Masterson v Commissioner of Police

[2017] NSWCATAD 17

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Masterson v Commissioner of Police [2017] NSWCATAD 17
Hearing dates:	14 July 2016, 2 August 2016 and 23 September 2016
Date of orders:	11 January 2017
Decision date:	11 January 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Scahill, Senior Member
Decision:	The decision of the Respondent is affirmed
Catchwords:	Contravention of the Act; not in the public interest
Legislation Cited:	Administrative Decisions Review Act 1997 Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995 Firearms Act 1996 Firearms Regulation 2006 Weapons Prohibition Act 1998
Cases Cited:	Bazouni and Ors v Commissioner of Police [2002] NSWADT 100 Bottomley v Commissioner of Police [2005] NSWADT 211 Cleofe v Commissioner of Police, New South Wales Police Service; Alpha Intelligence Securities Pty Ltd v Commissioner of Police, New South Wales Police Service [2001] NSWADT 2 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) ALR 657 Cook v The Commissioner of Police [2003] NSWADT 30 Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 Director of Public Prosecutions v Smith (1991) 1 VR 63 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 England v Commissioner of Police, New South Wales Police [2006] NSWADT 95 Hardy v Commissioner of Police, NSW Police [2006] NSWADT 167 Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 Jacob v R [2014] NSWCCA65 Keane v Commissioner of Police, New South Wales Police [2008] NSWADT 68 Kocic v Commissioner of Police NSW Police Force [2014] NSWCA 368 Livadaru v Commissioner of Police [2008] NSWADT 160 Lynch v Commissioner of Police, New South Wales Police [2006] NSWADT 80 Lynch v Commissioner of Police, New South Wales Police Service (GD) [2006] NSWADTAP 43 Moors v Burke (1919) 26 CLR 265 Morris v The Commissioner of Police [2002] NSWADT 223. Osborne v Commissioner of Police, New South Wales Police Service (GD) [2000] NSWADTAP 10 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR. O'Sullivan v Farrar [1989] HCA 61; (1989) 168 CLR 210 Police v Toleafoa [1999] NSWADTAP 9 Qantas Airways Limited v Gama [2008] FCAFC 69 Slavicek v Commissioner of Police, New South Wales Police Service [2003] NSWADT 106 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 Whiteman v Commissioner, New South Wales Police Service [2002] NSW ADT 179
Category:	Principal judgment
Parties:	Tristan Masterson (Applicant) Commissioner of Police (Respondent)
Representation:	Counsel: M Ramage (Applicant)   Solicitors: Andrews Solicitors (Applicant) Bartier Perry (Respondent)
File Number(s):	1410713

Reasons for decision

1. Mr Tristan David Masterson has applied to the Tribunal for review of the Commissioner of Police’s decision on internal review to affirm the decision on 10 July 2014 to revoke Mr Masterson’s category AB firearms licence. Mr Masterson had obtained his category AB firearms licence on 12 December 2011 and it was due to expire on 3 February 2017. When Mr Masterson’s licence was revoked on 10 July 2014 he sought internal review of the decision and was advised on 18 November 2014 that the original decision to revoke his licence had been confirmed. On 16 December 2014 Mr Masterson lodged this application for review of the internal review decision in the Civil and Administrative Tribunal.

2. The Commissioner of Police had revoked Mr Masterson’s firearms licence on the grounds that he had contravened the Firearms Act 1996 and that it was not in the public interest for Mr Masterson to continue to hold a firearms licence.

Background facts

3. Mr Masterson obtained his category AB licence on 12 December 2011. On 4 July 2012, a search warrant was executed at Mr Masterson’s address. It is understood that this was because Mr Masterson was identified as having communicated online with Paul Francis. Mr Francis had been identified by New South Wales Police as being involved in the unlawful modification, manufacture and supply of firearms in Sydney. In 2011, investigators had commenced the lawful interception of Mr Francis’ telephone service. In 2012 investigators identified that Mr Francis was involved in an Australian shooting website and forum community, and that he was providing advice on the website to forum members about firearm repair, modification, assembly and other firearms related issues. He was also offering gun smithing services from his home. Mr Francis did not hold a firearm dealers licence and has been serving a prison sentence after convictions for offences.

4. After the search warrant was executed at Mr Masterson’s address on 4 July 2012, he was charged with:

• possess unregistered firearm – not prohibited firearm/pistol – T2 – s 36 Firearms Act 1996 (the receiver);

• possess or use a prohibited weapon without permit – T2- section 7 Weapons Prohibition Act 1998 (the magazine); and

• possess an unauthorised prohibited firearm – T2 s. & Firearms Act, 1996 (the Vektor Rifle).

5. On 14 November 2013, the Penrith Local Court dismissed the offence of “possess an unauthorised prohibited firearm –T2”. The charge had related to a Vektor rifle which the police had alleged had been fitted with a stock that was specially designed so as to be readily detachable; or to operate on a swivel, folding or telescopic basis – making it a prohibited firearm.

6. On 14 November 2013, the Penrith Local Court convicted Mr Masterson of the offences “possess or use a prohibited weapon without permit – T2” (the magazine) and “possess unregistered firearm – not prohibited firearm/pistol –T2.” (the receiver)

7. The Penrith Local Court placed Mr Masterson on good behaviour bonds for 12 months under section 9 of the Crimes (Sentencing Procedure) Act 1999. Mr Masterson lodged an all grounds appeal against these convictions.

8. On 26 June 2014, the Parramatta District Court quashed Mr Masterson’s convictions of “possess or use a prohibited weapon without permit – T2” (magazine) and “possess an unregistered firearm – T2. (receiver)”

9. The charge of “possess unregistered firearm” related to an item found during the search at Mr Masterson’s home in July 2012. The item was alleged to be a receiver which, as a firearm part, required to be both registered and stored as a firearm under the Firearms Act 1996. In quashing the previous conviction, the District Court judge described the alleged receiver as a lump of metal and not a firearm or firearm part.

10. The charge of “possess or use a prohibited weapon without permit,” related to an alleged Ruger magazine found at Mr Masterson’s home during the search in July 2012. The item before the District Court was two symmetrical plastic pieces. In quashing the previous conviction, the judge found that the item was broken pieces of plastic and not a prohibited weapon or part.

Grounds for revocation

11. Mr Masterson’s firearms licence was initially suspended on 26 July 2012 after the search. It was then revoked by the Commissioner on 10 July 2014 on the grounds that Mr Masterson had contravened firearms legislation (although he was not convicted) and that it was not in the public interest for Mr Masterson to have a firearms licence. The Commissioner has declined to reinstate Mr Masterson’s licence.

Relevant legislation

12. Section 24 of the Firearms Act 1996 provides for revocation of firearms licences.

13. Mr Masterson’s licence was revoked by the Commissioner on grounds of having contravened the Firearms Act 1996 – section 24 (2) (b) (ii) and because it was not in the public interest for Mr Masterson to hold a firearms licence under section 24 (2) (d) and clause 19 of the Firearms Regulation 2006.

Section 24 Revocation of licence

(2) A licence may be revoked:

(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or

(b) if the licensee:

(i) supplied information which was (to the licensee’s knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or

(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or

(iii) contravenes any condition of the licence, or

(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

(c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or

(d) for any other reason prescribed by the regulations.

Firearms Regulation 2006

Clause 19 Revocation of licence-additional reasons

The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

Tribunal’s Power to review the decision

14. The Tribunal has jurisdiction to review the Decision pursuant to section 75(1 (c) of the Firearms Act 1996 and section 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act).

15. In determining the application, the Tribunal must decide what is the correct and preferable decision having regard to the material before it. The material the Tribunal may consider includes material that now exists but which did not exist at the time of the Decision and material that was otherwise not considered by the relevant administrator. See Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

16. The Tribunal may affirm, vary, set aside and make a substitute decision or set aside the decision and remit it to the administrator.

17. In proceedings before the Tribunal under the ADR Act, there is no onus of proof. However, when there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be to the civil standard of proof, that is, on the balance of probabilities as set out in section 140 of the Evidence Act 1995 NSW which provides:

Section 140 Civil proceedings: standard of proof

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence, and

(b) the nature of the subject-matter of the proceeding, and

(c) the gravity of the matters alleged.

The Issues for the Tribunal

18. The issues for the Tribunal were:

1. Despite the quashing of Mr Masterson’s convictions for possess unregistered firearm (the “receiver”) and possess or use a prohibited weapon (the “magazine”) and the dismissal of the charge in relation to prohibited firearm (the Vektor rifle), should the Tribunal nonetheless find that he had contravened the Firearms Act 1996 and Regulations and the Weapons Prohibition Act 1998?

And

2. Is the Tribunal satisfied that it is not in the public interest for Mr Masterson to hold a firearms licence because of such issues and his relationship with Mr Francis and his expressed views about firearms regulation?

Documents before the Tribunal

19. The Tribunal had before it:

• Mr Masterson’s application for review in the Tribunal dated 16 December 2014;

• the Respondent’s section 58 documents;

• transcript of the search of Mr Masterson’s home in July 2012;

• a statement from Mr Masterson dated 26 February 2016;

• statements from Mr Barry Smith, Gunsmith and Firearms Dealer, dated 15 March 2013, 1 May 2013 and 1 June 2015;

• emails between the Firearms Registry and Mr Masterson from 15 May 2012 to 21 May 2012;

• A certificate dated 11 August 2012 and statements of Mr Steven Wilson, crime scene officer, dated 8 September 2015 and 6 July 2016;

• statement of Mr George Ekstein, the Applicant’s solicitor, dated 4 June 2015;

• statements of DSC Sean Ferris of 7 August 2012, 21 December 2012 10 September 2015;

• statement of Ms Leesa Livermore, Firearms Registry, dated 4 September 2015;

• outline of submissions from the Applicant; and

• outline of submissions from the Respondent

20. Mr Masterson objected to the contents of several the Respondent’s documents provided in the section 58 documents. These included, the reliance on Mr Masterson’s criminal history and material relating to Mr Francis - on the basis that it was hearsay. Further, the Applicant did not concede that there had been a lawful interception of communications between Mr Masterson and Mr Francis.

The Applicant’s case

21. Mr Masterson relied upon his own statement dated 26 February 2016 and that of Mr Barry Smith, Gunsmith and Firearms Dealer, dated 13 May 2013.

22. Mr Masterson and Mr Smith gave evidence and were cross examined.

Evidence of Mr Tristan Masterson

23. Mr Masterson had provided a statement dated 26 February 2016. He gave evidence and was cross examined before the Tribunal. The Tribunal summarises Mr Masterson’s evidence as follows.

24. Mr Masterson denied that he had contravened the Firearms Act 1996, nor had he engaged in any conduct that would warrant the revocation of his firearms licence. He had first applied for a firearms licence in 2008 and was approved by police. He did not take up the licence at that time as he was living in a shared house and was concerned about safe storage. He reapplied for his licence in 2011 and was again approved. Since taking up his licence, he had been a regular hunter on New South Wales’ public lands and a regular participant of SSAA shooting ranges.

25. Mr Masterson said that he is a sole trader. He had employed himself since the age of 16 or 17 doing various things like auto wrecking, auto repairs (mechanical and body), IT work (programming/development, marketing, penetration testing/consulting) and aircraft restoration. He did not have any criminal convictions as an adult. He had been to court a few times as a kid - living in DOCS housing. The last time he had been in any court prior to this application was when he was a 16-year-old. That was 17 years ago.

26. Mr Masterson relied on his acquittals in the Local Court and District Court as important matters for the Tribunal to consider. There were many other factors in support of his application. He referred to his “intemperate remarks” at the time of the police search of his house in July 2012. He said that he was fully aware of his obligations and duties as a licence holder and stated that he abides by the requirements. All his firearms and ammunition were stored correctly. He had demonstrated through his actions a thorough understanding of the laws and his obligations. Between July and December 2012 when he was arrested for the charges, he had cooperated fully with the police. He had been described as cooperative by the relevant police.

The charge of being in possession of an unregistered firearm – the receiver

27. Mr Masterson denied being in possession of a firearm receiver, not registering it and not storing it in his firearms safe. The metal item was not a receiver. He had ordered the piece of metal which had been alleged to have been a receiver, online. He may have bought it from “Tactical Machining”. There were hundreds of these things available. They are made in the USA and are not regarded as receivers there. He agreed that the piece of metal could be made into a receiver as it had a bolt handle and a bolt assembly. He was unsure what else was necessary to turn the piece into a receiver. However, it was lacking a barrel, could not load and certainly needed some work. He had spoken to the Firearms Registry about the issue and had some emails about it.

28. It could not have been used as a receiver and no reasonable gunsmith, manufacturer or dealer called it a receiver. They would not be able to sell it as one. For the item in question to be sold as a receiver, it would first need to be made into a receiver and registered with the firearm registry. He was collecting parts to have a firearm made by firearms dealer. He took no steps to turn the lump of metal into a receiver as it would have been in breach of section 50A of the Firearms Act 1996. The District Court decision confirmed that the item was not a receiver or a firearm part.

The charge of possess or use a prohibited weapon without permit– the “Ruger” magazine

29. Mr Masterson referred to the allegations that he had been in possession of a Ruger magazine with the capacity to carry more than 15 rounds, without a permit, without legitimate reason and with the intention of enabling an attempt to make a replica. When it was located by police it was not a magazine. It was not of Ruger manufacture. It was a broken case containing none of the internal parts necessary to function as a magazine. He had bought them at Penrith gun show in their separate state. He had not broken them apart and he had never intended to make the two pieces into a magazine.

30. He had not attempted to obtain the missing parts that would be needed to convert the two pieces of plastic into a magazine. In any event, full sized banana magazines can still be bought that are limited to 10 or 15 rounds. This type of magazine, when completely functional, is designed for a myriad of firearms including legal lever action, pump action, straight pull, bolt action firearms. It was not correct to say that the magazine is suited only to illegal firearms.

31. Mr Masterson denied that he wanted to make a replica of the magazine. He had used a broken case as a guide to design a stronger case. Mr Masterson asserted that he is permitted to hold any item classed in the AB category. All parts that he held were in the AB category. It was established in the District Court that the pieces were not a weapon and not a prohibited weapon.

32. The video of the search showed that the police had found the items as two broken plastic parts. In the time between Mr Masterson being charged and appearing in court, the defence witness, Mr Barry Smith had inspected the item and noted that it was a magazine in two parts.

33. In subsequent court proceedings at the Penrith Local Court, the magazine was presented to the court, but it had been glued together. It was again presented glued together in the District Court appeal. Detective Ferris had pulled it apart during the District Court appeal hearing. He had shown that there were large amounts of glue in the plastic parts.

34. Mr Masterson also relied on the evidence of Mr Wilson, called by the Prosecution before the District Court, concerning the alleged magazine. Mr Wilson had confirmed that even if the two pieces were stuck together, they would not function as a magazine, as they needed further parts.

The Vektor Rifle stock

35. He had obtained the Vektor rifle in May 2012 from John Graham. It had a thumb hole stock when he acquired it. The firearm was now different to how it came out of the factory. He had added the stock. He put a new grip on it. He agreed that he had fitted a bolt which did not have a nut on it. He told the Tribunal it might have fallen off when they picked it up during execution of the search warrant. However, the receiver has a thread in it, holding in the bolt. He had only modified the accessories of the firearm and he had not modified the action.

36. He had not breached legislation. Mr Masterson said that he had made the modifications to the stock so that it was virtually impossible to move it. When the firearm had been brought to the Local Court it may have become a prohibited firearm because the stock could now be moved - the packing he had put in it to stop it moving, had been removed.

37. Mr Masterson denied that the stock on his rifle was illegal or that he fitted it himself. The bolt had been factory fitted. To undo the bolt on the Vektor, it was necessary to put the rifle in a vice. He had not taken the bolt out. He had not seen Detective Sergeant Iverach loosening the bolt on the stock at his house. He had seen Detective Ferris tugging on the stock. He said that the rifle contained a telescopic/collapsible stock. The mobility allowed adjustment so that there was an arm’s length. The telescopic action moves in an out on concentric rings and in any event, it was well above the minimum length for a shortened firearm. The stock was not illegal.

35. Mr Masterson alleged that the firearm stock on the Vektor rifle had been tampered with by Mr Wilson, the prosecution witness, so that the stock could be moved. Previously, the pin in the stock could not move without a multi-grip tool. Mr Barry Smith, the Defence witness, had noted that the stock of the firearm could not be adjusted without a tool. Mr Masterson denied that Paul Francis had adjusted the stock for him. He said that the stock of the Vektor rifle did not meet the definition set out under the Firearms Act 1996 of being designed to be readily detachable or to operate on a swivel, folding or telescopic basis.

The new grip on the Vektor Rifle

39. He had fitted his own pistol grip to the Vektor Rifle - but this was not illegal. Fitting a pistol grip to the Vektor did not convert it into an illegal firearm. There is nothing in the Firearms Act 1996 which says that a normal licence holder cannot make legally make category AB parts for their own firearms, for their own consumption.

The 3-D printer

40. Mr Masterson said that there was no specific prohibition in the Firearms Act 1996 to prevent a normal licence holder from owning a 3-D printer. Mr Masterson denied that he had used the 3-D printer to make any firearm parts such as a pistol grip or magazines. The 3-D printer was not capable of making anything functional. It could only make a model.

41. He had not intended to make a pistol grip with the 3-D printer. One came in the mail. He denied telling the police he tried to make a magazine. He had made a 70% size model of the magazine. He had tried to design a prototype which he could then have made up in a shop. A large firearms company would use a prototype of the magazine to demonstrate the magazine.

Paul Francis

42. Mr Masterson stated that Paul Francis had initiated contact with him on a shooting website, after Mr Masterson had posted a message on the site, asking for advice on magazines which were breaking and jamming. Mr Francis had been a long time and highly respected member of the shooting website. He agreed that he had had lengthy discussions with Mr Francis about their opposition to the regulation of firearms and the overregulation. He had gone to Mr Francis’ home. He had taken a cracked air rifle to him. He held the rifle while Mr Francis squinted into it. He said that the firearm had never left his control. Mr Francis had offered to build a stock and things like that for him.

43. He had not asked Mr Francis whether he was licensed. He was on the website. He had no reason to suspect that Mr Francis was doing anything unlawful. He thought it was ridiculous to have expected him to ask Mr Francis if he were licensed. Mr Masterson said that he was given no cause to doubt anything Mr Francis told him. Mr Masterson said that Mr Francis told him that his licence had been suspended because police had come to his house and found an unlicensed BB gun. None of the charges with which Mr Francis was convicted, related to Mr Masterson. Mr Francis had not done any work on his firearms.

44. Mr Masterson stated that when his property was returned to him in October/November 2012 by the Police, it was damaged significantly. He immediately complained about it.

45. Mr Masterson stated that he was of good character. He is a fit and proper person to be the holder of a firearms licence. He is conscious of the grave responsibilities that are imposed on such a licence holder and he has at all times discharged those responsibilities and will continue to.

46. There have been no issues raised about firearms being stored at his home until after he had won the District Court Appeal. He thought that there had been vindictiveness by the police as a result, because restrictions had been put on his partner’s possession of firearms.

Evidence under cross examination

47. Under cross examination, Mr Masterson said he understood firearms rules and regulations, “sort of, not really”. This was because the rules were constantly changing - there are been a new government. He then stated that it was not so much the government, but the police who changed the rules in the seven months that he had held a firearms licence. He had said he didn’t believe in licensing and he did not agree with overregulation. He had spoken to Paul Francis at length about licensing. It was not just him who held this view, but others as well. He’d spoken to Mr Francis both online and off-line, face-to-face and over the telephone. Once a person is licensed, he did not think it should be necessary to have a permit for every subsequent firearm obtained. He believes that shooting and hunting is a right. However just because he doesn’t believe in these matters, it does not mean he will not obey the rules and regulations. He saw the regulatory system as a detriment and that it was there to regulate legitimate people. He does obey it - but he thinks it goes too far. He told the Tribunal “I think the whole licensing system is ridiculous. Everyone should have a right to a gun.”

48. Mr Masterson considered he was permitted to make a magazine and a pistol grip – but not a receiver - because this would be treated as a firearm.

49. Mr Masterson understood that his category AB licence enables him to repair his firearm and to take it to a shop for repairs. The contents of section 8 (1) of the Firearms Act 1996 were brought to his attention. They include that

“the licensee is authorised to possess or use a registered firearm of the kind to which the licence applies, but only for the purpose established by the licensee as being the genuine reason for possessing or using the firearm.”

50. In response, Mr Masterson stated:

“I can’t be expected to know every single point of the legislation. “

Evidence of Mr Barry Smith

51. Mr Smith is a firearms dealer. In his resume attached to a report of 1 June 2015, Mr Smith states he has specialised knowledge about firearms, and gun smithing and related subjects having been successfully self-employed and working in this industry as a gunsmith, salesmen, valuer and professional shooter for over 40 years. During that time, he became the warranty gunsmith to most of the major firearms manufacturers or the distributors as well is doing gun smithing. Amongst other matters he stated “I have been a member of every NSW government firearms consultative committee (both Liberal and Labor) for more than 20 years and have helped to develop firearms legislation in New South Wales during that time.”

52. Mr Smith had provided statements dated 15 March 2013, 13 May 2013 and 1 June 2015. Mr Smith had also provided evidence to the Local Court for the defence.

The Magazine

53. Mr Smith had seen the two items which could have made a magazine at St Mary’s police station in May 2013. When he later saw them in court, they had been put back together with what appeared to be whitish glue. The two items could not make a magazine as there was a spring missing and part of the housing was broken. Locators were necessary to keep the parts together. You could not just clip the two items together without gluing them as well. A carry plate and spring would need to be added to the pieces for them to then function as a magazine.

The Receiver

54. A receiver was not defined under the Firearms Act 1996. The metal item he had seen had various holes drilled in it, to which a trigger could be attached. To become a receiver, it must be able to receive a barrel. There would need to be another hole drilled into the piece for a clamp to hold the barrel. It could not be used until it had been fitted. You would have to have a very good home workshop to make the modifications necessary to the piece of metal, to turn it into a receiver. This was a partially constructed receiver and it could not function. It is only necessary to register the piece when it becomes a firearm receiver.

The Vektor Rifle

Pistol grip

55. He said that the pistol grip fitted to the Vektor rifle did not constitute a modification under the Firearms Act 1996.

The Vektor Rifle

The Stock

56. He was shown a photo of the Vektor rifle and said that it did not contravene the Firearms Act 1996. It was a common conversion. It is not an offence to have an adjustable stock. There are many rifle stocks which are adjustable both for short and tall people. When he saw it, it was not a collapsible stock. If it had been possible to collapse it beyond minimum length, it might then have been an unlawful firearm. He had tried to move the stock backwards and forwards at the police station, but there was a lever missing and the pin was jammed. It was usual for the stock of a rifle to be moved in six stages.

The Vektor Rifle

The Bolt

57. He was asked about the screw or bolt attaching the stock to the rifle. His understanding was that if you require a tool to remove it, it is regarded as fixed and by implication not readily detachable as set out in clause 11 of Schedule 1 of the Firearms Act 1996.

Possession

58. Mr Smith was asked about what constituted possession of a firearm, given the allegations Mr Masterson had given possession of his firearm to Mr Francis who was unlicensed. It was expected that a licensed person would maintain their firearms. As long as the person was not giving possession to another person on a walk away basis - it was permissible to have another person fix the firearm.

59. Mr Smith knew of no prohibition on making 3D copies.

The Applicant’s submissions

60. The Applicant provided written submissions. They are summarised as follows.

The “Receiver”

61. The District Court had found that the particular item was not a receiver. Although that decision was not binding, it is persuasive and should not be contradicted without strong and good reason being shown.

62. A Receiver is not defined under the Firearms Act 1996. Clearly the metal object made by Tactical Machining was not a receiver in the form in which it was found.

63. The Tribunal should accept the evidence of Mr Smith. The item could not function as a receiver unless some major work was done. It required at least the drilling of a hole for a barrel and other machining - no barrel was located.

64. The fact that fine machine work would have to be done, involving the drilling of holes and drilling and fitting a barrel, underlines that at the stage it was found, it could not function as a receiver. Nor was it, in that condition, reasonably capable of forming part of a firearm.

65. Mr Smith’s evidence was that the item only had to be registered when it reaches the point of being a firearm part. It does not have to be registered until it has been drilled at least to accept a barrel. There is no specific requirement for Mr Masterson to store it in his firearms safe.

66. Section 93 which requires that firearm frames and receivers be registered as any other firearm – but not if they form part of a firearm which is registered, makes it plain that a receiver is not a firearm.

The "Magazine"

67. The issue was whether the 2 broken pieces of plastic, lacking both base plate and springs, was a magazine. It was not challenged that the plastic said to constitute "the magazine" was, when located by the police, in 2 separate pieces as shown in the search warrant video.

68. It was determined by Delaney DCJ, in the District Court that that the item was not proved to be a prohibited weapon under the Weapons Prohibition Act 1998

69. It was not challenged that when presented in the Local Court, someone had glued the two parts together, and that it came apart in Court.

70. Although the 2 broken bits of plastic may well have been a part of a magazine at some stage, there is no evidence that the two pieces of plastic had ever been one unit, or that as a unit it had held the appropriate missing parts to constitute and function as a magazine. Section 4(2) of the Act consequently did not apply.

71. The Applicant gave evidence that the missing parts are not sold separately and could not be obtained. This evidence was not challenged. Nor was there any challenge to his evidence that he made no endeavour to attempt to obtain the missing parts. There is no evidence that the Applicant took apart the item.

72. The Tribunal should accept the sworn expert evidence of Barry Smith that someone had tried to put the parts together. When he first saw the items at St Mary's police Station they were in 2 pieces. Someone had tried to make them 1 item. He was clear in his expert's statement that it did not constitute a magazine. Mr Smith also referred in addition in his evidence before the Tribunal to other matters - to the housing being broken and the item was missing a stud arrangement through the top, which is designed to hold a "magazine" in the firearm. He said further that one could not tell its capacity now just by looking at it.

73. Mr Wilson, the prosecution’s witness, agreed that to be capable of being used even if it was (successfully) glued together "you would need the inner parts. You would need the parts that were missing".

The 3-D Printer and manufacturing firearm parts

74. The Respondent alleged that the Applicant intended to or tried to manufacture firearm parts. However, there is nothing in the Act that prevents a licensee from experimenting to see if a 3-D printer could produce some type of model. The Applicant stated that the printer was not capable of making anything functional. It is not an offence under the Act to have a child's 3-D printer. Clearly that could not come within the definition of manufacture; nor could it be said that in having a pistol grip installed, that was an action which was done to convert his firearm. Nothing under the Act expressly prohibits modification.

75. There is no evidence that the Applicant had the 2 pieces with the intention of restoring it so that it could be used as a magazine. The evidence was that he thought that he might be able to copy it to make a legitimate 15 shot magazine. There was no talk of producing a replica. The Applicant explained that he used it as a guide to attempt to design a stronger case for his own magazine. There is nothing in the Act or Regulations which forbids a person from attempting to produce something made from plastic, which does not and cannot function as a firearm.

Paul Francis

76. It is not an offence for the Applicant to have had contact with Paul Francis.

77. There is no suggestion that the Applicant had any contact with Mr Francis as soon as he was advised by police that he should not. It is not an offence under the Act to seek assistance and advice from anyone. The Applicant was not charged with any offences which related to Mr Francis. Senior Constable Ferris agreed under cross examination that there was no evidence that Mr Francis had modified the Applicant's firearms.

78. The Applicant said that Mr Francis had done some repairs to the stock of an air rifle in his presence. The item did not pass out of his possession. He did not contravene the Act by giving possession to Mr Francis at any stage. The Applicant in so doing did not surrender possession. The Court should accept the expert evidence of Barry Smith, unchallenged, that in practice under the Act, possession means giving up the firearm on a walk away basis.

79. Possession requires both actual physical possession and the intention to exercise exclusive control over the property against all others see Moors v Burke (1919) 26 CLR 265 at 274. Clearly that did not apply to Francis.

The pistol grip

80. The Applicant fitted the pistol grip to his firearm. There is no evidence to the contrary. Senior Constable Ferris accepted that the Applicant was entitled to modify his rifle and put on a pistol grip.

The Vektor Rifle

81. The issue is whether "modifications" made the Vektor rifle a prohibited firearm. The issue is whether the stock was under Schedule 1 "specially designed so as to be readily detachable, or to operate on a swivel, folding or telescopic basis.”

82. It is apparent that readily detachable is disjunctive from the last 3 categories. The Applicant submitted that neither description applied. Telescopic is not defined under the Act, but a dictionary definition of the ordinary meaning of the words indicated it was not telescopic. Nor was the stock readily detachable.

83. When Mr Wilson gave evidence before Magistrate Pinch, he said (at 29) that the screw in the gun did not make it readily detachable. It did make it more easily detachable.

84. The Tribunal should accept the expert evidence of Mr Smith that the stock was normal. Many stocks are attached with a single screw; many stocks are made to be adjustable to fit the size etc of the user. Replacing stocks is quite normal. Further, if you require a tool to remove it, it is regarded as a permanent fixture. The pin was a common conversion to stop it being a collapsible stock; the stock was neither a collapsible, nor a telescopic stock.

85. Mr Smith was unable to move the stock back and forwards when he was at St Mary's police station. The lever was missing and he was unable to do so - although he tried in the presence of Detective Senior Constable Ferris. Under cross examination, Mr Smith repeated that he was unable to move the stock backward and forwards. He repeated that he was unable to undo the bolt with his fingers.

86. The evidence of the Applicant in his statement, unchallenged, was that he took action deliberately designed to make it not telescoping. Although it could not be adjusted without the use of a tool, Mr Masterson never intended to use it until he had placed a permanent rivet in the stock and tube.

Public Interest

87. It cannot be correct that the nature of the public interest ground is to give an unfettered discretion to refuse a licence under the Act. This would effectively render the Tribunal nugatory. The public interest is a very important consideration, but mere assertion by the Commissioner that it would be against the public interest, does not conclude the matter. No substantive matters are pointed to now, more than 4 years later as to why it would not be in the public interest.

88. The Applicant accepts that public safety is to be given paramount consideration and that possession of a firearms licence is a privilege. There is no evidence to suggest that if his licences are returned, the Applicant will pose a threat to public safety.

89. The Respondent had not taken into account that prior to July 2012, the Applicant has held several firearms permits/licences for firearms registered in his own name. He has never been convicted of a criminal offence (including the firearm matters the subject of these proceedings). He is a person of good character.

90. It is not suggested that the items or any other items referred to here had ever been used or were intended to be used in the commission of a criminal offence.

Further matters

91. Language by the Applicant showing dislike and irritation at what some might see as overly technical restrictions, is not inconsistent with being obedient to the law. It is not the type of conduct that this Tribunal should be concerned with. Although Mr Masterson said that he "sort of but not exactly" understood his obligations", he explained that the laws were constantly changing - he pointed out (contrary to the Respondent's assertion) that many changes are made by regulation. He very honestly said that he was a member of the Shooter's Party He didn't believe in gun ownership being a privilege, he said "Just because I don't believe it, doesn't mean I don't obey it. I do obey it - but I believe it goes too far."

92. The Applicant may not have been able to recite all parts of obligations under the Act - but that is more a test of memory, which most would fail.

93. The Applicant in evidence before the Tribunal said that he believed he was entitled to fit a pistol grip. This is not unlawful according to Mr Smith. The Applicant didn't believe he was entitled to build a receiver. He explained why he knew he could not. He purchased it to have a licensed firearms dealer turn it into a receiver.

94. Mr Smith considered that the way Mr Masterson had the stock with the pin packed and fixed in place, did not make it a prohibited firearm.

91. It is significant that many of the matters now relied on to justify deprivation of the Applicant's licences, weren't even a part of the original statement by Senior Constable Ferris. This includes the pistol grip and the telescopic stock. It is odd that the police only moved against the Applicant’s licence after he had been acquitted of all charges.

92. The Applicant shared premises with his partner who was in possession of registered firearms, but no proceedings were brought against her until after the proceedings against him had been dismissed by the Courts. On 11 November 2014, the Police for the first time imposed special conditions on her licences. These were lifted after internal review.

93. It is incorrect factually, to assert that the Applicant had a held a firearm's licence for a very short time and that he engaged in conduct inconsistent with the behaviour expected of him. The evidence does not support the assertions. There is no evidence that he continues to associate with any unlicensed person in gaol. It is submitted that none of the matters if established (which is contested) provide a basis for refusal of the return of his licences. Most of the assertions are not based on the evidence. There is no evidence of modifications; no evidence of providing Francis with the Vektor rifle; no evidence of him engaging Francis to make modifications to the Vektor rifle; no evidence that Francis ever had possession of the Vektor rifle.

94. The Applicant relies on the construction of Weapons Prohibition Act S 4 (2) set out in the judgment of RS Hulme AJ in Jacob v R [2014] NSWCCA65 at l42, 146 and 149.

142. The fact that the parts could have been fitted together and then could have formed a crossbow is nothing to the point. The parts were not a crossbow when the Appellant had possession of them. To quote an example given during the course of argument, a box of parts bought from Ikea and which, when assembled, form a bookcase is not a bookcase until the assembly occurs.

146.Furthermore if everything that was part of a prohibited weapon was, by virtue of s.4(2)(a) to be taken to be prohibited weapon, then s.4(2)(c) would be unnecessary. Each of the two or more persons who was carrying or in possession of a part of the weapon would, by virtue of s.4(2)(a) be taken to be carrying or have possession of the weapon.

147……To illustrate, albeit by an article that is dealt with in the Firearms Act 1996 rather than the Weapons Prohibition Act 1998 (and ignoring the specific provisions of the Firearms Act 1996 dealing with parts), a rifle would still be a firearm even if the bolt or firing pin or both were missing but those items would not themselves be firearms in circumstances where all the remaining parts, barrel, stock, magazine, trigger mechanism etc were missing. In the case of a crossbow, the fact of, say, a missing string, would not prevent the balance of the item being a crossbow, but the absence of a bow or stock would do so.

An alternate view is to require that the component under consideration have been at one stage part of a (complete) prohibited weapon, from which other part(s) have been detached and therefore can be regarded as missing. Such an approach would solve the difficulties attendant upon the examples of elasticised bands, staffs, handles sticks and bars referred to above.

149. However, there was no evidence that the unassembled items purchased on 30 December 2010 had ever been put together so as to constitute a cross-bow so, whichever of the interpretations just expressed be adopted those unassembled items, either in totality or individually, did not constitute a crossbow and the Appellant's conviction on the first count was wrong and must be set aside.

99. The Tribunal understands that the Applicant relies upon Jacob v R as support for the contention that even if parts might be assembled to form part of a firearm – this does not render the parts to be firearms themselves.

The Respondent’s case

100. The Respondent relied upon evidence from Detective Senior Constable Sean Ferris who had been present at the initial search of Mr Masterson’s home in July 2012 and Mr Steven Wilson, ballistics expert, who had examined the confiscated items.

Evidence of Detective Senior Constable Sean Ferris

101. Detective Senior Constable Sean Ferris had made statements dated

• 7 August 2012 in relation to the execution of the search warrant at Mr Masterson’s home.

• 21 December 2012 relating to the arrest and charging of Mr Masterson; and

• 10 September 2015.

102. In his evidence to the Tribunal, DSC Ferris said he was not a firearms expert. At the time of the search, he was assigned to the Middle Eastern Organised Crime Squad – focussed on drugs and firearms offences. He was not in the room when the two plastic pieces (the “magazine”) were found in the search. He had not glued together the two pieces that could be fashioned into a “magazine”.

103. He did not refer in his first statement to the ability to remove the pin from the Vektor rifle as it hadn’t been a relevant matter in relation to execution of the search warrant. He had not seen the pin removed from the Vektor rifle. He had seen Detective Sgt Iverach move the pin with his finger and thumb and the stock moved on the Vektor rifle.

104. He agreed that changing a pistol grip was not unlawful under the Firearms Act 1996.

105. He had questioned Mr Masterson about the 3-D printer, but he did not recall Mr Masterson referring to the fact that he’d been able to make a 70% model.

Evidence of Mr Steven Wilson

106. Mr Wilson is employed by the New South Wales Police Force as a crime scene officer, attached to the forensic ballistics investigation section, weapons identification and tracing unit in the forensic services group. He has been in this role since 2010. He is a forensic ballistics investigator, involved in the examination, identification and testing of ammunition components, firearms and prohibited weapons. His duties include the examination of crime scenes involving firearms and ammunition components and the collection, preservation and examination of exhibits. He was previously a sworn police officer with the New South Wales Police for 18 years.

107. Mr Wilson had given evidence for the prosecution in the Local Court proceedings against Mr Masterson. Mr Wilson had 3 documents before the Tribunal. The first was a certificate dated 11 August 2012, completed by Mr Wilson as a Crime Scene Officer in the Forensic Ballistics Investigation Section. This occurred when Mr Wilson had examined the materials taken from Mr Masterson’s home after execution of the search warrant. The second was a statement dated 8 September 2015 and the third, a statement dated July 2016, was largely a response to Mr Masterson’s statement of 29 February 2016. Mr Wilson said he saw his role as assisting the Tribunal. He did not consider his second statement, dated July 2016, was meant to be an expert statement. It was to assist the Tribunal in interpreting Mr Masterson’s evidence.

The Receiver

108. Mr Wilson said that said that to make “the receiver” suitable for use in a firearm, it needed a trigger assembly and some pins. He maintained that even so, it fits the definition of a receiver, although there is no definition of a receiver in the Firearms Act 1996. He said that the drill holes in this particular receiver would not have been there on purchase. They would have been made later.

The Magazine

109. Mr Wilson’s certificate dated 11 August 2012 made after examination of the items, did not refer to the magazine as having been in two parts. He said he would have recorded it in his certificate, if it had been in two parts when provided to him. He said that quite possibly his opinion about whether it was a magazine, might differ if he had seen it in two pieces. The magazine as presented could not function as a magazine.

110. He asserted that were the two pieces of the magazine glued together and provided with the missing parts, such as the lifter and the spring, then he would consider it a magazine.

The Vektor Rifle

111. He said that the Vektor rifle was a prohibited weapon because its original stock had been removed and a telescopic stock attached. There was no definition of the word telescopic in the Firearms Act 1996. However, it was telescopic because it could move backward and forward. He had released the pin to allow him to move the stock back and forward slightly. He did not remove the bolt. The bolt is a non-standard bolt. This was not recorded in his certificate. Nor had he been asked about this in the Local Court proceedings. He was not saying that the stock was readily detachable, rather he was saying that it was more easily detachable because of the bolt. There was no reference to the stock in his certificate. He could not remember seeing any packing around the bolt when he used multi-grips to remove it.

Emails, “Tristan” to Ms Coleman

112. The Respondent put before the Tribunal an exchange of emails between Mr Masterson and Ms Coleman, Co-ordinator Imports, in May 2012. The content of the emails consisted of Mr Masterson, who identified himself as Tristan, making enquiries as to the lawfulness of proposed purchases. The tenor of Ms Coleman’s responses is encouragement to Mr Masterson not to attempt to assemble a firearm himself, but rather to put it in the hands of a licensed dealer.

Respondent’s submissions

113. The Applicant's category AB firearms licence placed limits on what the Applicant could lawfully do as a licence holder. The conduct relied on by the Respondent to support the revocation decision, includes:

• The Applicant's lack of knowledge of his obligations as a licence holder and that he "don't believe in licensing and all that crap";

• The Applicant acquiring and having in his possession an item from Tactical Machining, namely a firearm receiver (Receiver).

• Further, the Applicant acquiring, having in his possession, and not registering, the Receiver in breach of s36(1) of the Act by virtue of s93 of the Act;

• The Applicant not storing the Receiver in his firearms safe;

• The Applicant purchasing a Ruger magazine (in respect of which it had a capacity to carry more than 15 rounds) when he held no permit for such a magazine (and being in breach of s23(1) of the Weapons Prohibition Act 1998).

• Further, the Applicant having in his possession that Ruger magazine (in respect of which it had a capacity to carry more than 15 rounds) when he did not have any legitimate reason to have that magazine in his possession.

• Mr Paul Francis, who did not hold a firearms licence, modified firearms and committed various firearm related offences for which he is now serving time in gaol. The Applicant's own association with Mr Francis, and his beliefs, is incompatible with the privilege of a firearms licence.

• Further, the Applicant having that magazine to enable him to attempt to make a replica of it (contrary to his authority and licence as a category AB licence holder).

• Further, the Applicant by having that magazine, had a prohibited weapon (see clause 4(4)(a) of schedule 1 to the WP Act) in his possession without a permit in breach of s7(1) of the WP Act;

• The Applicant having a 3D printer with the intention to, and using it to, make firearm parts, such as a pistol grip and magazines (including because he couldn't get those items "through customs"). Further, such actions are contrary to his authority and licence as a category AB licence holder;

• The Applicant associating with Mr Paul Francis (who did not have a firearm licence or permit at all), having dealings with him in relation to firearms, firearm repairs and modifications;

• The Applicant providing to Mr Francis, a Vektor H5 .223 calibre rifle with serial number 10473 (Vektor Rifle). Further, such action in providing the Vektor Rifle to Mr Francis was in contravention of the Applicant's personal obligations and in breach of:

1. s7A (1) of the Act by virtue of s7A(2)(b) and s19(2)(b) of the Act; and

2. s39(1)(c) of the Act;

• The Applicant engaging Mr Francis (who did not have a licence or permit), to make modifications to the Vektor Rifle. Further, the modifications made at the Applicant's instigation made the Vektor Rifle a prohibited firearm (see item 11 of schedule 1 to the Act);

• The Applicant taking possession of the Vektor Rifle from Mr Francis, so modified. Further, such action was a contravention of s7(1) of the Act.

114. The above conduct, whether in contravention of the Act or not, is inconsistent with the privilege of a firearms licence and cause for public concern.

115. A firearms licence is a privilege and not a right: see, for example, Cleofe v Commissioner of Police, NSW Police Service; Alpha Intelligence Securities Pty Ltd v Commissioner of Police, NSW Police Service [2001] NSWADT 2, Bottomley v Commissioner of Police [2005] NSWADT 211 (Bottomley) and Keane v Commissioner of Police, New South Wales Police [2008] NSWADT 68 (Keane). Licence holders are expected to not only comprehend and understand their obligations but also to comply with their obligations: Bottomley.

116. The outcome of the criminal proceedings is of little moment. What matters is the Applicant's conduct, as established in these proceedings, and what that conduct demonstrates about whether it is in the public interest that he holds a firearms licence.

117. The standard of proof is the civil standard based on the balance of probabilities. That remains the same even if the conduct in question may be criminal: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR. There is no third or higher standard of proof: Qantas Airways Limited v Gama [2008] FCAFC 69.

118. In the decision of Hardy v Commissioner of Police, NSW Police [2006] NSWADT 167 Member Higgins stated:

...It is well established that proceedings such as these are non-adversarial in nature and that there is no onus of proof in the sense that it applies to other legal proceedings.

119. The Applicant was charged with three firearms offences relating to the above matters. After an appeal to the District Court, the Applicant had been acquitted of all charges.

Impact of criminal proceedings

120. The fact that an Applicant is not charged, is acquitted of criminal charges or obtains the benefit of a section 10 order (or equivalent) has no impact on the determination of the issues before a Tribunal. The focus of the Tribunal is on a licensing decision and looking at the Applicant's conduct and its impact on his licence. No issue estoppel arises. In Bazouni and Ors v Commissioner of Police [2002] NSWADT 100 at [21], the Tribunal said:

A conviction in itself will not ordinarily be enough for the Tribunal to make an adverse finding on fitness and propriety... It is the person's conduct, not the fact of a conviction, which is to be considered.

121. 25.   In Lynch v Commissioner of Police, New South Wales Police Service (GD) [2006] NSWADTAP 43 the Appeal Panel said at [47-48]:

In this instance the contraventions were numerous and very serious. That Mr Lynch escaped a criminal conviction does not mean that he should therefore automatically escape an administrative sanction against his licence. It is necessary for an administrator to take a stand in dealing with serious contraventions that is seen as credible by the broader community, and sends the appropriate signal to licence-holders as to what is unacceptable. The administrator and the Tribunal cannot take an approach, as seems to have been urged on behalf of Mr Lynch in this case, that ignores the systemic implications of its decisions.

In our view, the contraventions that occurred in this case were serious enough, giving due weight to Mr Lynch's history and the explanations given for his conduct, to make the Commissioner's and Tribunal's decisions the correct and preferable ones in exercise of the discretion given by section 24 (2)(b)(ii). Similarly, the separate 'public interest' basis for the decision was available in the circumstances. There were aspects of his conduct and explanations, which gave rise properly, we think, to the concerns expressed about his misunderstanding of current policy in relation to the personal possession of firearms.

122. Criminal proceedings involve a different issue, namely whether the Crown proved beyond reasonable doubt all the ingredients of the offences. That is completely different to the issues before the Tribunal, applying the civil standard of proof, to a licensing issue.

123. The findings of the District Court (as to the Receiver and Magazine offences) were limited:

• the Magistrate in the Local Court did not give reasons for preferring the evidence of Mr Wilson over Mr Smith (page 4 of the decision, lines 23-26);

• the offence in respect of the receiver was "not proved... beyond reasonable doubt' (page 8, lines 3 to 4); and

• the offence in respect of the Magazine "was not proved by the Crown beyond reasonable doubt (page 7 of the decision, line 4).

As the High Court said in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7 at [33] (albeit in a different context) "it is not offensive to principle that an administrative body is empowered to determine whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action". Also, see, relevantly, [48] and [49] of the High Court decision:

124. That is, the Commissioner and this Tribunal can determine itself, on the balance of probabilities, that the conduct of the Applicant was in contravention of various provisions of the Act and WP Act (including subsequent to acquittal of criminal charges), and conduct of a nature that justifies revocation of the Applicant's

125. The underlying principles of the Act and WP Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms and weapons are imposed in the interests of public safety: Keane at [44].

126. The licensing regime under the Act is strict and ought to be interpreted in that fashion: England v Commissioner of Police, New South Wales Police [2006] NSWADT 95 (England) at [39]; also, see Osborne v Commissioner of Police, New South Wales Police Service (GD) [2000] NSWADTAP 10 at [45].

The need for licence holders to understand and comply with obligations

127. 37.   In Bottomley at [20] the Tribunal said:

Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them.

Strict controls on the issue and maintenance of firearms licences and permits

128. Consistent with a firearms licence being a privilege, the Act also places strict restrictions on the maintenance of licences and permits.

Conditions imposed on licences

129. Consistent with the Act imposing strict controls on the issue and maintenance of licences and permits, licences may be issued subject to such conditions as the Respondent thinks fit to impose: see s19(1) of the Act.

130. Licences are also issued with standard conditions prescribed by s19(2) of the Act, including that the licensee must comply with the relevant safe keeping and storage requirements under this Act; and the licensee must not permit any other person to possess or use any firearm in the licensee's possession if that other person is not authorised to possess or use the firearm.

131. In this matter, it is alleged the Applicant contravened s7A of the Act by giving possession of his firearm, namely the Vektor Rifle, to Mr Francis to modify, contrary to the condition of his licence (s19(2)(b)).

Licence authorities and limitations

132. Section 8(1) of the Act prescribes the types of firearms that apply to each category of licence and the authority the licence confers. Relevantly, s8 provides in respect of a category AB firearm licence, “All prohibited firearms are excluded from this licence category.” The licensee is authorised to possess or use a registered firearm of the kind to which the licence applies, but only for the purpose established by the licensee as being the genuine reason for possessing or using the firearm.

132. Notably, under both category A and B firearm licences, the Applicant could not possess a prohibited firearm. The licence authority also did not enable the Applicant to manufacture or convert firearms. Such authority is only granted to a firearms dealer

133. A category AB licence holder cannot manufacture or convert firearms or firearm parts. That proposition is confirmed by s9(1) of the Act that provides:

(1) A licence that authorises the licensee to have possession of a firearm also authorises the licensee to have possession of the firearm while:

(a) taking it to a licensed firearms dealer for the purpose of:

(i) selling it, or

(ii) having it converted, maintained, tested or repaired and subsequently recovering it from the dealer

135. Relevantly, the terms "firearm" and "firearm part" mean:

"firearm " means a gun, or other weapon, that is (or at any time was) capable of propelling a projectile by means of an explosive, and includes a blank fire firearm, or an air gun, but does not include anything declared by the regulations not to be a firearm.

"firearm part" means a barrel, breech, pistol slide, frame, receiver, cylinder, trigger mechanism, operating mechanism or magazine designed as, or reasonably capable of forming, part of a firearm.

136. It is alleged that the Applicant:

• outside the authority conferred on him by his category AB licence, intended to and tried to manufacture firearm parts; and

• contrary to ss7A and 9(1) took his firearm to a person who was not a licensed firearms dealer to convert or modify his firearm.

137. The fact that the Applicant, on his own admissions, was having his firearm converted and repaired by a person other than a firearms dealer, and seeking himself to manufacture firearm parts is inconsistent with the limitations imposed on him by the Act. It would be against the public interest for such a person to retain the privilege of a licence.

Preventing unauthorised access to firearms

138. As said above, s7A makes it an offence to contravene a licence condition, such condition as set out in s19(2) includes:

(b) the licensee must not permit any other person to possess or use any

firearm in the licensee's possession if that other person is not authorised to possess or use the firearm

139. Section 39 of the Act requires that firearms must be stored safety:

(1) A person who possesses a firearm must take all reasonable precautions to ensure:

its safe keeping, and

that it is not stolen or lost, and

that it does not come into the possession of a person who is not authorised to possess the firearm.

140. The obligation to prevent unauthorised access to firearms by unlicensed persons is a personal obligation imposed on the licence holder.

141. It is alleged that the Applicant provided his firearm to Mr Francis, at least for the purpose of modification.

Restriction on possession of ammunition

Tight controls on registration on firearms and firearm parts

142. Section 36(1) of the Act (in Part3, Division 2 of the Act) provides:

36 Unregistered firearms

(1) A person must not supply, acquire, possess or use a firearm that is not registered.

Maximum penalty: imprisonment for 10 years if the firearm concerned is a pistol or prohibited firearm, or imprisonment for 5 years in any other case.

63. Section 93(1) extends the operation of s36(1):

93 Registration of firearm frames and receivers

(1) Part 3 of this Act (Registration of firearms) applies to every firearm frame and firearm receiver in the same way as it applies to a firearm.

143. The terms "firearm frame" and "firearm receiver" are not defined in the Act. However, it is noted that s4 defines firearm part as:

"firearm part" means a barrel, breech, pistol slide, frame, receiver, cylinder, trigger mechanism, operating mechanism or magazine designed as. or reasonably capable of forming, part of a firearm.

144. The licensing regime under the Act is strict and ought to be interpreted in that fashion: England. The Receiver was sold by Tactical Machining America as a receiver (and not as any other object, or to serve any other function or purpose). It has all the features to be a receiver. It is designed to be a receiver. It is reasonably capable, with some work, to be a receiver and form part of a firearm. The description of it being a lump of metal is, with respect, inapt.

Restrictions on prohibited firearms

145. A prohibited firearm is defined in Schedule 1 to the Act, and relevantly includes:

11 A firearm, not being a pistol, fitted with a stock that is specially designed so as to be readily detachable, or to operate on a swivel, folding or telescopic basis.

146. It is alleged that the Applicant possessed a prohibited firearm, namely the Vektor Rifle. As set out in the statements of DSC Ferris and Mr Wilson, the Vektor Rifle had a telescopic stock attached to it that was (and therefore designed to be) readily detachable.

Restrictions on prohibited weapons

147. The Ruger magazine was purchased by the Applicant at a swap meet. He held no permit under the WP Act. It had a capacity of more than 15 rounds. It was a prohibited weapon. The fact he took it apart to seek to replicate it in some fashion, did not mean it ceased to be a Ruger magazine or that he never acted in contravention of the WP Act. The fact he seeks to replicate it causes an additional concern.

Public interest ground

148. The Court of Appeal in the Kocic decision, was explicit about the unfettered nature of the public interest ground to refuse a licence under s11(7) of the Act:

at [39], [41], [92], [93] and [127]. Leeming JA said:

[93] ... The opening words of s11(7) ("Despite any other provision of this section") tell against a construction where the exclusion of some matters from one qualification upon power impliedly operates to exclude the same matters from a separate and overriding qualification to the power.

149. White J said at [127]:

... In my view the width of the public interest criterion in s 11(7) is not limited by the earlier provisions in s 11(3), the non-satisfaction of any of which will necessarily result in refusal of the application.

150. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25] the Appeal Panel said that the 'public interest':

is an inherently broad concept giving the appellant [the Commissioner) the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual

151. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) ALR 657, it was stated at 681:

The purpose of the reference to 'public interest' is to ensure that private interests are not only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation.

152. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual: Director of Public Prosecutions v Smith (1991) 1 VR 63.

153. In Livadaru v Commissioner of Police [2008] NSWADT 160, Deputy President Handley stated at [54]:

In considering the public interest, regard must be had to the underlying principle of the Act, stated in section 3(1), emphasising that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. In Ward, at paragraph 28, Deputy President Hennessy stated in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk.

154. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at paragraph 27 to paragraph 28, Deputy President Hennessy said that in terms of public safety:

27.... The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.

28. The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.

155. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].

156. The public interest requires that all licensees be aware of, and comply with, the legislative requirements: Cook v The Commissioner of Police [2003] NSWADT 30. The public needs to be confident that those who are afforded the privilege of a firearms licence will comply with the legislative requirements: Morris v The Commissioner of Police [2002] NSWADT 223.

157. The Applicant has, within the very short period he held a firearms licence, engaged in conduct inconsistent with the behaviour expected of a licence holder (granted the privilege of a licence). As set out above at paragraph 6 of these submissions, the Applicant's conduct;

• reveals a lack of understanding of his obligations under the Act and that he holds beliefs in opposition to the Act, which are confirmed by his conduct;

• demonstrates activity inconsistent with the scheme of the Act and WP Act;

• is in contravention of the Act, his licence conditions and the WP Act; and

• associates himself (as a licence holder) with an unlicensed person (who is now in jail for firearm related offences) to have firearm related dealings.

158. Regardless of the outcome of the criminal proceedings, and whether the conduct is in contravention of the Act or WP Act, it is against the public interest to give the Applicant a firearms licence when:

• The Applicant admits his lack of knowledge of his obligations as a licence holder and that he "don't believe in licensing and all that crap";

• The Applicant acquires an item from Tactical Machining, namely a firearm receiver and takes steps to turn it into a functional Receiver;

• The Applicant purchasing a Ruger magazine (in respect of which it had a capacity to carry more than 15 rounds) when he held no permit for such a magazine. Further, the Applicant having in his possession that Ruger magazine when he did not have any legitimate reason to have that magazine in his possession. Further, the Applicant having that magazine to enable him to attempt to make a replica of it (when he was not a firearms dealer or manufacturer);

• The Applicant having a 3D printer with the intention to, and using it to, make firearm parts, such as a pistol grip and magazines (including because he couldn't get those items "through customs"). Further, such actions are contrary to his authority and licence as a category AB licence holder; and

• His conduct which demonstrates a lack of understanding of his obligations as a licence holder.

• The Applicant said "... the same as Paul.” Mr Paul Francis, to whom the Applicant refers, did not hold a firearms licence, modified firearms and committed various firearm related offences for which he is now serving time in gaol. The Applicant's own association with Mr Francis, and his beliefs, is incompatible with the privilege of a firearms licence.

• The Applicant associating with Mr Paul Francis (who did not have a firearm licence or permit at all) and having dealings with him in relation to firearms, firearm repairs and modifications;

• The Applicant providing to Mr Francis, the Vektor Rifle;

• The Applicant engaging Mr Francis (who did not have a licence or permit), to make modifications to the Vektor Rifle;

• The Applicant taking possession of the Vektor Rifle from Mr Francis, so modified; and

159. The public would be rightly concerned if the Applicant held the privilege of a firearms licence in all the circumstances. The correct and preferable decision is to affirm the refusal to issue a licence to the Applicant.

The Tribunal’s consideration

The Tribunal’s Findings

The “Magazine”

160. Mr Masterson’s conviction for possess or use a prohibited weapon (the “magazine”) was quashed by the District Court. The evidence before the Tribunal contained in the transcript of the search of Mr Masterson’s home shows Mr Masterson telling Detective Senior Constable Iverach: “That’s a broken magazine. I’m not really in possession of that. I bought that so I could get the measurements off it to make a 10 round or 15 rounder.”

161. Mr Wilson did not note in his certificate that there was a broken magazine. In his evidence before the Tribunal he said “I think I would have noticed that if it had been the case.” He said he felt when he examined it that it was in one piece. He said however, that if it had been in two parts when he had seen it, then his opinion that it was a magazine would quite possibly have been different.

162. When Mr Smith saw the pieces of plastic at St Mary’s Police Station prior to 1 May 2013 - they were separated. The Tribunal is satisfied that the item found at Mr Masterson’s home was two pieces of plastic.

163. By the time the pieces of plastic came before the Local and District Courts, it appears that they had been glued together. Mr Masterson stated in his evidence that in the District Court, his barrister had raised the fact that the item had been glued together and Detective Ferris then pulled it apart in the District Court.

164. Mr Smith’s evidence is that a number of pieces were needed to make the glued together piece a functioning magazine such as a carry plate and a spring. Mr Wilson’s evidence was similar, but he still concluded that it was a magazine and a prohibited weapon.

Offence of unauthorised possession or use of prohibited weapon

165. Section 7 of the Weapons Prohibition Act 1998 (WPA), sets out the offence of unauthorised possession or use of prohibited weapon.

166. The Tribunal is satisfied Mr Masterson was not authorised to possess a prohibited weapon.

167. The relevant definition of a prohibited weapon in Schedule 1 (4) of the Weapons Prohibition Act 1998 includes a range of magazines as being prohibited weapons.

168. Section 4 (2) of the WPA 1998, the definitions section, provides that anything that would be a prohibited weapon if it did not have something missing from it, or a defect or obstruction in it, is taken to be a prohibited weapon.

169. The evidence is that even once the 2 pieces were glued together, more components were needed to enable the magazine to hold or fire any rounds.

170. The Tribunal is satisfied that the evidence is that the 2 pieces of plastic did not merely have something missing from it, nor just a defect or obstruction. In the Tribunal’s view, the items do not meet the descriptions above.

171. The Tribunal also notes that the item was not of Ruger manufacture.

172. The Tribunal is not satisfied that Mr Masterson has contravened section 7 of the Weapons Prohibition Act 1998, in that Mr Masterson did not possess a prohibited weapon in the form of a Ruger Magazine.

The slide or receiver

173. Mr Masterson’s conviction in the Local Court “possess unregistered firearm – not prohibited firearm/pistol under section 36 (1) of the Firearms Act 1996 was quashed in the District Court. This related to the slide or receiver.

174. The issues were – was the item a receiver; did Mr Masterson possess it and if so had Mr Masterson failed to register it as required?

175. To establish a contravention of the requirement that Mr Masterson not possess an unregistered firearm, the Tribunal needs to be satisfied on the balance of probabilities set out in section 140 of the Evidence Act 1995 that Mr Masterson was in breach of the requirement. The Tribunal would need to be satisfied that Mr Masterson possessed a receiver which was unregistered.

176. The Tribunal is satisfied that the item did not form part of a registered firearm. and that the item had not been registered. The Tribunal is satisfied that Mr Masterson possessed the item as it was found at Mr Masterson’s home in the search.

177. The question remains – was it a receiver?

178. Mr Masterson’s comment about the receiver at the time of seizure was:

“Well that was going to be for a straight pull Stallenberg.… I spoke to the Firearms Registry before I bought them. They said it doesn’t have to be registered until you take it to a gunsmith and get the barrels put into them… They didn’t, I haven’t even got the barrel… They said it’s an action driller, an action driller is a registered part, a barrel is not registered part they’re not registered until they are joined.

179. Mr Masterson then identified the blue razor as a template: “Yeah it’s to drill that. There is nothing in that barrel… They said I didn’t have a permit for it. The email’s on my computer.”

180. In his evidence before the Tribunal, Mr Masterson said he had received the “receiver” in the mail with the holes already drilled in it.

181. Mr Wilson’s evidence before the Magistrate was that the item was a receiver because it was designed and manufactured for fitting into a firearm. Mr Wilson told the Magistrate that they do not have a definition of a receiver. “We work with the actual piece that we are presented with, which in my opinion is a receiver, from my experience of trading and that’s what we work with.”

182. Mr Wilson stated that it was the main component of a Ruger 10/22 self-loading rifle. It was manufactured from aluminium or aluminium alloy and was at a stage where it could be fitted into a firearm with a number of other steps being performed. It had a bolt, with the firing pin fitted, but needed a trigger assembly. Mr Wilson said this is quite easy for anyone to do by downloading instructions from the Internet, filling out the portion of the item so that a barrel could be fitted.

183. Mr Smith’s view was that, in its current form, the item was just a lump of aluminium and that it would take considerable skill, work and machining to turn it into a receiver to fit a barrel. The Magistrate had noted that the item already had the bolt and firing pin fitted when it was seized.

184. Mr Smith said that the piece of metal had various holes drilled to which a trigger device could be attached, but it certainly lacked the main hole which would attach it to the barrel. He said that the general definition of a receiver is that working part of a firearm that contains most of the working parts and mounts the barrel. This receiver doesn’t have that hole in the front of the action - so it cannot receive a barrel and as such it is not at the point where it can become part of a firearm. That’s of course what the Firearms Registry insists upon as far as their instruction to firearms dealers. The Act doesn’t describe it all. The Firearms Registry insist upon, that’s the point, as they have instructed firearms dealers, that that is the point at which it becomes a firearm part - when it can form part of the firearm when it actually comes capable of becoming part of the firearm, of receiving a barrel.” Mr Smith did not think it was a backyard workshop process. These operations aren’t something you can do in a drill press or home workshop. It requires quite a bit of setup, complicated tooling and jigs to make it square and online.

185. Mr Smith later agreed under cross examination that it was a partially constructed receiver, but stated “It is not a receiver by the standards that we have to work with as far as the Firearms Registry are concerned. It could not function. It was designed to eventually be a receiver, yes, it was intended to be a firearm part.”

186. The District Court overturned the conviction because the Magistrate had noted that there was no definition of receiver in the Firearms Act 1996. In the absence of a definition of a receiver, the Magistrate had not articulated why Mr Wilson’s view was to be preferred over that of Mr Smith – and the Crown had not made out its case beyond reasonable doubt.

187. Mr Smith asserted that the item was not a receiver and referred to the requirements of the Firearm Registry in defining what a receiver is. In his second statement of evidence in July 2016, Mr Wilson refers to the National Firearm safety code glossary which describes a receiver as the frame of a firearm consisting of breech, locking and reloading mechanisms. The Firearms (Long arms) Users guide describes a receiver as:

the frame which contains the operating (or moving) parts of the firearm and includes the breech, (which is usually the part of the barrel that includes the chamber in which cartridge or projectile is loaded) and firing mechanism.

234. Mr Masterson also said that the Glock magazine found in the search was only a model. It was 70% scale case. It was made of PLA plastic which actually dissolves in water. A real Glock magazine has a metal case and there is an injection moulded plastic and everything on the outside of it.”

235. Under cross examination Mr Masterson told the Tribunal that he believed he was entitled to make a magazine under his category AB licence.

236. Wherever there is a conflict between the 2 versions, the Tribunal prefers the evidence of Mr Masterson’s comments to the search party, to that given in his subsequent statement and before the Tribunal. It is clear that Mr Masterson has had the opportunity to reflect on legislative requirements and to modify his statements through the several legal proceedings, since the search in July 2012.

237. Mr Masterson also stated in his evidence to the Tribunal that the police had tried to twist his words, but this is not evident from the transcript.

238. The Tribunal is satisfied that it is not unlawful to own or use a 3-D printer.

239. The Tribunal is satisfied from Mr Masterson’s evidence that, using the 3-D printer, he intended to make a pistol grip. The Tribunal understands that this is not unlawful.

240. The Tribunal is also satisfied from Mr Masterson’s comments at the time of the search, that Mr Masterson intended to make a functioning magazine. Mr Masterson intended to make his own magazines which he couldn’t get in the country “which are legal in New South Wales.” Initially however, he had only made test models which were not intended to function.

241. The Tribunal is satisfied that Mr Masterson was also experimenting with the printer – which is not unlawful. “It is not to fit anything. It’s just to see if I could make it. It’s the first thing I made. I made a few test models.”

242. The Tribunal is satisfied that Mr Masterson approached Mr Smith to have a firearm made for him. The Tribunal also understands from the email chain between “Tristan” and the Firearms Registry that Mr Masterson was considering having a firearm made for him. This is not unlawful.

243. The Tribunal is satisfied on the balance of probabilities, that Mr Masterson did attempt to make firearms parts – a magazine and a rail. Using the 3-D printer was part of that process. Mr Masterson’s remarks indicate he was disappointed in the printer’s incapacity.

244. The Respondent submitted that under his category AB licence Mr Masterson was entitled only to possess or use and store his firearms. He could take them to a gunsmith. His actions in trying to make firearms are beyond the scope of the authority conferred on him as a licence holder under category AB in section 8 of the Firearms Act 1996.

245. The Tribunal is satisfied that trying to make firearms parts such as the magazine and the rail, is outside the authority of Mr Masterson’s category AB licence, set out under section 8 of the Firearms Act 1996. A firearms licensee may maintain their firearm, but this went beyond that scope.

246. The Respondent submitted that it would be against public interest for Mr Masterson to retain his firearms licence in these circumstances.

Mr Masterson’s Association with Mr Paul Francis

247. The Tribunal is satisfied that Mr Masterson became associated with Mr Francis through a firearms website. The Tribunal is satisfied that Mr Masterson took an air rifle to Mr Francis. Mr Masterson’s uncontradicted evidence was that he did not give either firearm to Mr Francis. The Tribunal cannot be satisfied on the evidence before it that Mr Masterson gave possession of any firearm to Mr Francis.

248. The Tribunal is satisfied that Mr Masterson had Mr Francis make him a new grip for the Vektor rifle. Mr Masterson’s uncontradicted evidence was that he fitted this new grip to the Vektor rifle himself.

249. Mr Masterson ridiculed the suggestion that he should have asked Mr Francis whether he was licensed. Mr Masterson’s evidence that he did not know Mr Francis was unlicensed was not contradicted. The Tribunal is not satisfied that Mr Masterson has committed any offence in his association with Mr Francis

Mr Masterson’s attitude to firearms licensing

250. There is evidence in both the transcript of the initial search at Mr Masterson’s home and in his evidence before the Tribunal, that Mr Masterson does not “believe that firearms should be registered and things like that or at least I believe that the Firearms Registry should be with an independent body and not with the New South Wales police.” He considered that the scheme presented overregulation and that a citizen had a right to own a gun. He believes that once a person has been vetted and has a firearm, he should not have to get a permit for every subsequent firearm. He believes that being able to go shooting and hunting is actually a right and it is not a privilege to have a firearms licence.

251. Mr Masterson stated under cross-examination:

“I know the state calls it a privilege, so I mean that’s something I obey and I have to go along with. Just because I don’t believe in it doesn’t mean I don’t obey it.”

252. Mr Masterson’s views about firearms licensing are in some respects contrary to the objects of the Firearms Act 1996. However, it is not unlawful to hold or express these views. Nor does the Tribunal find it is contrary to the public interest for Mr Masterson to hold or express these views.

Should Mr Masterson’s licence be revoked because he has contravened the Firearms Act 1996 under section 24(2)(b) (ii)

253. Section 24(2)(b)(ii) provides a discretion to revoke a licence where there has been a contravention of the provisions of the Act or Regulations. The Tribunal has found that Mr Masterson has contravened section 7 of the Firearms Act 1996 by possessing a prohibited firearm.

254. The Deputy President has stated in Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at para 23 that "the discretion should be exercised in a way which promotes the principals and objects of the Firearms Act 1996 ".

255. Section 3 of the Firearms Act 1996 sets out the principles and objects of the FirearmsAct 1996. The underlying principles of the Act are:

1. to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

2. to improve public safety:

• by imposing strict controls on the possession and use of firearms, and

• by promoting the safe and responsible storage and use of firearms, and

• to facilitate a national approach to the control of firearms.

256. The objects of the Act include:

to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms,

257. Features of those principles are that the possession and use of a firearm is a privilege which is conditional on the overriding need to ensure public safety and the need to administer strict controls on the possession of firearms.

258. The Tribunal was referred to the matter of Lynch, Lynch v Commissioner of Police, New South Wales Police (GD) [2006] NSWADTAP 43 in relation to considerations of contraventions and the public interest. In that matter, Mr Lynch, an experienced firearms licensee, was found to have breached the Firearms Act 1996 as he held several unregistered and unstored firearms. The ADT affirmed the Commissioner’s decision to revoke Mr Lynch’s firearms licence at first instance. The Appeal Panel affirmed the Tribunal’s first instance decision to affirm the revocation. Mr Lynch had obtained a section 10 of the Crimes (Sentencing Procedure) Act 1999 from the District Court. Although no convictions were recorded - the Appeal Panel considered the storage matters were sufficiently serious to warrant revocation on their own.

Is the contravention in relation to the Vektor Rifle sufficient to warrant revocation of Mr Masterson’s firearms licence under section 24(2)(b) (ii)?

259. In the matter of Lynch v Commissioner of Police, New South Wales Police (GD) [2006] NSWADTAP 43 at 37 the Appeal Panel set out some of the considerations under section 24(2):

37 Once the circumstance to which s 24(2)(b)(ii) is directed (contravention) is present, the Commissioner ‘may’ revoke the licence. No guidance is given in the provision as to what factors might be relevant. Without seeking to be exhaustive, relevant factors would, we think, include the gravity of the contraventions, any history of contraventions, mitigating circumstances and general public policy considerations.

260. In Mr Masterson’s circumstances, the Tribunal considers the possession of a prohibited firearm to be a serious contravention. The legislature has signalled its gravity with a maximum penalty of 14 years’ imprisonment set out in section 7 of the Firearms Act 1996. The principles and objects of the Firearms Act 1996 refer to the need for strict controls on possession of firearms and public safety.

261. Mr Masterson has no history of prior contraventions; however, he had been licensed for approximately 8 months, only, at the time of the search in July 2012. No mitigating circumstances were presented to the Tribunal. Mr Masterson had the new stock fitted to the Vektor Rifle, he had packed cardboard around the pin to stop it moving. This indicates to the Tribunal that Mr Masterson was aware that the telescopic stock may not have been a lawful addition to the Vektor Rifle.

262. General policy considerations might include the principles and objects of the Firearms Act 1996 – the intended strict controls on firearms possession, and considerations of public safety. New firearms legislation was introduced in 1996 with the intention of increasing public safety with strict licensing and a permit regimen for each new firearm. Licensees were required to have a genuine reason for licensing and for permit of each firearm. Making a firearm into a prohibited firearm, contradicts this public policy.

263. In Lynch at [47] the Appeal Panel noted

47   In this instance the contraventions were numerous and very serious. That Mr Lynch escaped a criminal conviction does not mean that he should therefore automatically escape an administrative sanction against his licence. It is necessary for an administrator to take a stand in dealing with serious contraventions that is seen as credible by the broader community, and sends the appropriate signal to licence-holders as to what is unacceptable. The administrator and the Tribunal cannot take an approach, as seems to have been urged on behalf of Mr Lynch in this case, that ignores the systemic implications of its decisions.

48 In our view, the contraventions that occurred in this case were serious enough, giving due weight to Mr Lynch’s history and the explanations given for his conduct, to make the Commissioner’s and Tribunal’s decisions the correct and preferable ones in exercise of the discretion given by s 24(2)(b)(ii). Similarly the separate ‘public interest’ basis for the decision was available in the circumstances. There were aspects of his conduct and explanations which gave rise properly, we think, to the concerns expressed about his misunderstanding of current policy in relation to the personal possession of firearms.

264. Revocation of a firearms licence is driven by the need for public protection – not for punishment of the licensee. The Tribunal also accepts that it is necessary for an administrator to take a stand in dealing with serious contraventions that is seen as credible by the broader community, and sends the appropriate signal to licence-holders as to what is unacceptable.

265. The Tribunal is satisfied that the contravention of section 7 of the Firearms Act 1996, possession of a prohibited firearm, is sufficiently serious to warrant revocation of Mr Masterson’s firearms licence in itself.

Is it contrary to the Public Interest for Mr Masterson to have a firearms licence?

266. The concept of "public interest" has been considered by this Tribunal in several decisions (e.g. Slavicek v Commissioner of Police, New South Wales Police Service [2003] NSWADT 106 Whiteman v Commissioner, New South Wales Police Service [2002] NSW ADT 179: Ward v Commissioner of Police, New South Wales Police Service [2000] NSW ADT 28 and Police v Toleafoa [1999] NSW ADT AP 9).

267. In Toleafoa the Appeal Panel stated at [25] that the public interest is:

"...an inherently broad concept giving the Appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual…..."

268. The phrase `in the public interest' was considered by the High Court in O'Sullivan v Farrar [1989] HCA 61; (1989) 168 CLR 210. In a joint judgment, Mason CJ, Brennan J, Dawson J and Gaudron J stated at 216:

"...the expression `in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only `in so far as the subject matter and scope and purpose of the statutory enactments may enable..."

269. In Ward, the Deputy President held that the `public interest' in relation to the holding of a firearms licence, related to the objects and principles set out in s.3 of the Firearms Act 1996. This means that Mr Masterson’s conduct must again be considered in the light of the over-riding public interest of public safety.

270. The Tribunal is satisfied that the Vektor Rifle had a stock which was specially designed to be telescopic and hence make the rifle more easily concealable, in contravention of the Firearms Act 1996.

271. Mr Masterson’s conduct involved a fundamental breach of the firearms possession requirements of the Firearms Act 1996 which compromised public safety.

272. The Tribunal is also satisfied that Mr Masterson did intend to make firearms parts, a pistol grip, a rail, and magazines for his firearms, although the printer was not good enough to do it. The Tribunal is satisfied that making firearms parts is outside the authority of Mr Masterson’s category AB licence set out under section 8 of the Firearms Act 1996. A firearms licensee may maintain their firearm, but this went beyond that scope. The Respondent submitted that it would be against public interest for Mr Masterson to retain his firearms licence in these circumstances.

273. The Tribunal looks to Lynch v Commissioner of Police, New South Wales Police (GD) [2006] NSWADTAP 43 in relation to considerations of the public interest.

274. The Tribunal distinguishes Mr Masterson’s circumstances, as unlike Mr Lynch, he has not been found guilty of a firearms offence. The Tribunal is satisfied that Mr Masterson has contravened the Firearms Act 1996 by possessing a prohibited firearm. The Tribunal is also satisfied that he has tried to manufacture firearms parts, contrary to the authority of his licence.

275. In considering whether it was not in the public interest for Mr Lynch to retain his firearms licence, the Tribunal at first instance (see Lynch v Commissioner of Police, New South Wales Police [2006] NSWADT 80 at 21) referred to a range of considerations:

(a) the public safety considerations, especially in the environment of the family home, which had led to the enactment of strict firearms storage requirements

(b) the extent of the breaches of the law found in this case

(c) the degree of ignorance displayed by Mr Lynch in relation to his knowledge of the relevant requirements

(d) the opportunity that Mr Lynch had to regularise his situation so far as unregistered weapons were concerned through the well-publicised amnesties that occurred between June and November 2001, and for the 12-month period commencing October 2003 and ending September 2004

(e) the extent of the testimonials to Mr Lynch’s good character from 47 people from ‘various walks of life ranging from teachers and politicians to local business people and friends of long standing’ (at [15] of Tribunal’s reasons)

(f) his sense of shame, and his commitment to never reoffending again

(g) his practical needs for firearms.

276. The Tribunal in Lynch also considered the question, drawing on the approach taken by Hennessy DP in Ward v Commissioner of Police [2000] NSWADT 28 at [27]- [28], as being whether the decision-maker can ‘have confidence that [the applicant] would not pose a risk to public safety if he had access to firearms’. The Tribunal needed to be satisfied there was “virtually no risk.”

277. The Tribunal weighed up these matters as follows:

‘27 Although there was unquestionably a risk to public safety through Mr Lynch’s actions, that risk did not materialise. Fortunately, the weapons did not fall into the hands of criminals nor did unauthorised persons use them. The police seized them. I need to determine the degree of risk to public safety if Mr Lynch’s licence were reinstated.

28 Many factors need to be weighed in forming a view as to the risk to the public. The authorities to which I have been referred set out some of those factors however each case will inevitably raise its own peculiar issues for consideration.

29 I have no concerns about Mr Lynch’s character or his commitment to comply with the law in future. However, in the circumstances of this matter I have concerns with respect to Mr Lynch’s understanding of the obligations imposed on the holder of a firearms licence.’

278. The Tribunal has applied these considerations in relation to Mr Masterson. There is, of course, inherent risk in the possession of a rifle which can be concealed because of the telescoping of the stock.

279. At the same time, the Tribunal recognises that the public safety concerns might have been mitigated by the fact that the Vektor Rifle was stored in Mr Masterson’s safe – reducing the risk that it could fall into other hands, besides Mr Masterson’s own hands.

280. The making of firearms parts when not authorised to do so effectively undermines the objects of the Firearms Act 1996 in promoting public safety through the strict control of the possession of firearms. At the same time, however, Mr Masterson’s contraventions were fewer than Mr Lynch’s.

281. Mr Masterson said during the search “So you’re going to try and get me for manufacturing something, are you? “. He also said in relation to the broken magazine “I’m not really in possession of that” indicating again a certain understanding of legislative prohibitions. This indicates, in the Tribunal’s view, that Mr Masterson was aware that he was not authorised to make firearms. However, Mr Masterson did not appear to be clear about the scope of his authority as an AB licence holder during cross examination. In the Tribunal’s view, this demonstrates a combination of educated wilfulness and ignorance on Mr Masterson’s part in relation to firearms regulation. Because of this, the Tribunal cannot be certain that Mr Masterson would operate within the scope of the legislation and his authorities in the future.

282. While Mr Lynch may have expressed some remorse or contrition about his contraventions of firearms storage requirements, Mr Masterson has defended himself adamantly. He has denied breaching firearms legislation. He has not suggested that he might behave differently in the future.

283. There were no character references offered by Mr Masterson. It is difficult to understand what support he has in the community for his personal integrity in this respect.

284. It is also clear to the Tribunal that Mr Masterson does not have a need for a firearm – other than for recreation. There was no evidence his livelihood depended upon the holding of a firearms licence.

285. The Tribunal has considered the risk to public safety caused by Mr Masterson’s behaviour and contravention of firearms legislation.

286. The Tribunal notes that there was no evidence of an adverse outcome to members of the public. However, the Tribunal must be satisfied that there is virtually no risk to public safety. The creation of firearms parts by an unauthorised person avoids the tracking of firearms which is integral to the safety objects of the legislation. It also undermines the principle of imposing strict controls on possession of firearms. Possession of a prohibited firearm is a serious criminal offence and a clear challenge to the Firearms Act 1996.

Decision

287. The Tribunal affirms the Respondent’s decision to revoke the Applicant’s firearms licence.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 11 January 2017