P v Registrar of Firearms (Administrative Review)
[2018] ACAT 20
•8 March 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
P v REGISTRAR OF FIREARMS (Administrative Review) [2018] ACAT 20
AT 22/2017
Catchwords: ADMINISTRATIVE REVIEW – firearms licence – decision to refuse licence – whether Registrar or Tribunal can require mental health assessment in considering licence application and can take into account in the decision a failure to obtain this – interpretation of power to require information or documents – consideration of text, context, purpose, analogous provisions and operation of Mental Health Act – principle of legality – interpretation in accordance with human right not to be subjected to medical treatment without consent discussed – whether a belief that because of mental health issues a person may not handle firearms responsibly and therefore not be suitable to have a licence –whether a belief that because of information held it would be contrary to the public interest for a person to have access to a firearm and therefore not be suitable to have a licence
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 22, 39, 56, 68
Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 10, 32
Discrimination Act 1991 ss 5AA, 7, 30, 56
Firearms Act 1996 ss 5, 6, 7, 17, 18, 37, 42, 43, 56, 57, 58, 208, 209, 260A, 261
Human Rights Act 2004 ss 10, 30
Legislation Act 2001 s 139
Mental Health Act 2015 ss 37, 43
New Zealand Bill of Rights Act 1990 (NZ) ss 11, 30
Cases cited:Beaman v Commissioner of Police, NSW Police Force [2017] NSWCATAD 191
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Esber v Commonwealth (1992) 174 CLR 430
Momcilovic v Queen (2011) 245 CLR 1
Potter v Minahan (1908) 7 CLR 277
R v B [1995] 2 NZLR 172
R v Fearnside (2009) ACTLR 25
R v Hansen [2007] 3 NZLR 1
Re Islam (2010) 4 ACTLR 235
Rowlands v New South Wales (2009) 74 NSWLR 715
Thomson v ACT Planning and Land Authority [2009] ACAT 38Waters v Public Transport Corp (1991) 173 CLR 349
YCO v Firearm Appeals Committee [2008] VCAT 966
Tribunal: Senior Member R Orr QC
Date of Orders: 8 March 2018
Date of Reasons for Decision: 8 March 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 22/2017
BETWEEN:
P
Applicant
AND:
REGISTRAR OF FIREARMS
Respondent
TRIBUNAL: Senior Member R Orr QC
DATE:8 March 2018
ORDER
The Tribunal orders that:
The decision of the delegate of the Registrar of Firearms to refuse a licence under the Firearms Act 1996 is set aside.
The Tribunal substitutes its decision to refuse the licence. This is on the basis that on the available evidence there are reasonable grounds for believing that because of Mr P’s mental health he may not handle arms responsibly, and that information held by the Australian Federal Police in relation to Mr P indicates that it would be contrary to the public interest for him to have access to a firearm.
Under section 39(2)(b) of the ACT Civil and Administrative Tribunal Act 2008 the publication or provision of public access to the evidence given in this matter and documents filed with the Tribunal that could identify the applicant can only take place by further order of the tribunal.
………………………………..
Senior Member R Orr QC
REASONS FOR DECISION
P, the applicant in these proceedings (Mr P or the applicant), applied for a firearms licence under the Firearms Act 1996 (Firearms Act). This application was rejected by the delegate of the Registrar of Firearms (Registrar or respondent). The decision to deny the licence was made on three grounds, which in summary were, first, a failure by Mr P to provide a written mental health report in response to a notice by the Registrar requiring him to do so, second, a belief that because of Mr P’s mental health he may not handle firearms responsibly and, third, a belief that because of information held by the Australian Federal Police (AFP) it would be contrary to the public interest for Mr P to have access to a firearm.[1]
[1] Exhibit R1, T documents, page T40
Mr P has sought review of this decision in these proceedings.
Summary of Tribunal decision
The first ground for the decision was not pressed by the Registrar in these proceedings. In a preliminary hearing the Tribunal indicated that it did not think that the Registrar could require an applicant for a licence to undergo a mental health assessment, and that the Tribunal also could not do so, and affirms this finding in this decision. The failure by Mr P to provide a mental health report does not of itself provide a basis for refusing the licence. Because the decision to deny Mr P the licence was made in part because of Mr P’s failure to provide a written mental health report, and because significant additional evidence concerning the other grounds was before the Tribunal, the decision of the Registrar is set aside and the Tribunal makes a substitute decision.
The other grounds for the decision by the Registrar were a belief that because of Mr P’s mental health he may not handle firearms responsibly, and a belief that because of information held by the AFP it would be contrary to the public interest for him to have access to a firearm. Given the evidence before the Tribunal of the applicant’s current mental health, the Tribunal decides to refuse the licence on these bases.
Much of the evidence and argument before the Tribunal concerned Mr P’s mental health. The Tribunal does not think it appropriate that this evidence should be made public in a way which identifies Mr P as its subject. Therefore in these reasons the name of the applicant is not disclosed, and a relevant confidentiality order has been made.
The decision of the Registrar
On about 15 January 2017, Mr P applied for an adult firearms licence to possess class A and B firearms. In answer to the question in the application form “what is your genuine reason for having a firearm licence” he responded: “target shooting” and “vermin control on rural lands”. In the application Mr P disclosed that he had suffered or received treatment for a “mental or emotional illness” and stated: “My last appointment with ACT MH [Mental Health] ended on 10/3/16” and gave a file reference and contact number.[2] Mr P had previously held a firearms licence but this had apparently been cancelled in March 2005.[3]
[2] Exhibit R1, T documents, pages T8-15
[3] Exhibit R1, T documents, page T134
By letter dated 20 January 2017 the Registrar required under section 56 of the Firearms Act written consent to obtain health records concerning Mr P.[4] Mr P granted his permission to obtain those records in a letter dated 25 January 2017.[5]
[4] Exhibit R1, T documents, page T18
[5] Exhibit R1, T documents, page T205
By letter dated 1 February 2017 the Registrar required under section 56 of the Firearms Act that Mr P “obtain a mental health assessment and report from a psychiatrist which specifically addresses and outlines your suitability to have access to firearms”.[6] A similar request was made by letter dated 21 February 2017.[7] Mr P responded to this request but did not obtain an assessment.[8]
[6] Exhibit R1, T documents, page T20
[7] Exhibit R1, T documents, pages T26-27
[8] Exhibit R1, T documents, pages T24-25, 28-37, and 220-221
By letter dated 22 March 2017 the Registrar refused the application on a number of grounds.
(a)One was that “failure to comply with section 56(1), (2) of the Act in providing a written report falls under (4) which states the registrar may refuse to consider the application further”.
(b)A second was a belief “on reasonable grounds that because of your mental health you may not handle firearms responsibly”.
(c)A third was a belief “on reasonable grounds that given your mental history (outlined at annexure A) that under section 18(1)(c) information held by a law enforcement agency (AFP) in relation to you indicates that it would be contrary to the public interest for you to have access to a firearm”.[9] The annexure A to the letter set out 19 relevant incidents.[10]
[9] Exhibit R1, T documents page T40
[10] Exhibit R1, T documents page T42
By application dated 13 April 2017 (application) Mr P sought review of this decision in the tribunal. The application stated that the reasons for applying for the review were that “I am not a current ACT MH [mental health] client, my file … is closed. I should be treated upon my merits in recovery back to stable and normal. I construe I have been discriminated because I have a past medical mental impairment/history”. The orders sought were “provision of a new firearms licence” and “compensation to reinstate my reputation from 1973 to 2004 as a recreational sporting shooter …”.[11] In this last phrase, and in other documents provided to the tribunal,[12] Mr P presented a broad claim in relation to past events affecting him. It is important to note that the tribunal’s jurisdiction is limited to the decision about the application for a firearms licence (see paragraph [11] below), though past events can be relevant to this.
[11] Exhibit R1, T documents pages T5-7
[12] See in particular exhibit A10, executive summary email dated 7 June 2017
A decision to refuse to issue an adult firearms licence under section 57 of the Firearms Act is a reviewable decision under sections 258 and 260A and item 5 of schedule 4. The applicant for the licence may apply for review by the tribunal. Mr P has done so. The Firearms Act under which this application is made does not allow Mr P to obtain in the tribunal compensation for loss of reputation or other matters.
Interim application hearing
An application for interim or other orders was made by the Registrar on 14 August 2017 (interim application). This interim application sought orders that the Registrar arrange a psychiatric medical examination for Mr P and that he “is required to give the Tribunal information in the form of a report by the examining psychiatrist of that examination”. The grounds relied upon included the general powers of the tribunal in sections 22, 56 and 68 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), and sections 56 and 260A of the Firearms Act. This interim application was heard on 18 August 2017. Dr Jarvis appeared for the Registrar; there was no appearance by or for Mr P. The Registrar provided a document which set out in further detail the grounds relied upon, and a number of documents in support of the interim application (exhibits R1 to R3 in the interim application).
The interim application was rejected with brief oral reasons provided. As noted, the decision of the Registrar to reject the application by Mr P was based in part on section 56 of the Firearms Act and the failure of Mr P to obtain a psychiatric assessment, although this ground was not pursued at the substantive hearing because of the decision on the interim application. In light of the role of section 56 in the interim application, and in the decision of the Registrar under review, the Tribunal in these reasons does address this issue, in some more detail than the oral reasons on the interim application, at paragraphs [27]–[52] below.
Substantive application hearing
The substantive review of the decision was heard by the Tribunal on 11 September 2017.
Mr P represented himself. He provided a number of bundles of documents (in particular exhibits A1, A2, A16, and A18), and a number of individual documents (as exhibits A10 to A17).
Mr P gave oral evidence at the hearing. He also provided a range of reference statements (exhibits A3-A9 and A14), and two of these referees gave oral evidence.
The Registrar was represented at the substantive hearing by Dr Jarvis. The Registrar provided a statement of facts and contentions. The documents relevant to the decision of the Registrar in issue in the proceedings were exhibit R1 (the T documents). A report of Dr John Saboisky dated 18 August 2017 was attached to the respondent’s statement of facts and contentions (and marked as exhibit R2). Dr Saboisky also gave oral evidence. The respondent also provided a range of other documents (exhibits R3 to R8).
Structure of the regulation of firearms
Section 5(1) of the Firearms Act sets out the underlying principles of the Act which include in paragraph (a) “to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety”.
In summary, a person commits an offence if they possess or use a prohibited firearm[13] or a firearm[14] which is not authorised by a licence, permit or otherwise under the Firearms Act.[15] The general authorisation mechanism under the Act is broadly a two step process.
[13] Section 7 of the Firearms Act
[14] Section 6 of the Firearms Act
[15] Sections 42 and 43 of the Firearms Act
Under the first step, a person must obtain a firearms licence.[16] Section 57 provides that on an application for an adult firearms licence, the Registrar must issue the licence unless prevented from doing so by the Act. Section 58(1) then provides that the Registrar must refuse to issue an adult firearms licence unless satisfied on reasonable grounds: “(b) that the applicant is suitable”; and “(c) that the applicant has a genuine reason for possessing or using a firearm”. Under subsection (2) the Registrar must also refuse to issue the licence if: “(e) the Registrar believes on reasonable grounds that it would be contrary to the public interest to issue the licence”.
[16] Part 7 of the Firearms Act. The second step involves obtaining a permit to acquire a firearm under Part 9 of the Firearms Act, but this step is not relevant to this case
As to the requirement that the applicant be suitable, section 17 applies if the Registrar is deciding an individual’s suitability in relation to an application under the Act. In making the decision, the Registrar: “(a) must consider any discretionary criteria under section 18 that apply to the individual”. Section 18 then provides in part as follows:
18 Assessing suitability of individuals—discretionary criteria
(1) For section 17, the following are the discretionary criteria in relation to an individual:
(a) whether the registrar believes on reasonable grounds that, because of the individual’s physical or mental health, the individual may not handle firearms responsibly;
Note 1 Under s 56, the registrar may require the applicant for an adult firearms licence to give the registrar stated further information or documents that the registrar reasonably needs to decide the application. This could include a document that is a consent to the disclosure of personal health information (see s 56 (3)).
…
(c)whether the registrar believes on reasonable grounds that information held by a law enforcement agency in relation to the individual indicates that it would be contrary to the public interest for the individual to have access to a firearm;
…
Under subsection (2) ‘law enforcement agency’ means the Australian Federal Police and other agencies.
Where there is an application for an adult firearms licence the Registrar has the powers set out in section 56 which provides in part as follows.
56 Adult firearms licences—requirement for further
information etc
(1) This section applies to an application for an adult firearms licence.
(2) The registrar may give the applicant a written notice requiring the applicant to give the registrar stated further information or documents that the registrar reasonably needs to decide the application.
(3) Without limiting subsection (2), if the registrar believes on reasonable grounds that the applicant’s mental health may affect the applicant’s ability to handle firearms responsibly, the registrar may ask the applicant to consent to the disclosure to the registrar of personal health information about the applicant from a health record relating to the applicant.
…
(4) If the applicant does not comply with subsection (2) (other than in relation to the consent mentioned in subsection (3)), the registrar may refuse to consider the application further.
…
Bases for rejection
Under section 68 of the ACAT Act the Tribunal must (a) confirm, or (b) vary, or (c) set aside and make a substitute decision or remit the matter that is the subject of the original decision. The Tribunal conducts merits review of an administrative decision, and in doing so is required to stand in the shoes of the original decision maker, and where appropriate make the correct or preferable decision.[17]
[17] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 419; Esber v Commonwealth (1992) 174 CLR 430, 440
Set out above at paragraph [9] are the three reasons given for refusal of the licence. Of the three reasons given by the decision-maker, the first in relation to the provision of a mental health assessment was considered indirectly in the interim application hearing, and not pursued at the substantive hearing. The Tribunal in these reasons does address this issue. In relation to the other reasons significant further evidence was provided which was not before the original decision-maker. On this basis, the original decision is set aside and the Tribunal makes a substitute decision.
The Registrar raised a number of other issues in relation to Mr P’s application.[18] Many of these were addressed by Mr P in the hearing, and it was conceded by the Registrar that leaving aside the mental health issues, the relevant requirements for a firearms licence for target shooting had been met.[19]
Ground 1: Failure to provide written psychiatric report
[18] Respondent’s statement of facts and contentions, paragraphs [40]-[66]; transcript of proceedings on 11 September 2017, pages 25-29
[19] Transcript of proceedings on 11 September 2017, page 91
As noted above, one basis for rejection of the application was “failure to comply with section 56(1), (2)” of the Firearms Act in not providing a written psychiatric report, because of which the Registrar may refuse to consider the application further. The Tribunal notes that this in its terms is a decision to refuse to consider an application for a licence, rather than a decision to refuse to issue a licence; this may have implications for the Tribunal’s jurisdiction to review this aspect of the decision under item 5 of Schedule 4 of the Firearms Act. However, no issue in this regard was raised by the parties, and it appears that the Registrar treated this failure to comply with section 56 as in effect a ground for refusing the application in the original decision.
Further, in the interim application the Registrar sought an order from the Tribunal that Mr P is required to give the Tribunal information in the form of a psychiatric report. While the Tribunal rejected that interim application with oral reasons, it seems appropriate to set these out here in more detail. Apparently on the basis of the decision in the interim application the Registrar did not pursue this ground in the substantive application, but in setting out in this decision the reasons for the decision on the interim application, the Tribunal also in effect deals with this first ground for refusal of the licence.
Text of section 56 of Firearms Act
Section 56 provides that the Registrar may give the applicant a written notice requiring the applicant to give the Registrar stated further information or documents that the Registrar reasonably needs to decide the application. The issue raised is whether this section extends to allowing the Registrar, and the Tribunal, to require an applicant to undergo a mental health assessment. It is important to begin with the text of the section, which is set out at paragraph [23] above.
The concept of ‘information’ in this context seems to mean information which exists and which the applicant knows or can access, and ‘documents’ means documents which exist and which the applicant holds or can access. The primary meaning of information is “knowledge communicated or received concerning some fact or circumstance” and of document is “a written or printed paper furnishing information or evidence, a legal or official paper”.[20] The concept of the applicant giving information suggests giving information which they hold or can access, and of giving documents suggests giving documents which they hold or can access.
[20] Macquarie Dictionary Online
There is certainly no explicit indication in section 56 that the power extends to requiring the applicant to create new information or new documents, in particular by undergoing a mental health examination which results in a report.
Regard needs also to be had to the terms of section 56(3). It is true that this begins with the words “without limiting subsection (2)”. But it goes on to specifically include that the Registrar may ask the applicant to consent to the disclosure to the Registrar of personal health information about the applicant from a health record relating to the applicant. This is a request for a significant imposition on the privacy rights of the applicant. But it is in relation to existing personal health information. There is no basis for suggesting that this provision can be used to require submission to a new medical examination from which a new record would emerge. Also, in contrast to section 56(2), the request is only for the applicant’s consent; there is no obligation to provide the consent. Further, it is noted that section 56(4) states that if the applicant does not comply with subsection (2) (other than in relation to the consent mentioned in subsection (3)), the Registrar may refuse to consider the application further; that is failure to consent to the disclosure to the Registrar of personal health information does not allow the Registrar to refuse to consider the application. Given this structure, it would be an odd result if section 56(2) allowed a notice requiring the applicant to obtain a new medical report where failure to do so allowed the Registrar to refuse to consider the application.
The terms of section 56 suggest that it does not extend to requiring an applicant to undergo a mental health assessment.
Context
There are a range of enforcement powers in the Firearms Act. These include to enter premises in specified circumstances (section 203), seize things (section 209) and execute search warrants (Division 14.3). These powers are in a traditional form, principally going to obtaining existing evidence; they clearly do not extend to powers requiring person to create evidence.
Section 261 of the Act provides that if a health professional believes that a person to whom they are or have been providing professional services may pose a threat to public safety and possesses or has access to a firearm, the health professional may tell the Registrar. This is a facilitative provision; it places no obligation on the health professional to report, or to conduct inquiries.
Analogous powers
The power in section 56 is similar to a subpoena or summons used in judicial or administrative proceedings or investigations. Such processes involve requiring a person to provide documents which they hold, or disclose evidence or information they hold. Without an express requirement, such provisions do not generally extend to requiring a person to create new information or new documents, and in particular submit against their will to a medical examination and thereby obtain a report. Legislative provisions permitting such compulsory disclosures are required and are strictly construed.[21] It is true that in personal injury litigation some courts have an inherent jurisdiction to order the plaintiff to submit to a reasonable medical examination,[22] but I do not think that the Registrar or Tribunal have such inherent powers.
Purpose
[21] Rowlands v New South Wales (2009) 74 NSWLR 715
[22] BC Cairns, Australian Civil Procedure, (2014), at [13.270]
Section 139 of the Legislation Act 2001 provides that in working out the meaning of an Act, “the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation”. The Firearms Act is a law “to provide for the regulation, control and registration of firearms”. Section 5 of the Act sets out the principles and objects of the Act. The underlying principles include importantly that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety (section 5(1)(a)) and to improve public safety by imposing strict controls on the possession and use of firearms (section 5(1)(b)(i)). The objects of this Act are to establish an integrated licensing and registration scheme for all firearms (section 5(2)(b)) and to provide strict requirements that must be satisfied in relation to the licensing of firearms (section 5(2)(d)). These principles and objects disclose an intention to allow firearm ownership and use, subject to strict requirements and the overriding need of public safety.
These strict requirements principally involve the requirements for obtaining a firearms licence (Part 7) and permits to acquire firearms (Part 10). As noted above, an important aspect of the regime is that the Registrar in deciding an individual’s suitability in relation to an application under the Act must consider whether they believe on reasonable grounds that, because of the individual’s physical or mental health, the individual may not handle firearms responsibly.
The Act generally seeks to balance the interests of those seeking a firearms licence and public safety. This balance is reflected in the clearly and precisely specified obligations and powers in the Act. None of the other regulatory powers in the Act approach requiring an applicant to undergo a mental health assessment.
There is no indication that the purpose of section 56 is to enable the Registrar to require an applicant to undergo a mental health assessment. The provision began as clause 19 of the Firearms Bill 1996, and section 20 of the original Act. The Explanatory Statement stated in relation to clause 19 simply that the “Registrar can issue a notice requiring further information from an applicant and requiring the firearm to be produced to the Registrar for inspection”.
It might be argued that implying a power into section 56 to require a person to undergo a mental health assessment may strengthen the purpose of ensuring public safety by a strict regulatory regime. But in my view the Act’s specific terms provide for the relevant balance between the applicant’s rights and public safety, and there is no basis for implying expansive or additional compulsive powers.
Operation of Mental Health Act
In the ACT, the process of requiring a person to undergo a mental health examination is specifically dealt with in the Mental Health Act 2015 (Mental Health Act). Chapter 4 of that Act deals with “assessment orders” (section 37) and “removal orders” to conduct such assessments (section 43). That Act requires significant procedures in relation to such orders, and significant requirements to be met before such an order can be made (section 37), reflecting the impact of such orders on the person concerned. Such specific statutory provisions suggest that section 56 of the Firearms Act does not allow the procedures and requirements to be bypassed.
Principle of legality
Further, in interpreting the reach of section 56, the ‘principle of legality’ applies and it involves a presumption that the legislature does not intend to interfere with common law rights and freedoms except by clear and unequivocal language for which it may be accountable to the electorate. Chief Justice French has stated that the “principle requires that statutes be construed, where constructional choices are open, to avoid or minimise their encroachment upon rights and freedoms at common law”.[23] The presumption would include that Parliament does not intend to infringe personal liberty, including by requiring a medical examination without consent.[24] There is a constructional choice as to the breadth of section 56, and the principle of legality suggests that given the absence of clear and unequivocal language it should not be read as extending to requiring submission to a mental health examination without consent.
[23] Momcilovic v Queen (2011) 245 CLR 1 at [43]; see also Potter v Minahan (1908) 7 CLR 277, O’Connor J at 304
[24] R v B [1995] 2 NZLR 172; Secretary of Department Health & Community Services v JWB (Marion’a case) (1992) 175 CLR 281; noting that these cases involved physical medical examination and treatment, but it is likely that the same principles apply to mental examination and treatment
The factors set out in paragraphs [29]-[43] are sufficient to reach the conclusion that section 56(2) does not extend to enabling the Registrar or the Tribunal to require an applicant to obtain a mental health assessment.
Human Rights Act
But one further issue should be noted. Section 30 of the Human Rights Act 2004 (Human Rights Act) provides that: “So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights”. There are a number of human rights specified by the Act which are relevant here, and principally, section 10(2) provides: “No-one may be subjected to medical or scientific experimentation or treatment without his or her free consent.” To apply sections 30 and 10(2) of the Human Rights Act to section 56(2) of the Firearms Act raises issues of some complexity.[25] Further these issues were not raised in any detail in the hearing on the interim application or the substantive application. Therefore it is not appropriate or fair to the Registrar to resolve them in this decision. But the following comments are made in relation to this issue.
[25] See R v Fearnside (2009) ACTLR 25, esp at [89] and [97]-[98]; Re Islam (2010) 4 ACTLR 235, esp at [236]; Momcilovic v Queen (2011) 245 CLR 1; Thomson v ACT Planning and Land Authority [2009] ACAT 38, esp at [38]
The reference to ‘medical treatment’ in section 10(2) of the Human Rights Act is broader than the right provided in article 7 of the International Covenant on Civil and Political Rights which is limited to a prohibition on ‘medical experimentation’. But similarly to section 10(2), section 11 of the New Zealand Bill of Rights Act 1990 (NZ) provides that: “Everyone has the right to refuse to undergo any medical treatment”. And section 10 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) provides: “A person must not be … (c) subjected to medical or scientific experimentation or treatment without his or her full, free and informed consent”.
There is an issue as to what amounts to ‘medical treatment’ in the context of this right in section 10(2) of the Human Rights Act. The Macquarie Dictionary Online gives one broad definition of treatment as: “an action or behaviour towards a person”. But there is also a narrower relevant definition: “the application of medicines, surgery, psychotherapy, etc., to a patient to cure a disease or condition: asthma treatment.” The requirement that a person undergo a mental health assessment would certainly be medical treatment in the broad definition of treatment, that is an action or behaviour toward the person. There are significant arguments that this is the appropriate meaning here. This is on the basis that the terms of the human rights set out in the Human Rights Act should be given a liberal and not technical or narrow construction.[26] It seems appropriate that the assessment and diagnosis of patients is treatment since it is part of the overall medical intervention and will often involve a significant invasion of personal interests; this is so even if the purpose of the assessment is not for curative reasons, but, for example, for regulatory or forensic reasons, like the taking of blood for paternity testing, alcohol testing for criminal offences and mental health assessments for licensing purposes. These are still medical procedures, even if their object is to obtain information, not as part of a curative process.[27] Further it would seem anomalous if the right in section 10(2) of the Human Rights Act were limited to medical treatment which seeks to cure the person, but leaves treatment for other reasons, or indeed which seeks to do the person harm, unprotected. For these reasons it would seem that medical treatment in section 10(2) includes a mental health assessment for firearms licensing purposes. But I note that there is an arguable narrower view that medical treatment only includes actions which seek to cure a person, and that on this view a procedure simply to collect evidence does not amount to medical treatment and is outside the operation of section 10(2).[28]
[26] Waters v Public Transport Corp (1991) 173 CLR 349, Brennan J at 372
[27] Paul Rishworth, Grant Huscroft, Scott Optican and Richard Mahoney, The New Zealand Bill of Rights (2003), pages 256-257
[28] Andrew Butler and Petra Butler, The New Zealand Bill of Rights Act: A Commentary (2005), [11.8.4]-[11.8.6].
The application of section 30 of the Human Rights Act has been held to raise some difficult issues, but generally the first stage involves identifying the meanings of the relevant provision, in this case section 56(2) of the Firearms Act, that are available under the ordinary principles of statutory interpretation (which may be followed, if necessary, by a stage having regard to section 28, which goes to whether a limit on a human right is reasonable).[29] As discussed above, in my view the application of the ordinary principles of statutory interpretation support a conclusion that section 56(2) does not extend to requiring an applicant to undergo a mental health assessment without their consent. This interpretation is compatible with section 10(2) of the Human Rights Act. The alternative, but not preferred, interpretation is that section 56(2) does extend to requiring an applicant to undergo a mental health assessment without their consent; there would be arguments that this interpretation was not compatible with the broad view of section 10(2) of the Human Rights Act. It has been suggested that section 30 of the Human Rights should not be used at this first stage of the interpretative process, that is before regard is had to section 28.[30] I do not think this is correct, and in my view section 30 can be used as part of, and to confirm the preferred view reached under, the application of the ordinary principles of statutory interpretation.[31] On this basis section 30 could operate to provide further support for preferring the view that section 56(2) does not extend to requiring an applicant to undergo a mental health assessment without their consent.
[29] R v Fearnside (2009) ACTLR 25 at [97]-[98]; Re Islam (2010) 4 ACTLR 235 at [236]; Momcilovic v Queen (2011) 245 CLR 1
[30] R v Fearnside (2009) ACTLR 25 at [93]. Justice Besanko’s acceptance of this position at [94] is in my view limited by the further comments in [94], and by the discussion and acceptance of the formulation in R v Hansen [2007] 3 NZLR 1 which is discussed by Justice Besanko at [95]-[98]
[31] R v Hansen [2007] 3 NZLR 1 at [89] and [92]; which is quoted with approval in R v Fearnside (2009) ACTLR 25 at [97]-[98]; Re Islam (2010) 4 ACTLR 235 at [141], [199], [206], [232]-[236]. The comments in Thomson v ACT Planning and Land Authority [2009] ACAT 38 at [36]-[38] adopt the approach of Justice Besanko in R v Fearnside, and in my view should be read as limited by the terms of the discussion in that case, and not as accepting that section 30 cannot be used at the first stage of the process, that is the application of ordinary principles of statutory interpretation
Given the preferred meaning in relation to section 56(2), it would be unlikely to be necessary to consider section 28 of the Human Rights Act, which goes to whether a limit on a human right is reasonable, as part of the interpretative process under section 30. Generally therefore it seems possible that sections 10(2) and 30 of the Human Rights Act support the conclusion as to the operation of section 56(2) of the Firearms Act set out at paragraph [44] above. But in the absence of full argument, no final view is reached on this issue. It is noted that it is very unlikely that the operation of the Human Rights Act would bring into question the application of the ordinary principles of statutory interpretation set out above.
For completeness, it is also noted that section 12 of the Human Rights Act provides that everyone has the right not to have his or her privacy interfered with unlawfully or arbitrarily, and that section 40B(1) of the Human Rights Act provides that it is unlawful for a public authority (a) to act in a way that is incompatible with a human right; or (b) in making a decision, to fail to give proper consideration to a relevant human right.
Summary of conclusions on Ground 1
In summary, in my view section 56 does not extend to require a person to undergo a mental health assessment without their consent. I reach this view on the basis of the text, context and purpose of the provisions in the Firearms Act, the terms of the Mental Health Act and the principle of legality. Without finally deciding this issue, it seems possible that and sections 30 and 10(2) of the Human Rights Act also provide support for this view, and very unlikely that they would bring it into question.
On this basis section 56 does not enable the Registrar to require Mr P to undergo a mental health assessment. Also, the Tribunal cannot order such an examination using its general powers under the ACAT Act. As I noted in the oral reasons in relation to the interim application, even if there was power to do so, I would not have exercised this power for discretionary reasons. Further, the failure to attend such an examination cannot be used as a basis for refusing to consider the application, or for refusing the application. The Tribunal in its making of a substitute decision also cannot do so.
Ground 2: Belief that because of Mr P’s mental health he may not handle firearms responsibly
A second basis on which the Registrar refused the application by Mr P for a firearms licence was a belief on reasonable grounds that because of his mental health he may not handle firearms responsibly. This was a finding in relation to section 18(1)(a), which is relevant to section 17 and then section 58(1)(b) of the Firearms Act,[32] and the respondent maintained this position in these proceedings.[33]
Registrar’s evidence
[32] See paragraphs [20]-[22] above
[33] Respondent’s statement of facts and contentions at [32]
There were a number of factual bases for the Registrar’s position. First, the Registrar obtained and tendered in these proceedings patient records concerning Mr P from the Canberra Hospital.[34] These show that Mr P was treated by a period of hospitalisation for a mental illness described as a “delusional disorder” in May to June 2010. The content of the delusion was said in the records to include a “complex persecutory delusional system about the police force and departments of the public service interfering with his career prospects, assaulting him on numerous occasions, infiltrating his emails, planning to murder him.” It was said that he “has high risk of acting out on his believe and harm others (sic)”.[35] There are reports that he was making threats to kill the AFP Commissioner.[36] It appears that a psychiatric treatment order was made under the Mental Health Act in relation to him, that Mr P improved with the treatment provided under the order, and that he was discharged from hospital on 4 June 2010.[37]
[34] Exhibit R3
[35] Exhibit R3, report dated 14 May 2010
[36] Exhibit R3, file note dated 12 May 2010
[37] Exhibit R3, file note dated 4 June 2010
A report of about June 2015 stated that there was a remission of psychotic symptoms. It was indicated that there had been a reduction in medication, and a recommendation for further reductions and ceasing.[38]
[38] Exhibit R3, report which was faxed on 26 June 2015
Second, the Registrar also provided a recent report by Dr John Saboisky, psychiatrist, dated 29 August 2017. Dr Saboisky did not examine Mr P. However he was provided with a wide range of documents, including the T documents, exhibit R1, some of the material in relation to Mr P’s mental health obtained from the Hospital, and some correspondence with Mr P.
In his report Dr Saboisky noted that Mr P “was admitted into psychiatric care initially because he threatened to kill the Police Commissioner. This occurred on the background of prolonged complex persecutory delusions including ideas that the police force and the departments of the public service were interfering with his career prospects resulting in police assaulting him … and planning to murder him”. It is noted that his anti-psychotic medication ceased in July 2015.[39]
[39] Exhibit R2, page 1
Dr Saboisky stated that there was no information regarding Mr P’s current treatment, “but that given the content of his written submissions his mental health has again deteriorated”. He stated that “the type of illness diagnosed in 2010 has an extremely high relapse rate if patients are inadequately medicated”. He noted that there is nothing in the documents provided to suggest that Mr P was having appropriate psychiatric care.[40]
[40] Exhibit R2, page 2
Dr Saboisky noted that Mr P has a history of threatening and violent behaviour, and that apparently he continues to behave in a threatening manner and to be delusional. He referred in particular to the email of 7 March 2017 which is discussed below at paragraph [62]. He stated that it is “inevitable that in the absence of appropriate psychiatric care that he will become seriously delusional again”, and that the “best predictor of future violence in individuals with a delusional disorder is their past history.” Dr Saboisky concluded by stating that Mr P’s application to own and use firearms is not supported on psychiatric grounds.[41]
[41] Exhibit R2, page 2
Dr Saboisky was made available for cross-examination. Mr P did not ask any questions about the report and its conclusions.[42]
[42] Transcript of proceedings on 11 September 2017, pages 81-82
Third, the Registrar also relied on documents and correspondence provided by Mr P in this matter. One was a letter dated 5 February 2017.[43] Another was an extended letter dated 27 March 2017[44] which in part concerned “the unlawful serving of my duplicated legal personal information/documents by hidden agenda and concealment” in February 2017. Mr P wrote that he “construed this episode as a deliberate act of political aggression to cause me mental and physical harm injury and torture construed this is in breach of the rule of law protecting and covering personal information privacy rights and human rights”. He further wrote: “I construed this callous act of political aggression to be some form of institutional racism with incitement of hatred with criminal conspiracy …There is a direct link here to the oral treatment made to me in my 2004 industrial relations matters as issued before the HCA … I construed that the Chief Justice did breach the rule of law covering fraud before the court. The HCA has been warned about this and other issues …”. There is reference to “interlinked criminal conspiracies”; “covert surveillance of my movements”; “unlawful interfering in my … court proceedings”; “collusion with status quo agents working and concealed within the Commonwealth …”; “criminal political conspiracy to commission a violent criminal assault against my life”; “inhuman criminal bashings, physical assaults and malicious prosecutions and forced incarcerations”; and “obstruction of justice as per his hidden agenda and fabrication of legal documents by concealment and postal fraud” in relation to his firearms application.
[43] Exhibit R1, T documents, page T209
[44] Exhibit R1, T documents, at page T 225
An email of 7 March 2017 also deals with the receipt of a document on 25 January 2017, and stated that the document is: “some form of postal mail fraud and reported this cunning trap to the Cth DPP. It appears to be some form of hidden agenda to blackmail me by entrapment”.[45]
[45] Exhibit R1, T documents, page T224
The respondent also relied on a letter dated 19 July 2017[46] in which Mr P sought a response to an earlier letter and stated: “Please re-check your details and respond accordingly or face the consequences. You may lose your job and more severe. This is via contract construction law etc.”
[46] Exhibit R1, T documents, page T220 at page T221
Further, documentation was provided in relation to an event on 31 May 2017 which Mr P argued was a “road rage hit run / murder attempts instigated against my life”. He alleged similar incidents happened with an AFP assault in 2009 and road rage in 2005. [47] A large number of emails from Mr P which raise these and other issues were compiled by the respondent for Mr P and in evidence as exhibit A1. In oral evidence before the Tribunal, Mr P also raised a range of these issues.[48]
[47] Exhibit R8
[48] Transcript of hearing on 11 September 2017, including pages 59, 62-63, 65, 69
In summary, the Registrar argued that the evidence showed that the mental health condition with which Mr P was diagnosed with in 2010 had returned, and that a person with that condition who believed he is under attack for his life may take action to defend himself.[49] This evidence it was said provided reasonable grounds for believing that because of Mr P’s mental health, he may not handle firearms responsibly.
Mr P’s evidence
[49] Transcript of proceedings on 11 September 2017, page 64
The applicant provided a wide range of material in relation to this matter. Some of this material related to his work and education history. He worked in a range of roles concerning gardens, horticulture and parks from the 1970s to 1990s. He obtained a range of qualifications including a degree in landscape architecture. He worked in a range of other positions in the 1990s. He provided a range of good references in relation to this work from this time, including a strong reference from the Director of the Australian National Botanic Gardens as to Mr Ps design of three major projects for the Gardens.[50]
[50] Exhibit A2, pages 4-5
In about 1997 it appears that Mr P had difficulties with his employment; he stated that “I suddenly walk straight into a black tunnel (blacklisted from all professional employment promotions 1997 to 2017)”.[51] Some of Mr P’s evidence and documents deal with his employment situation since 1997 and its causes, and at times he appeared to make claims in these Tribunal proceedings in relation to this past employment situation.[52] These are not issues which the Tribunal can directly consider or remedy.
[51] Exhibit A2, page 1, email from Mr P
[52] Exhibit A10, email of 7 June 2017
One matter which Mr P specifically noted was that while he was at one stage convicted of a firearms offence in relation to storage of a rifle, the Supreme Court allowed an appeal from this and made a non-conviction order and a 12 month good behaviour order. The Court noted Mr P’s previous good record, and that no actual misuse of guns was alleged.[53]
[53] Exhibit A11 and Exhibit A12
Mr P relied in particular on a report by Professor Scott Henderson dated 9 August 2005.[54] This set out some of Mr Ps employment history, noted that “his employers had treated him unfairly”, that he was dismissed by a process Mr P termed “constructive termination”, and subsequent litigation. He noted Mr P had no hallucinations, delusional perception or other psychotic symptoms. He concluded that Mr P “is not mentally dysfunctional and is not mentally ill’ and there were no clinical features that would justify a diagnosis. Instead Mr P has reacted with intensity to adverse experiences. The report indicated that there is no need for treatment. It concluded with the following: “Concerning the probability of his being now or in the future a danger to others, I do not consider myself sufficiently experienced to estimate this. I do believe that it would be unwise for him to have access to weapons, but this is not a judgment made by me as a psychiatrist”. It is not completely clear what Professor Henderson meant by this last comment, but it is not a strong endorsement that Mr P is a suitable person to hold a firearms licence.
[54] Exhibit A15
A further report by Dr Henderson dated 6 January 2011 was provided in the context of expiration of a mental health order concerning Mr P.[55] This noted that Mr P continued to believe he has been wronged by diverse authorities, “including his employers, the Police, ASIO, my colleagues and myself”, but he had kept all his appointments and continued to accept a fortnightly depot injection. It concluded that he currently presents no danger to himself and others and that Dr Henderson could find no grounds to recommend an extension of the mental health order.
[55] Exhibit A15
Mr P also provided a report by Dr Azra Sabir, Psychiatry Registrar, of the Tuggeranong Mental Health Team dated 10 March 2016.[56] This report noted that Mr P has been receiving care for a delusional disorder for the last few years, but that he had been off all his antipsychotic medications for over eight months now and was doing really well. He was not experiencing any psychotic symptoms and resided with his brother. The report noted that Mr P had no formal thought disorder; no thoughts of self-harm; no thoughts of harm to anyone else; nil delusions; no unusual preoccupations. Under the heading “IMPRESSION” it is stated that: “Stable from mental health point of view. Psychotic symptoms are currently in remission. Nil acute specialist intervention required”. [57]
[56] Exhibit A13
[57] Exhibit A13
Mr P did not provide any specialist evidence in relation to his current mental health condition. At some points in his evidence he indicated that: “I have never had a mental health problem”, but he admitted he had had severe mental depression. Asked whether he would take medication if it were now prescribed he said: “I don’t have any mental problems at the moments. … All I’m fighting for is my rights …”[58]
[58] Transcript of proceedings on 11 September 2017, pages 70-72
Mr P indicated that in relation to his current mental health condition by “case law research, I believe it’s up to my local GP”.[59] In support of this view Mr P provided an article entitled “Firearms, mental illness, dementia and the clinician” from The Medical Journal of Australia.[60] It is difficult to see how this article supports Mr P’s position. The article stated that in all jurisdictions a firearms licence may be denied if there is evidence of mental or physical conditions rendering the person unsuitable to possess, own or use a firearm. It stated medical history must be disclosed by individuals applying for a licence and that health professionals should notify the police when they believe that people may be at risk to their own or public safety if they possess a firearm; it is noted that owners may request a “doctor’s opinion” whether they may continue to hold a licence. It is true that a doctor’s opinion in this context suggests that of a local general practitioner, but there is no suggestion that expert psychiatric opinions are not appropriate or relevant. The article discussed the advantages of a “capacity assessment” which judges the ability of the individual to understand the nature, effects and risks of firearms ownership. While noting the need to balance individual rights and public safety, the article argued that excluding anyone with a mental illness from gun ownership is unjust and unsupported by evidence, and that a more nuanced approach might rely on a capacity assessment combined with consideration of risk factors such as the presence or paranoid or suicidal ideation and of cognitive impairment. As noted, the evidence is that Mr P does have at times paranoid ideation. At any rate Mr P did not provide any evidence from his general practitioner.
[59] Transcript of proceedings on 11 September 2017, page 45
[60] Exhibit A16, Anne P F Wand, Carmelle Peisah, Julie-Anne Strukovski and Henry Brodaty, “Firearms, mental illness, dementia and the clinician”, (2014) 201(11) The Medical Journal of Australia, 674-678
In addition to the significant materials provided to the Tribunal, Mr P gave oral evidence. He said he was a sporting shooter from about the age of 16 to 50. After his employment problems he went into severe mental depression, binge drinking and a spiral of decline.[61] As noted at paragraph [72] above, Mr P admitted that he had a period of severe mental depression but had “pulled away from there and I’m going back to being stable and normal”.[62] He stated that he currently receives no treatment for a mental illness.[63]
[61] Transcript of proceedings on 11 September 2017, pages 44-45
[62] Transcript of proceedings on 11 September 2017, page 71
[63] Transcript of proceedings on 11 September 2017, page 66; see also page 72
He did provide a range of personal references. One from an officer of an archery organisation stated that Mr P had been a member for a number of years, abided by all the rules and code of conduct, was not known to have broken any laws and was of good character.[64] Other references from archers who participated with Mr P in the sport stated that they had never been in any form of trouble in relation to archery.[65] A reference from a person who went hunting with Mr P stated that he was “a fellow hunter who possesses enormous respect for his attention to the safety procedures relating to the handling of firearms” and “is extremely committed to ensuring that all safety procedures are strictly adhered to”.[66] Others confirmed his recent good behaviour.[67]
[64] Exhibit A3, dated 21 May 2017
[65] Exhibit A4, dated 20 May 2017; exhibit A7 dated 26 May 2017
[66] Exhibit A4, dated 10 May 2017
[67] Exhibit A5, dated 22 May 2017; exhibit A8, dated 28 May 2017
Mr P’s brother gave a written reference received by the Tribunal on about 5 June 2017,[68] which was confirmed by oral evidence at the Tribunal hearing. This provided honest and moving evidence in relation to Mr P’s life.
[68] Exhibit A9
Mr P’s brother’s statement referred to Mr P’s exceptional ability in relation to landscape design, but that “for the past two decades I have witnessed my brother … tormented by severe relentless stress.” This stress was said to result from an unfair, bullying, manipulative and possibly unlawful enforcement of redundancy at his work. Mr P had been trying for the last 20 years to obtain justice for this treatment. Mr P’s brother stated that he “developed uncharacteristic behaviour from the torment of stress and influence of alcohol, resulting in unsociable and disorderly conduct on numerous occasions resulting in police apprehension”. He confirmed that Mr P was for a period the subject of a mental health order, but noted he thought it was a “harsh, intrusive abuse of a person’s well-being to be forcefully administered with a drug which was known to have side effects …”.[69]
[69] Exhibit A9 at [1]-[11]
Mr P’s brother stated that he has “lived with …[Mr P] for the past three years, during which time it has been very assuring and comforting to see the typical characteristics of his nature stabilize”. Mr P has regained control of his alcohol intake. He has retained a clean record with police “for which he should be admired and not penalised”. He stated that Mr P has been cleared by ACT Mental Health, requiring no further monitoring or treatment. He stated Mr P has never inflicted violence on any person. His lapse into alcohol abuse had been overcome. He is once again demonstrating his total commitment to abide by the law by applying for the licence.[70]
[70] Exhibit A9, at [10]-[14]
Mr P’s brother also noted that Mr P had always been an avid outdoor sporting camper, fisherman and recreational shooter. From the 1970s to the 1990s these activities had been a major part of his lifestyle and important to his holistic well-being. He noted that Mr P “ … needs the opportunity to regain his lost self-worth by sharing his knowledge of camping, fishing, rifle target and sporting shooting with his nephews”. He has legally passed on his firearms to them, but wishes to join in activities with them.[71]
[71] Exhibit A9 at [15]-[17]
Mr P’s brother confirmed this statement in his oral evidence. He gave oral evidence that in his view Mr P has never been violent or hurt anyone, even when he lost his job, started drinking and was a public nuisance;[72] and that he would trust Mr P with a gun more than he would trust a lot of his friends.[73] Under cross-examination Mr P’s brother indicated that he had not been shooting with Mr P for 40 years; that Mr P is not on medication at the moment because he was cleared by the mental health people; that he was aware of the side effects of the mental health medication and kept asking during the treatment whether it would be possible to reduce this; and that over the last three years Mr P has been exactly the same as when he was on the drugs.[74]
Discussion of Ground 2
[72] Transcript of proceedings on 11 September 2017, page 34
[73] Transcript of proceedings on 11 September 2017, page 35
[74] Transcript of proceedings on 11 September 2017, pages 35-36
The relevant discretionary criteria under section 18(1)(a) is whether the Registrar, at this stage the Tribunal, believes on reasonable grounds that, because of the Mr P’s mental health, he may not handle firearms responsibly.[75]
[75] See above at paragraphs [20]-[22]
The evidence before the Tribunal suggests that Mr P does have a mental illness. This mental illness has been severe at some times in the past, and required significant treatment. The evidence suggests that it was particularly severe in 2010. At other times the mental illness has been, at least in part, in remission.
The evidence before the Tribunal also suggests that events in the past in relation to Mr P’s employment have caused him significant stress and concern. Of course Mr P is entitled to pursue his complaints and claims in this regard. But these events seem to play a significant role in Mr P’s mental illness. Importantly these events and Mr P’s mental illness at times combine to make him say things which suggest he may act out inappropriately on the basis of them. As noted a report of May 2010 stated that Mr P has when sick a “complex persecutory delusional system about the police force and departments of the public service interfering with his career prospects, assaulting him on numerous occasions, infiltrating his emails, planning to murder him.” It was said that at that time he had a “high risk of acting out on his believe and harm others (sic)”.[76]
[76] Exhibit R3, report dated 14 May 2010
Mr P did refer to evidence, in particular of Professor Scott Henderson, that at times he had no hallucinations, delusional perception or other psychotic symptoms. The report by Dr Azra Sabir in 2016.[77] noted that Mr P had been receiving care for a delusional disorder for the last few years, but he had been off all his antipsychotic medications for over eight months and was doing really well. But the evidence is that at other times Mr P had a serious mental illness. Mr P admitted that he currently was receiving no treatment for a mental illness.[78]
[77] Exhibit A13
[78] Transcript of proceedings on 11 September 2017, page 66; see also page 72
Further the current medical evidence of Dr Saboisky is that Mr P’s mental health has again deteriorated. Dr Saboisky stated that “the type of illness diagnosed in 2010 has an extremely high relapse rate if patients are inadequately medicated”. Dr Saboisky noted that Mr P has a history of threatening and violent behaviour, and that apparently he continues to behave in a threatening manner and to be delusional. A range of emails presented to the Tribunal provide a basis for this conclusion.[79]
[79] See above paragraphs [61]-[64]
There is no doubt that Mr P believes he was treated very badly by his employer and others. There is also no doubt that he has made a significant and highly commendable effort to recover from his periods of poor behaviour and of severe mental illness. He was an impressive witness and advocate in these proceedings. He also clearly has very supportive family and friends. It seems that rifle target and sporting shooting were important to Mr P at one stage of his life, and that a return to them may assist him to regain his lost self-worth. But the Tribunal also notes that failure to obtain a firearms licence would not prevent him from carrying out a range of other related activities such as camping, fishing, and archery with his relatives and friends. It is also true that mental illness medication can have side effects, but the Tribunal notes that this is a matter which can be managed to a large extent by treating doctors.[80]
[80] See the evidence of Dr Saboisky in the transcript of proceedings on 11 September 2017, pages 80-81
But Mr P provided no current mental health assessment. On this basis the Tribunal is left with the assessments which the Registrar has provided including the recent report of Dr Saboisky. As discussed, the Tribunal does not think that the Registrar or the Tribunal can require Mr P to undergo a mental health assessment. However, if he does not do so, then the Tribunal is left with the evidence provided by the Registrar.
Dr Saboisky concluded by stating that Mr P’s application to own and use firearms is not supported on psychiatric grounds”.[81] Even Professor Henderson noted in his earlier report he thought it unwise for him to have access to weapons.[82] Especially when unwell, Mr P has a complex persecutory delusional system which he may act on the basis of, even though such action may in his view be in self-defence. The evidence suggests Mr P is unwell at this time.
[81] Exhibit A15
On the basis of the evidence before it the Tribunal is therefore of the view that because of the Mr P’s mental health he may not handle firearms responsibly. There is no requirement that the Tribunal be satisfied that he will not handle firearms responsibly, only that this is a possibility. I recognise that this is a harsh standard, but it is one which reflects the underlying principle of the Act that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety (section 5(1)(a)). In the Tribunal’s view this discretionary criteria has been met. In making the decision whether to grant a licence, the Tribunal must consider this discretionary criteria in deciding whether Mr P is a suitable applicant. Section 58(1) provides that the Tribunal must refuse to issue an adult firearms licence unless satisfied on reasonable grounds that the applicant is suitable. The Tribunal is not so satisfied that Mr P is a suitable applicant because of issues in relation to his mental health, and therefore refuses the licence on this ground.
A similar conclusion was reached in the Victorian Civil and Administrative Tribunal decision of YCO v Firearms Appeal Committee [2008] VCAT 966.[83] There the applicant noted that she had no criminal record, no psychiatric record and had held a firearms licence for 12 years without any infringements (at [17]). But there was evidence she believed that the police had obstructed her application, and that she had longstanding and ongoing concerns with her neighbours, and alleged that she had been shot at by them on various occasions and actually hit on others (at [21]). The Victorian Tribunal accepted that the applicant had these beliefs, but that they raised concerns as to the state of her mental health which had not been fully explored, though the applicant regarded any potential assessment as a further assault (at [32]). Because the applicant perceived she was under attack, there was a risk that she would act in self-defence as she saw it, and the Tribunal found she was not a fit and proper person to be issued with a licence (at [34]-[35]).
Discrimination issues
[83] See also Beaman v Commissioner of Police, NSW Police Force [2017] NSWCATAD 191
Mr P argued that the refusal of the licence discriminated against him on the basis of his mental illness. It is necessary to look at the law in the ACT to decide whether this is relevant to decision-making under the Firearms Act. No complaint under the Discrimination Act 1991 (Discrimination Act) and the Human Rights Commission Act 2005 is before the Tribunal. It is true that the Discrimination Act applies to discrimination on the ground of disability (section 7(1)(e)) which is broadly defined so as to include a mental illness in section 5AA. But in the absence of a formal complaint it is not possible for the Tribunal to decide whether the decision is unlawful under the Discrimination Act. The Tribunal notes that section 18(1)(a) of the Firearms Act makes relevant to the licensing decision the applicant’s physical or mental health. In appropriate circumstances this allows the decision to refuse a licence to be based on the applicant’s mental health. Similarly, information which indicates that it would be contrary to the public interest for applicant to have access to a firearm is also relevant to the decision under section 18(1)(c), and the applicant’s mental health may in appropriate circumstances be relevant to this public interest criteria (see ground 3). It is noted that section 30 of the Discrimination Act provides that the Act does not make unlawful anything done necessarily for the purposes of complying with a requirement of a Territory law, and section 56 of the Discrimination Act provides that Part 3 of the Act does not make unlawful discrimination against a person on the ground of disability if the discrimination is necessary and reasonable to protect public health. It is possible that the licensing decision in this case will fall within the exceptions in sections 30 and 56 of the Discrimination Act. Mr P also raised the Disability Discrimination Act 1992 (Cth),[84] but similar comments can be made about the operation of this legislation, and at any rate this the Tribunal cannot consider a complaint under it.
[84] Transcript of proceedings on 11 September 2017, page 88
Mr P particularly relied on an International Labour Organisation document entitled “Types of discriminatory writing”.[85] He argued some of the letters from the AFP demonstrated discriminatory writing.[86] This document does say that in relation to disability and chronic illness, the “chief trap to avoid is emphasizing the disability or chronic illness rather than the person”. This document does not assist with Mr P’s claim in the Tribunal.
Ground 3: Information indicates that contrary to public interest
[85] Exhibit A 17; transcript of proceedings on 11 September 2017, page 46
[86] Transcript of proceedings on 11 September 2017, page 47
A third ground for refusing the application was a “belief on reasonable grounds that given your mental history (outlined at annexure A) that under section 18(1)(c) information held by a law enforcement agency (AFP) in relation to you indicates that it would be contrary to the public interest for you to have access to a firearm.” Annexure A to the notice of decision was a summary of information held by the AFP relevant to the application and prepared on 22 March 2017.[87] This sets out 19 incidents. Sixteen of these occurred in the period 2004-2010; some of these suggest that when unwell, Mr P can act inappropriately and aggressively. The most recent events were the correspondence from Mr P of 5 February 2017, 19 February 2017 and 7 March 2017 (some of which are discussed above at [61] and [62]).
[87] Exhibit R1, T documents page T119
In addition there is now the medical evidence before this Tribunal. As with the second ground, this evidence indicates that Mr P does have a mental illness. This mental illness and events in Mr P’s past at times combine to make him say things which suggest he may act out inappropriately on the basis of them.
The relevant discretionary criteria is that the Tribunal believes on reasonable grounds that information held by a law enforcement agency in relation to Mr P indicates that it would be contrary to the public interest for him to have access to a firearm. On the basis of the evidence before the Tribunal this ground is made out. In making the decision whether to grant a licence, the Tribunal must consider this discretionary criteria in deciding whether Mr P is a suitable applicant. Section 58(1) provides that the Tribunal must refuse to issue an adult firearms licence unless satisfied on reasonable grounds that the applicant is suitable. The Tribunal is not so satisfied that Mr P is a suitable applicant because of the information held by the AFP and presented to the Tribunal and therefore refuses the licence on this ground.
Conclusion
As noted above, section 58(1) of the Firearms Act provides that the Registrar, now the Tribunal, must refuse to issue an adult firearms licence unless satisfied on reasonable grounds: “(b) that the applicant is suitable”. As to the requirement that the applicant be suitable, section 17 states that in making the decision, the Registrar, now Tribunal, must consider whether because of Mr P’s mental health, he may not handle firearms responsibly (section 18(1)(a) (ground two)) and whether information held by the AFP in relation to Mr P indicates that it would be contrary to the public interest for him to have access to a firearm (section 18(1)(c) (ground three)). The terms and structure of these provisions, and the use of the phrase ‘discretionary criteria’, suggest that even if grounds two and three are made out, there may be some discretion in the decision-maker to find an individual suitable. Even if this is so, in this case the Tribunal is of the view that the nature of the concerns means that it is not satisfied that Mr P is suitable on these grounds. Because the Tribunal is not satisfied that Mr P is suitable, under section 58(1) the Tribunal must refuse the licence. The Tribunal therefore makes a substitute decision to refuse Mr P’s application for a firearms licence.
………………………………..
Senior Member R Orr QC
HEARING DETAILS
FILE NUMBER: | AT 22/17 |
PARTIES, APPLICANT: | P |
PARTIES, RESPONDENT: | Registrar of Firearms |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | Dr Jarvis |
SOLICITORS FOR APPLICANT | N/A |
SOLICITORS FOR RESPONDENT | ACT Government Solicitor |
TRIBUNAL MEMBERS: | Senior Member R Orr QC |
DATES OF HEARING: | 11 September 2017 |
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