in June 2009. None of those offences however involved violence, none involved the use or misuse of firearms. Although the offences of producing and possessing cannabis are significant matters, the fact remains that the last three such offences occurred 12 years, 7 years and 5 years respectively prior to the consideration by the Delegate. They all resulted in fines.
The explanation by the appellant as to the making of a restraining order in 1992 and it’s revocation in 2009 following his acquittal on serious charges, as I have found, ought to have led the Registrar to place little or no weight on that factor. Similarly little weight ought to have been given to the fire event in April 2007.
The consequences of these findings is that it had been some 5 years between the appellant having committed any relevant offences, and the consideration of the application by the Delegate in June 2009.
In my opinion the Committee’s determination that insufficient time had passed, was the consequence of a misunderstanding as to the appellant’s alleged persistent offending “including dishonesty offences”. Not only was such a finding factually in error, it appears that no weight was given to the appellant’s undoubted changes in life.
One might ask rhetorically if in the view of the Committee more time was required, how much more time is reasonable.
To paraphrase the dicta of David J. in The Police v Lopasio, supra, there had been significant changes in the appellant’s life and 5 years had elapsed since any relevant offending had occurred. There was, on 9 June 2009, no risk to public safety in granting a suitable licence for the purposes sought by the appellant.
I am satisfied in light of that 5 year period between the last cannabis offence in 2004 and the date of the consideration by the Delegate, that the appellant was in June 2009 and indeed thereafter a fit and proper person to be licensed for the appropriate class of licence under the Firearms Act 1977.
The Orders
Having reached that conclusion it is appropriate that I direct the Registrar that an appropriate licence ought issue to the appellant. The only matter argued before this Court was the question of the fitness and propriety of the appellant. No submissions were directed to the question of the appropriate licence or its conditions.
I note that pursuant to Division 4 of the Act, and Regulation 21 of the Firearm Regulations 2008, the type of licence and the conditions to be imposed must be fixed by the Registrar.
Having concluded that the appellant was in June 2009 and at all times thereafter a fit and proper person to be granted a firearms licence, in those circumstances, in my opinion, it is appropriate to order:
1.That the decision of the Delegate made on 9 June 2009 to refuse an application for a firearms licence be rescinded.
2.That in consequence of the finding that the appellant is and was at 9 June 2009 a fit and proper person to hold a licence, I direct the Registrar to issue an appropriate licence to him.
3.I remit to the Registrar the question of the appropriate class of licence and its conditions in accordance with the Act and Regulations.
While I will hear the parties as to the appropriate form of these orders and costs, I indicate that there was no conduct of either party which would warrant an order for costs pursuant to either s 42G or s 42H of the District Court Act 1991.