Q v Registrar of Firearms (Administrative Review)
[2015] ACAT 84
•8 December 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
Q v REGISTRAR OF FIREARMS (Administrative Review) [2015] ACAT 84
AT 39 of 2015
Catchwords: ADMINISTRATIVE REVIEW- firearms licences – whether applicant had ‘good reasons’ to acquire further firearms – whether the number of firearms already held is relevant to applications for new licences – whether public safety factors override ‘good reasons’ when applying for new firearm licences
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 68
Firearms Act 1996 ss 5, 6, 7, 37, 40, 42, 43, 61, 73, 143, 144, 145, 258, 260, sch 4
Firearms Regulation 2008 s 48
Legislation Act 2001 ss 6, 104, 127, 197
Cases cited:Aubrey v The Commissioner of Police, NSW [2005] NSWADT 266
George v Rockett (1990) 170 CLR 104
Hogan v Hinch (2011) 243 CLR 506
Macdonald v Commissioner of Police, NSW Police [2007] NSWADT 174
O’Sullivan v Farrer (1989) 168 CLR 210
Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531
Tolley v Commissioner of Police, NSW [2006] NSWADT 149
Yaghi v Commissioner of Police, NSW [2001] NSWADT 91
List of Texts/
Papers cited: Butler, Susan (ed), Macquarie Dictionary (online ed, at 24 November 2015)
Proffitt, Michael (ed), Oxford English Dictionary (online ed at 24 November 2015)
Tribunal: Mr R Orr QC – Senior Member (Presiding)
Ms M-T Daniel – Member
Date of Orders: 8 December 2015
Date of Reasons for Decision: 8 December 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL AT 15/39
BETWEEN:
Q
Applicant
AND:
REGISTRAR OF FIREARMS
Respondent
TRIBUNAL: Mr R Orr QC – Presiding Member
Ms M-T Daniel –Member
DATE: 8 December 2015
ORDER
The Tribunal orders that:
(a)The decisions to refuse Firearm Permit Application (FPA) No. A07301, FPA No. A07300 and FPA No. A07416 are set aside and remitted for reconsideration to the Registrar.
(b)The decision to place a condition on the licences of Q is set aside, and the Tribunal decides not to impose such a condition.
………………………………..
Ms M-T Daniel – Member
for and on behalf of the Tribunal
REASONS FOR DECISION
Q[1] holds a shooting licence and collectors licence under the Firearms Act 1996 (ACT) (Firearms Act). He has sought review of four decisions of the delegate of the Registrar of Firearms under that Act, namely:
(a)To place a condition on his licences under section 73(3) of the Firearms Act restricting the total number of firearms he can own to 77.
(b)To refuse Firearm Permit Application (FPA) No. A07301 under section 145 of the Firearms Act for a Winchester 1892 under his collectors licence.
(c)To refuse FPA No. A07300 for a second Winchester 1892 under his collectors licence.
(d)To refuse FPA No. A07416 for a Henry Model 4004 under his shooters licence.[2]
Summary of Tribunal decision
[1] Given the issues involved in these proceedings, a confidentiality order was made on 24 June 2015 which in part required the Applicant to be referred to as ‘Q’
[2] Exhibit T1, T documents pages 5-6, Application for review, which was amended at the hearing to specify these decisions. See also Applicant’s submissions paragraph 1
In relation to the three FPAs, the Registrar must refuse these unless satisfied on reasonable grounds that Q has a good reason for acquiring the firearms. Q has established a reason in relation to each permit which is congruent with his licences, but public safety considerations are also relevant to this decision, and must be taken into account in forming a view whether there is a good reason for acquiring. The permit decisions did not properly engage with the good reason requirement and consider whether there was a real or direct risk to public safety, and the Tribunal sets aside the rejection of the three FPAs.
While the Tribunal is of the view that the statutory storage requirements, and the additional measures implemented by Q insofar as they reflect the statutory storage requirements on licensed firearms dealers, would appropriately manage the public safety risk of theft, there has been no inspection of these measures by the Firearms Registry and therefore there is insufficient evidence of them before the Tribunal. The Tribunal declines to issue the permits itself, to allow for inspection of the storage arrangements and consideration of these in light of the public safety risk. The Registrar is to reconsider the applications taking public safety and all other relevant matters into account.
In relation to the condition imposed on the licences, the Registrar can impose such a condition where they believe on reasonable grounds that it is in the public interest. Public safety is a public interest and therefore relevant to this decision. The decision of the Registrar on this issue contains a number of errors and the Tribunal sets it aside. The Tribunal does not think there is a basis on the information before the Tribunal for imposing such a condition. Unlike the permits decisions, the Tribunal does not think it appropriate to remit the decision to the Registrar. The Tribunal is of the view that it is preferable to manage the number of firearms Q owns through permit decisions under section 145. The Tribunal substitutes a decision not to impose such a condition.
A. The decisions of the Registrar
Q was first granted an ACT firearms licence in 1981, and he owned about a dozen rifles under that licence. He sold the rifles and gave up the licence when he went overseas.[3] After his return, he was granted an adult firearms licence for sport or target shooting (commonly called a ‘shooting licence’) for category A and category B firearms in July 2009 (N 5270F). In answer to the question in the application form what is your genuine reason for having a firearms licence he responded: ‘target shooting. SSAA member.’[4] This licence was renewed on 15 July 2014 for 5 years. On 7 December 2012, Q was approved for category H firearms attached to his shooting licence. It was agreed that Q continued to satisfy the requirements for this licence.[5]
[3] Exhibit A1, statement of Q dated 15 July 2015, paragraph 9
[4] Exhibit T1, T documents, pages 732-739, Adult Firearm Licence Application. SSAA stands for Sporting Shooters Association of Australia
[5] Exhibit A1, Statement of Q dated 15 July 2015, paragraphs 3-7; Exhibit R1, statement of Detective Sergeant Noble dated 30 July 2015, paragraphs 18-21
Q applied for 33 permits to acquire firearms under his shooting licence, all of which were issued.[6] In the documentation before the Tribunal, and at the hearing, there was some confusion about the number of permits previously held under the shooting licence by Q, but this number was agreed by the parties at the hearing.
[6] Exhibit A1, statement of Q dated 15 July 2015, paragraphs 37 and 40. These FPAs are set out in Exhibit T1, T documents
On 8 April 2015 Q submitted FPA A07416 for a Henry Model 4004. In answer to the question what is your reason for requesting the permit he answered ‘club shooting’.[7] This FPA was in substantially the same form as the previous 33 FPAs. The FPA appears to have been approved, but then amended to be not approved, by Detective Sergeant Noble as delegate of the Registrar.[8]
[7] Exhibit T1, T documents, pages 301-308; Exhibit A1, statement of Q dated 15 July 2015, paragraph 59 and exhibit 10 to this statement, Permit to Acquire Firearm
[8] Exhibit T1, T documents, pages 301-308, see especially pages 301 and 307; Exhibit A1, statement of Q dated 15 July 2015, paragraph 59 and exhibit 10 to this statement, Permit to Acquire Firearm; Exhibit R1, statement of Detective Sergeant Noble dated 30 July 2015, paragraphs 4 and 38
Q was granted an adult firearms licence for collectors (commonly called a ‘collectors licence’) in March 2012 (N 5270).[9] In answer to the question in the application form as to what is your genuine reason for having a firearms licence, he responded: ‘firearms collection’. In answer to the request for the detail of the manufacturer and model of firearms he intended to collect, he stated: ‘longarms of the old west & recreations of them’.[10] Detective Sergeant Noble indicated that there were some issues in relation to the record keeping for this licence, namely whether Q articulated a basis for the collection, that members of the relevant club collect firearms of that kind, and that the application was supported by the club, but that these were not matters that he took into account in these decisions.[11] However as noted the application does set out the basis of the proposed collection; and it was signed by an officer of the relevant club; no other information was requested in the application form.
[9] Exhibit T1, T documents, pages 294-300, Collectors Firearm Licence Application
[10] Exhibit T1, T documents, pages 294 and 295, Collectors Firearm Licence Application
[11] Statement of Detective Sergeant Noble dated 30 July 2015, paragraph 22
Q applied for 46 permits under this collectors licence, all of which were issued.[12] Again, in the documentation before the Tribunal, and at the hearing, there was some confusion about the number of permits held under the collectors licence by Q, but this number was agreed by the parties at the hearing. It was agreed therefore that Q holds 33 shooters licence permits and 46 collectors licence permits, a total of 79, as set out in Exhibit A1, statement of Q dated 15 July 2015, paragraph 37.
[12] Exhibit A1, statement of Q dated 15 July 2015, paragraphs 37 and 41. These FPAs are set out in Exhibit T1, T documents
On 4 March 2015 Q submitted FPAs A07301 and A7300 for Winchester 1892s. In answer to the question what is your reason for requesting a permit, he wrote: ‘collection’ and ‘collector’.[13] Those FPAs were in substantially the same form as the previous 46 FPAs under the collectors licence.
[13] Exhibit T1, T documents pages 23-32, Permit to Acquire Firearm
In response to a telephone conversation on about 15 April 2015 in which it was suggested that the FPAs would not be approved, Q sent an email to the Firearms Registry which provided further information in relation to the applications. In summary terms this stated that he was a collector of lever actions for historical purposes; he had ‘one shootable 32-20 … and 14 non-shootable 32-20 collector guns’ including 10 Winchester Model 1892; that there are many different configurations for such guns; that looking at all the possible combinations of the Model 1892, even in just one calibre, there would be dozens of them; that he was interested in all the variations. In relation to the two applications for Winchester 1892s, he stated one was for a scrap gun to remove the sights and other pieces to transfer to an existing gun, and it would then be disposed of, that is sold. The other was for a variant of the Model 1892 which he did not have to be added to his collection.[14]
[14] Exhibit T1, T documents, page 12, email dated 15 April 2015
There is a subsequent email from Q dated 20 April 2015 to the Firearms Registry in which he stated that he recognised the importance of security; that his collection was large and growing and that ‘the police would legitimately have concerns about this’; and which set out the proposals to increase security to approximately that of firearms dealership, and exceed it in some respects.[15]
[15] Exhibit T1, T documents, page 10, email dated 20 April 2015
The FPAs were not approved, apparently by Detective Sergeant Noble as delegate of the Registrar.[16] A separate FPA A07405 was lodged in March 2015 in respect of a Winchester 1873 and approved on 2 April 2015.[17]
[16] Exhibit R1, statement of Detective Sergeant Noble dated 30 July 2015, paragraphs 4 and 38
[17] Exhibit T1, T documents, page 15, Permit to Acquire Firearm
There are no statements of reasons for these decisions. However on 23 April 2015 Detective Sergeant Noble as the Deputy Registrar, ACT Firearms Registry wrote to Q, noted that he had recently applied for three FPAs, and advised him that he had decided to place a condition on Q’s adult firearms licences to cap the total number of registered firearms that he can own to 77. The Deputy Registrar noted that Q currently owned 77 firearms. As noted, it was agreed at the hearing that this number was incorrect, and that Q in fact then owned 79. That letter stated that the reasons for the decision were as follows:
1. You have not been able to produce evidence that you have a special need to possess or use a firearm to which a category B licence applies;
2. You have not been able to establish a good reason for acquiring the firearms; and
3. I do not believe it is in the public interest for you to acquire any more firearms than you currently own.[18]
[18] Exhibit T1, T documents, pages 1-3, letter dated 23 April 2015
In relation to these licences, Q is required to be a member of an approved club.[19] An ‘approved club’ is one approved by the Registrar.[20] The approval is a disallowable instrument.[21] At the hearing counsel for the Registrar indicated that there was an issue about the relevant approvals. The Registrar requested a delay in the Tribunal reaching its decision in this matter to enable this issue to be addressed; the Registrar has now indicated to the Tribunal that this issue has been resolved.[22]
B. Hearing
[19] Section 61 of the Firearms Act
[20] Dictionary and section 40 of the Firearms Act
[21] Section 40(6) of the Firearms Act
[22] Letter from the ACT Government Solicitor to the Tribunal dated 15 September 2015
This matter was heard by the Tribunal on 18 August 2015.
Q was represented by Mr Wilton, provided a statement (Exhibit A1), and was cross-examined on that statement.
The Registrar was represented by Mr Archer. In addition to the T documents (Exhibit T1), a statement by Detective Sergeant Noble, Team Leader of the ACT Firearms Registry, was provided (Exhibit R1) and Detective Sergeant Noble was cross-examined on that statement.
Q provided a statement of facts and contentions, his counsel made oral submissions, and also provided extensive written submissions. The Registrar also provided a statement of facts and contentions, his counsel made oral submissions, and in light of counsel for Q’s written submissions, was able to and did submit supplementary written submissions. Q’s counsel also submitted further written submissions in reply.
C. Structure of the regulation of firearms
Section 5(1) of the Firearms Act sets out the underlying principles of the Act as follows:
5Principles and objects of Act
(1)The underlying principles of this Act are—
(a)to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety; and
(b)to improve public safety—
(i)by imposing strict controls on the possession and use of firearms; and
(ii)by promoting the safe and responsible storage and use of firearms; and
(c)to facilitate a national approach to the control of firearms.
Section 5(2) then sets out the objects of the Act which include:
…
(c)to require each person who possesses or uses a firearm under the authority of a licence to establish a genuine reason for possessing or using the firearm;
(d)to provide strict requirements that must be satisfied in relation to the licensing of firearms and the acquisition and sales of firearms;
(e)to ensure that firearms are stored and conveyed in a safe and secure manner;
…
A person commits an offence if they possess or use a prohibited firearm[23] or a firearm[24] which is not authorised by a licence, permit or otherwise under the Firearms Act.[25] The general authorisation mechanism under the Act is broadly a two step process.
[23] Section 7 of the Firearms Act
[24] Section 6 of the Firearms Act
[25] Sections 42 and 43 of the Firearms Act
First, a person must obtain a firearms licence.[26] As discussed Q held relevant licences, and no issue was raised by the Registrar in relation to these licences. A licence is subject to standard conditions[27] and the Registrar may impose additional conditions upon a licence.[28]
[26] Part 7 of the Firearms Act
[27] Section 73(1) of the Firearms Act
[28] Section 73(3) of the Firearms Act
Second, a licensee must obtain a permit to acquire a firearm.[29] Section 143 of the Firearms Act provides that a person who is a licensee may apply to the Registrar for a permit to acquire a firearm. Section 144 then provides that the Registrar must issue the permit unless prevented from doing so by the Act. Section 145 then provides in part:
145Permits to acquire—refusal to issue generally
(1)The registrar must refuse to issue a permit to acquire a firearm (the proposed firearm) unless—
(a)the acquirer holds a licence authorising the acquirer to possess or use a firearm of the same kind as the proposed firearm; and
(b)the registrar is satisfied on reasonable grounds that the acquirer has a good reason for acquiring the firearm.
[29] Part 10 of the Firearms Act
Subsection (2) goes on to deal with a permit to acquire a pistol by the holder of a category H licence issued for the genuine reason of sport or target shooting; the parties did not suggest that this was relevant here.
As noted, Q held relevant licences for the purposes of section 145(1)(a). Therefore, relevantly the Registrar must refuse to issue a permit to acquire a firearm unless satisfied on reasonable grounds that Q has a good reason for acquiring the firearm.
There are four important elements to this provision. First, the decision is one for the Registrar. Second, the satisfaction of the Registrar must be on reasonable grounds. This is a limitation on the Registrar’s discretion, since it requires the existence of a basis, and facts, which would lead a reasonable person to the same result.[30] Third, the issue requiring this satisfaction is that the acquirer has a ‘good reason’ for acquiring the firearm. Fourth, section 145(1) is structured as requiring a refusal unless the requirement is met. But this sits within the broader structure of section 144 which requires a grant unless prevented by the Act. This somewhat complicated drafting style means that if there is no good reason, the Registrar must refuse, but if there is a good reason, provided other requirements are met, they must approve. The only discretionary element in the decision whether or not to issue a permit is in the Registrar forming a view that the acquirer has a ‘good reason’ to acquire the firearm.
D. Consideration of the FPA decisions – when is there a good reason?
[30] McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423, Gleeson CJ and Kirby J at [9]-[10], quoting George v Rockett (1990) 170 CLR 104 at 112; Hayne J at [63]
As noted, there is no formal statement of reasons for the decision to refuse the FPAs. The letter of 23 April 2015 appears to be principally focussed on the decision to impose a condition on the licences. However it does refer to the FPAs, section 145, and states that ‘you also do not appear to have a good reason for acquiring this amount of firearms’. The specific reasons given, and quoted above at paragraph 14, include the lack of a good reason for acquiring the firearms.[31]
[31] Exhibit T1, T documents, pages 1-3, letter dated 23 April 2015
The statement of Detective Sergeant Noble, Exhibit R1, states at paragraph 38 (see also paragraph 56):
I was not satisfied on reasonable grounds that … [Q] had a good reason for acquiring the proposed firearms, pursuant to section 145(1)(b) of the Firearms Act. In my view,… [Q] had not demonstrated a ‘good reason’ for the need to acquire these three further firearms, in addition to the firearms he already held. I had particular regard to public safety considerations in making this determination.
The statement then notes that regard was had in particular to two broad issues, first proliferation of firearms, and second security and risk factors.
D.1 Q’s stated reasons
Q stated that the reason for acquiring the Winchester Model 1892 firearms under his collectors licence was for the purpose of his approved collecting activities. This acquisition is consistent with his collectors licence, and the application for this collectors licence. In the email of 15 April 2015, referred to in paragraph 11 above, Q elaborated in some detail on this purpose, and set out the reasons for purchasing these specific firearms; one was to be used for a scrap gun and then disposed of, that is sold; and the other was a variant he did not have and wanted to add to his collection of 1892s. This was further elaborated on by Q in his statement in these proceedings and his oral evidence. The reason proposed as a ‘good reason’ clearly linked back to and was consistent with the ‘genuine reason’ proposed and accepted for the licence (as set out in paragraph 8 above). The proposed reason had in effect been accepted by the Registrar on 46 previous occasions, though without the level of detail provided in relation to these FPAs.
Q stated that the reason for acquiring the Henry Model 4004 under his shooting licence was for the purpose of target shooting. This acquisition is consistent with his application for that licence, and was further elaborated on by Q in his statement and his oral evidence. Q set out his membership of shooting organisations; his regular participation in shooting sports, namely the lever action, metallic action and single action disciplines; and the variety of activities these involve and the variety of rifle types required. He stated that ‘differences in configuration, type of sight, weight, balance, grips, stocks, trigger, manufacturer and year of production, barrel length, existing wear patterns, rifle styling and firearm reliability means that many competitors possess a number of different firearms to compete in the various types of matches and disciplines.’ He provided copies of the rules for the various disciplines, which are detailed and extensive.[32] He elaborated in oral evidence on why this particular firearm was more suited to his needs. The reason proposed as a good reason clearly linked back to the ‘genuine reason’ proposed and accepted for the licence (set out in paragraph 5 above) . The proposed reason had in effect been accepted by the Registrar on 33 previous occasions.
[32] Exhibit A1, statement of Q dated 15 July 2015, paragraphs 11-33 and exhibits 3-5 to this statement
The Registrar argued that there was no good reason put forward by Q for the proposed acquisitions.[33] The Registrar did not suggest that the reasons put forward by Q were not his true reasons. Rather, the Registrar argued that proliferation of firearms and security and risk factors undercut these as good reasons, and we turn to consider the relevance of these factors in determining whether an applicant for a permit to acquire has a ‘good reason’ for acquisition.
D.2 What is a good reason?
[33] Respondent’s statement of facts and contentions, paragraph 20
The Firearms Act does not define what the term ‘good reason’ encompasses in section 145(1)(b). The word ‘good’ takes its ordinary meaning in light of the context in which it appears. The Macquarie Dictionary lists 65 meanings and gives the usual meaning of the word ‘good’ in the phrase ‘good reason’ as ‘genuine; sound or valid’. The word ‘reason’ is defined as meaning ‘a ground or cause, as for a belief, action, fact, event, etc’. The Oxford Dictionary likewise gives the word ‘good’ a variety of meanings, the most pertinent to the current context being ‘2. Having the required qualities; of a high standard 3. Useful, advantageous, or beneficial in effect 4. Appropriate to a particular purpose.’ The word ‘reason’ is defined by the Oxford Dictionary as ‘1. A cause, explanation, or justification for an action or event.’ It is noted that the related phrase ‘genuine reason’ is used in sections 5(2)(c), 58(1)(b), 61(1) and others.
A consideration of whether the grounds or cause for seeking to acquire a firearm are ‘good’ must at the least include a consideration of whether the asserted reason is genuine, but also whether that reason is sound, valid and appropriate in the context of the Firearms Act. This will require consideration of the factual circumstances of the particular licence-holder, such as the class of licence held, the type of firearms already in possession and proposed to be acquired, and storage and security issues. The factual matters must be considered with reference to the underlying principles and objects set out in section 5 of the Firearms Act.
D.3 Proliferation of firearms – is the number of firearms already held relevant?
Q already has 79 firearms lawfully acquired. The statement of Detective Sergeant Noble noted that in October 2013 there were approximately 17,000 firearms in the ACT; in July 2015, 19,027.[34] The mathematical average of firearms for each licence is 3.18.[35] It was suggested that anecdotal evidence suggests that because most holders have numerous categories of licence, it is likely that each holder has in fact approximately 10 firearms.[36] Detective Sergeant Noble gave evidence that another person in the ACT has 141 firearms, though this has also apparently now been limited by a licence condition. He could not say if others also had more firearms than Q, but he thought there were not many who did. The evidence was that it was difficult to obtain from the relevant databases more detailed information about gun ownership. For example it was not possible to provide average numbers for persons holding a collectors licence, as Q does, or a firearms dealers licence, the security requirements for which Q is seeking to match. Evidence from other States and Territories was not provided; this would have been useful given that one of the underlying principles of the Act is to facilitate a national approach to the control of firearms (section 5(1)(c)). The NSW Administrative Decisions Tribunal in Macdonald v Commissioner of Police, NSW Police [2007] NSWADT 174 at [23] noted and accepted evidence from the Acting Manager of the NSW Firearms Registry that many firearms dealers, including club armourers and collectors, possess hundreds of firearms, and there are many dealers who possess thousands of firearms. Furthermore, these persons are either authorised to possess highly restricted firearms, or stock large numbers of firearms, which are extremely valuable to the criminal element. Persons engaged in commercial activities invariably advertise their goods.
[34] Exhibit R1, statement of Detective Sergeant Noble dated 30 July 2015, paragraph 42
[35] Exhibit R1, statement of Detective Sergeant Noble dated 30 July 2015, paragraph 43
[36] Exhibit R1, statement of Detective Sergeant Noble dated 30 July 2015, paragraph 44
Q suggested that the fact that he already has 79 firearms was irrelevant to these FPAs.[37] Q also argued that the statistical information is very inconclusive, and did not relevantly support the rejection of the applications.[38]
[37] Applicant’s written submissions, paragraphs 52(e) and 65
[38] Applicant’s written submissions, paragraph 52 (i)-(j)
The Tribunal does not agree with the proposition put by Q that the number of existing permits and firearms is irrelevant to the grant of further permits. The number of existing permits and firearms can be relevant in a range of ways to whether a licensee has a good reason for obtaining another permit and firearm. For example, an FPA to obtain the same firearm a licensee already holds raises a legitimate question as to what is the good reason for doing so. In this case, Q is doing this, but has indicated it is to be used as a scrap gun to improve his existing collection, and will then be sold.
Further, in relation to a collectors licence, the question of whether and if so how a proposed firearm would fit into the particular collection is important. A collection of examples of a particular kind of firearm would not normally require two identical firearms, unless the nature of the collection is to collect identical exemplars.
More generally, the fact that a licensee already possesses a firearm must raise the question of why a further firearm is required. The fact that a licensee has a well above average number of permits and firearms may be relevant to assessing their good reason for further permits and firearms. But if there is a reason for acquisition, the fact that the current number of firearms is high, or above average, does not of itself undercut that reason. There is nothing special about the number 77 or 79 or a number ‘above average’ which means that there is no good reason to possess more than that number of firearms. The legislative provision for collectors licences contradicts such an argument.
However, and importantly, if the number of firearms possessed and proposed additions in the circumstances of a particular case poses a risk to public safety, this could well lead to the conclusion that the reason for acquisition, although genuinely held and consistent with the licence, is not sound, valid or appropriate.
That is the ‘proliferation’ argument is relevant if based on the interests of public safety, since this is in turn relevant to whether there is a ‘good reason’ for the acquisition. Intuitively it would seem that a limit on the number of firearms possessed by a licensee promotes public safety, however the legislation achieves the end of public safety by providing for the good reason test, rather than by placing a general numerical limit on ownership, or prescribing a mathematical formula or sliding scale of need against risk to do so.[39] Although the test of ‘good reason’ for acquisition may in practice become more difficult to satisfy as the number of firearms already in the licensee’s possession increases, this is generally not because of any express or implied limit, but a consequence of public safety considerations being relevant to whether there is such a good reason.
[39] Some specified conditions do deal with the number of firearms, see for example section 75(3)
In a colloquial sense a reason will not be ‘good enough’ if the acquisition poses a risk to public safety. As noted, the fundamental principles of the Firearms Act refer to the overriding need to ensure public safety, and to improve public safety by imposing strict controls on the possession and use of firearms and promoting the safe and responsible storage and use of firearms. Further, the objects of the Act include to require each person who possesses or uses a firearm under the authority of a licence to establish a genuine reason for doing so. Where the addition of firearms to an already large collection poses a risk to public safety, this would suggest that there was in fact not a good reason for the acquisition.
D.4 Public safety factors are relevant
The Registrar did not suggest that security and risk factors, that is the threat to public safety, arises from Q causing the firearms to be used inappropriately or their possession to be deliberately transferred to another in contravention of the Act. The risk is said to arise from the fact that the large collection held by Q could create a ‘honey pot’ effect which would encourage thieves to target the collection and steal it.[40]
[40] Respondent’s statement of facts and contentions, paragraph 25
First, this would require knowledge of the collection, and the Registrar indicated that relevant information is circulated around the firearms community,[41] and argued that social media and other forms of modern communication could facilitate this. Q’s evidence was that only those persons invited onto the premises can become aware of their contents. He does not generally disclose his address to other shooters; nor the existence of the firearms to neighbours.
[41] Exhibit R1, statement of Detective Sergeant Noble dated 30 July 2015, paragraph 50
The statement of Detective Sergeant Noble noted that the number of firearms involved in offences is trending down, and the incidence of firearm theft is relatively low, but that the consequences of theft is high, particularly when large gun collections are involved.[42] There have been incidents at the premises, but these were quite some time ago, were reported by Q, were not firearms related and did not result in the theft of any firearms.[43] Q also reported some incidents in the neighbourhood, but these simply demonstrate his concern for community safety.[44]
[42] Exhibit R1, statement of Detective Sergeant Noble dated 30 July 2015, paragraphs 47-48
[43] Exhibit R1, statement of Detective Sergeant Noble dated 30 July 2015, paragraph 30
[44] Exhibit R1, statement of Detective Sergeant Noble dated 30 July 2015, paragraph 30; oral evidence of Q
Second, this would require a successful theft. Q’s evidence was that on the basis of advice received from the Firearms Registry he satisfied the storage requirements for each of the categories of firearms he held.[45] This was not disputed. It is a condition of the licences that Q comply with Part 12 of the Act concerning safe storage of firearms in relation to each registered firearm.[46] These requirements are set out in sections 181 and 182, and the Firearms Regulation 2008 (Firearms Regulation). Failure to comply with section 181 or 182 is also an offence, as is a general failure to take all reasonable steps to ensure that a firearm is stored safely.[47] There was no suggestion or evidence Q had ever been in breach of these requirements.
[45] Exhibit A1, statement of Q dated 15 July 2015, paragraph 44
[46] Section 73(1)(a) of the Firearms Act
[47] Section 180 of the Firearms Act
Further Q stated that he has strengthened the storage and security to the equivalent level required of licensed firearms dealers. He advised the Firearms Registry of his proposals in this regard in a detailed letter with attachments dated 15 December 2014; he has been advised of in-principle approval of the work; this is substantially completed.[48] These works however have not been inspected by the Firearms Registry.[49] The works have included construction of a separate building designed to be used for firearms storage; installation of a 24 hours monitored back-to-base alarm system; installation of cctv monitoring; barring of external ground floor windows and doors; storage and display of firearms on the second floor; the use of laminated glass; building without a ceiling cavity; and other measures.[50] As his email of 20 April 2015 demonstrates, Q recognised the importance of security, knew that his collection was large and growing and that the police would legitimately have concerns about this, and believed that the best means of satisfying those concerns would be to anticipate them and work proactively in addressing them.[51]
[48] Exhibit A1, statement of Q dated 15 July 2015, paragraphs 45-49
[49] Exhibit A1, statement of Q dated 15 July 2015, paragraph 48
[50] Exhibit A1, statement of Q dated 15 July 2015, paragraph 49
[51] Exhibit T1, T documents, page 10, email dated 20 April 2015
Detective Sergeant Noble stated that he was aware of Q’s proposed storage requirements. Further he stated that while commendable, ‘this does not guarantee a risk free environment, and a determined burglar may not be deterred.’[52] There are requirements that firearms be in a ‘temporary inoperable state’, however it was submitted for the Registrar that a certain class of burglars could operationalise the firearms.[53]
[52] Exhibit R1, statement of Detective Sergeant Noble dated 30 July 2015, paragraph 49
[53] Statement of Detective Sergeant Noble dated 30 July 2015, paragraph 54
The Tribunal does not think that the ‘good reason’ test and its public safety element, as discussed above, requires a wholly risk free environment. Firearms are inherently dangerous. Any storage facility could be broken into. To require a wholly risk free environment would mean few permits, if any, could be granted. Such a result would be contrary to the purpose of the Firearms Act, which is to enable the purchase and storage of firearms.
Rather, the focus should be on real, but not remote, risks. The Tribunal was referred to the decision of the NSW Administrative Appeals Tribunal in Yaghi v Commissioner of Police, NSW [2001] NSWADT 91 which concerned review of a decision to revoke a firearms licence, principally on the basis of the licensee’s conviction of the offence of not keeping firearms safely. The Tribunal there stated:
[47] Remote or conceivable consequences of certain circumstances can be the subject of speculation but are not the legitimate subject of findings. There is always a possible danger to the public in the conveyance or carriage of firearms. Conceivably that danger may be immediate or remote: it may be direct and immediate such as where a loaded firearm is being used for a certain purpose such as hunting, or it may be indirect and remote following the theft of an unloaded firearm.
[48] The extent to which the actions or omissions of licensees contribute to that danger is a matter of fact. … [In this case] the breaches could not be described as trivial and are not excusable but neither in my view are they so fundamental that they in fact compromised the safety of the public.
These comments were made in relation to a different legislative and factual context. But they do articulate the need to distinguish between direct and immediate risks to public safety, and indirect and remote threats. Decisions in this context should generally be made on the basis of the former, not the latter. An indirect or remote risk does not provide a basis, or facts, which would lead a reasonable person to the same result. Again, if indirect or remote threats are determinative, few if any permits would be granted.
Counsel for the Registrar referred to comments in Aubrey v The Commissioner of Police, NSW [2005] NSWADT 266 at 22[54] that in relation to a licensing decision, while 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, ‘the Tribunal must be satisfied that there is virtually no risk to public safety if [a person] were given access to a firearm.’ That case concerned a licensee who had demonstrated on a number of occasions a lack of control when confronted with frustrating circumstances. But here there are no such factors giving rise to risk if Q is given access to the firearms. The risk identified is of a different nature, that is theft from the premises of Q. Tolley v Commissioner of Police, NSW [2006] NSWADT 149 was a case which concerned risk from theft, which arose from the fact that the licensee’s son had been convicted of, and was charged with further, serious drug offences, including commercial supply, these offences were conducted from the licensee’s premises, and search warrants in relation to the offences had found prohibited and unregistered firearms.[55] There are no such factors giving rise to risk in relation to Q.
[54] Quoted in Tolley v Commissioner of Police, NSW [2006] NSWADT 149 at [13]
[55] Tolley v Commissioner of Police, NSW [2006] NSWADT 149 at [3] –[7].
What is required is a storage environment that appropriately manages the real risk to public safety involved in this number of firearms, and the increase in that risk posed by the acquisition of three more firearms. If these risks are not addressed, then no reason for acquisition can be considered to be good reason.
In this matter, there are indications that what is proposed by way of storage does manage the risk to public safety. Q is careful about disclosing information concerning the collection; there was no evidence to the contrary. The storage environment complies with all the requirements for storage of the relevant firearms. There is no evidence of any breach of these requirements, or any suggestion that there will be a breach. Additional significant protections have been added in light of the large number of firearms so that the security is to be equivalent to the level required of licensed firearms dealers. The Registrar did not point to any specific concerns with this storage. On the basis of the information before the Tribunal, the public safety risk will be appropriately managed by the storage proposed. The risk of theft if security is at the level required of licensed firearms dealers is remote.
To put this another way, if the proposed level of security is insufficient for Q, then this suggests it is also insufficient for licensed firearms dealers and others with a large number of firearms. Licensed firearms dealers generally advertise their business, and can have holdings greater than proposed here; if the storage is equivalent to that required for such dealers, then this suggests the risk to public safety at Q’s premises is less here than for such licensed firearms dealers.
E. Review of the decision to refuse the FPAs
The Tribunal has jurisdiction to consider the refusal of the permits under section 260A and Schedule 4, item 35 of the Firearms Act. Under section 68 of the ACT Civil and Administrative Tribunal Act 2008 the Tribunal may confirm, or vary, or set aside and substitute or remit the original decision. The Tribunal conducts merits review of an administrative decision, and in doing so is required to stand in the shoes of the original decision maker, and make the correct or preferable decision.[56]
[56] Section 68 of the ACT Civil and Administrative Tribunal Act 2008 (ACT); Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419; Esber v Commonwealth (1992) 174 CLR 430 at 440
The Tribunal proposes to set aside the rejection of the three FPAs on the basis that the Registrar did not properly engage with the good reason requirement and consider whether there was a real or direct risk to public safety.
But the Tribunal declines to make fresh decisions in substitution for the original decisions. The information before the Tribunal is insufficient for it to reach a concluded view on whether Q has ‘good reason’ to acquire each of the proposed additional firearms, because the new storage arrangements have not been inspected by the Firearms Registry. In the view of the Tribunal, this should occur, and an assessment made as to whether the strengthened security and storage is sufficient to manage the real or direct risk involved in accommodating the three additional firearms sought by Q. It is appropriate that the Registrar make this assessment, at least in the first instance.
What is particularly relevant is compliance with the regulatory requirements, and whether the level of security is in fact equivalent to that for those who hold a firearms dealers licence. The number and type of firearms proposed to be acquired is of course a relevant factor, and these need to be considered against the firearms already owned by Q in the context of each licence. The Tribunal notes that if the strengthened arrangements do comply with the regulatory arrangements for those who hold a firearms dealers licence there does not seem a basis for denying the FPAs.
Accordingly, the Tribunal will remit the three FPA applications to the Registrar to allow the Firearms Registry to conduct such inspections of the works, storage arrangements and firearms as is necessary, and in light of this consider the risk to public safety posed by the proposed acquisitions, and whether or not there is a good reason for the acquisitions.
F. Consideration of the decision to place a condition on the licences
Section 73 of the Firearms Act provides for conditions on firearms licences. Section 73(1) sets out some general conditions, including that the licensee must comply with Part 12 (safe storage of firearms) in relation to each registered firearm[57], and paragraph (g) provides for any other condition prescribed by regulation (see regs 20-27 of the Firearms Regulation). Section 73(3) then provides:
(3) An adult firearms licence is also subject to any condition that the registrar believes on reasonable grounds is in the public interest.
The Minister may make guidelines about the making of a decision whether it is in the public interest to put a condition on a licence under section 37(2)(d), but no such guidelines have been made. There are several preliminary issues which should be noted in relation to section 73(3).
F.1Preliminary issues
[57] Section 73(1)(a) of the Firearms Act
First, consideration needs to be given as to whether ACAT has jurisdiction to review its exercise. A person mentioned in schedule 4, column 4 may apply to the ACAT for a review of a reviewable decision.[58] A reviewable decision means a decision mentioned in schedule 4, column 3, under a provision of the Firearms Act mentioned in column 2.[59] Item 9 of schedule 4 refers to section 73(2) and the decision to ‘put condition on adult firearms licence’. There is no item which mentions section 73(3).
[58] Section 260A of the Firearms Act
[59] Section 258 of the Firearms Act
However, section 73(2) refers only to when a police officer may enter premises under the general condition in section 73(1)(d); it does not deal with the decision to put a condition on a licence. Rather section 73(3) is the section which meets this description. Further note 2[60] under section 73(3) provides that if the Registrar puts a condition on a licence, the Registrar must give written notice of the decision to the licensee, and refers to section 260, which deals with reviewable decision notices. The Tribunal is of the view that the reference to section 73(2) in item 9 of schedule 4 is a mistake, and was intended to be a reference to section 73(3). This is a drafting error which if uncorrected would defeat the object of the provision.[61] The item should be read as referring to section 73(3).
[60] Under section 127(1) of the Legislation Act2001 (ACT) a note is not part of an Act. However under section 141(1) in working out the meaning of an Act, material not forming part of an Act may be considered, and under section 142(1) in working out the meaning of an Act, material not forming part of the Act contained in an authorised version of the Act may be considered
[61] Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531, French CJ, Crennan and Bell J at [38].
Second, consideration needs to be given as to whether the power can be exercised at this time, well after the licences have been issued. The power in section 73(3) is not expressly time limited. It could be exercised at the time of grant of the licence. But there is no limitation to exercise only at this time. Further, section 197 of the Legislation Act 2001 (ACT) (Legislation Act) states that if a law gives a function to an entity, the function may be exercised from time to time. There is no basis for a contrary intention.[62]
[62] Section 6(3) of the Legislation Act
Third, there is an issue as to whether such a condition can deal with the number of permits, and therefore firearms, which the licensee can hold. As noted, section 144 of the Firearms Act provides that on an application for a permit to acquire a firearm, the Registrar must issue the permit unless prevented from doing so by the Act. A reference to a law, such as the Firearms Act, includes statutory instruments made under the law.[63] ‘Statutory instrument’ is defined in the Legislation Act to mean an instrument, whether or not legislative in nature, made under an Act (section 13). In turn, ‘instrument’ is defined to mean any writing or other document (section 14). It seems likely therefore that the reference to prevention by the Firearms Act in section 144 includes prevention by a condition. At any rate the power to impose conditions is included in the Act. Some specified conditions deal with the number of firearms,[64] suggesting this is not inconsistent with the scheme of the Act.
[63] Section 104 of the Legislation Act, referred to in note 2 to section 144
[64] Section 75(3) of the Firearms Act
Fourth, it is likely that the imposition of a condition, especially at a time after the licence has been granted, is subject to a requirement to provide procedural fairness to the licensee; that is an opportunity to be heard on that issue before the decision is taken.
F.2No special need requirement
As noted above at paragraph 14, the letter of 23 April 2015 from the Deputy Registrar gave as a reason for imposition of the condition that Q had not been able to produce evidence that he had a ‘special need’ to possess or use a firearm to which a category B licence applies. The Firearms Act does not make the issue of special need relevant to a decision about conditions; the issue of special need is relevant to the issue of a category B adult firearms licence[65]; Q already holds such a licence. The Registrar admitted that the issue of special need was not relevant to the conditions decision.[66] This reveals an error in the decision-making process.
F.3No good reason requirement
[65] Section 63 of the Firearms Act
[66] Exhibit R1, statement of Detective Sergeant Noble dated 30 July 2015, paragraph 58
The second reason given was that Q had not been able to establish a good reason for acquiring the firearms. Again, the Firearms Act does not make the issue of a good reason for acquiring firearms relevant to a decision about conditions on a licence. The existence of a genuine reason for possessing or using a firearm is relevant to the issue of an adult firearms licence[67]; Q already holds such a licence. The issue of a good reason for acquiring a firearm is relevant to the grant of a permit to acquire[68], which is a different decision, discussed above. The Registrar admitted that the issue of a good reason was not relevant to the conditions decision. This reveals an error in the decision-making process.
F.4Restriction to 77
[67] Sections 58(1)(c) and 61 of the Firearms Act
[68] Section 145(1)(b) of the Firearms Act
The letter of 23 April 2015 on a number of occasions states that Q has 77 firearms. This appears to be the reason why the condition limits ownership to 77. As noted above it is now agreed that this was incorrect, and that Q owns 79 firearms under 79 permits. If the basis for the limitation was the number of firearms then owned, it should therefore have been a limitation of 79. No other rationale was provided as to why 77 was an appropriate limit to set on Q’s licence or any other holder of a similar licence. The Tribunal’s comments about imposing a numerical limit in relation to FPAs equally apply in relation to imposing a condition on a licence, and is discussed further below.
F.5Public interest in public safety?
The third reason given in the letter of 23 April 2015 was that the Deputy Registrar did not believe it was in the public interest for Q to acquire any more firearms than he currently owned. The concept of public interest is in section 73(3); it gives to the Registrar a discretion to have regard to a range of factors, confined only by the subject matter, scope and purpose of the Firearms Act.[69] The application of a public interest criterion may require a balancing of competing interests and involve a question of fact and degree.[70]
[69] Hogan v Hinch (2011) 243 CLR 506, French CJ at [31]-[32]; Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ at [69]; O’Sullivan v Farrer (1989) 168 CLR 210 at 216
[70] Hogan v Hinch (2011) 243 CLR 506, French CJ at [32]
Further, any condition imposed must be one the Registrar believes on reasonable grounds is in the public interest. This is a limitation on the Registrar’s discretion, since it requires the existence of a basis, and facts, which would lead a reasonable person to the same result.[71]
[71] McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423, Gleeson CJ and Kirby J at [9]-[10], quoting George v Rockett (1990) 170 CLR 104 at 112; Hayne J at [63]
The statement of Detective Sergeant Noble (Exhibit R1) notes in relation to the decision to impose the condition at paragraph 57:
I believed on reasonable grounds that it was in the public interest to place a condition on … [the] licence so as to place some limit on the number of firearms that …[Q] stores in his suburban home to cap the total number of firearms he could hold to 77, being the number indicated by the AFP Registry of Firearms Official Records that he was the ‘registered owner’ of. I recognise that there is an element of arbitrariness in this decision.
This statement does not set out what the reasonable grounds were, nor what the relevant public interest was. This statement does follow on from the discussion of the permits decisions, and it was clear that the issues raised in relation to them were also considered in relation to the conditions decision.
There can be no doubt that public safety is a relevant public interest in relation to decisions under the Firearms Act. The principles and objects set out in section 5 make this clear. But it is necessary to show a threat to public safety which the condition addresses.
Q already has 79 firearms, and this appears to be well above the ACT average. This of itself, provided there is compliance with the Firearms Act regime, does not give rise to a risk to public safety so as to support a condition. The fact that some licensees own more supports this view, and that the selection of 77 as the cap for Q is indeed arbitrary (see paragraph 35 above).
As with the permits decisions, the Registrar did not suggest that the threat to public safety arises from Q causing the firearms to be used inappropriately or their possession deliberately transferred to another in contravention of the Act. The Registrar rather submitted that the relevant public interest was a sufficient risk that the large gun collection held by the applicant could be stolen and that its very size would create a ‘honey pot’ effect by encouraging thieves to target the collection.[72] This was the same factor considered in relation to the permits decisions. Similar issues therefore arise as are discussed above at paragraphs 43 to 54 in relation to the permits decision. This discussion is not restated here, but is adopted.
[72] Respondent’s statement of facts and contentions, paragraph 25
As with the permits decisions, the Tribunal notes that it does not think it appropriate to require a wholly risk free environment. To support a condition of this nature there needs to be a real or direct risk to public safety which the proposed condition addresses. The fact that the storage environment complies with all the requirements for storage of the relevant firearms; that there is no evidence of any breach of these requirements, or any suggestion that there will be a breach; that additional significant protections have been added in light of the large number of firearms so that the security is to be equivalent to the level required of licensed firearms dealers; that the number 77 was based on what it was thought to be the number of firearms and permits Q already had, and not on any assessment of public safety considerations; and that any further acquisitions need to be the subject of a permit granted under section 145 which includes consideration of public safety considerations, suggests that there is no real or direct public safety risk at this time which the condition addresses
G. Review of the decision to impose a condition
The powers and role of the Tribunal are set out at paragraph 55 above. The Deputy Registrar made the decision to impose a condition on the licences of his own initiative. For the reasons set out above, there are significant errors in this decision on the basis of which the Tribunal proposes to set aside the imposition of the condition.
The Tribunal may substitute its own decision or remit the original decision to the Registrar. The Tribunal does not think there is a basis on the information before the Tribunal for imposing such a condition.
Unlike the permits decisions, the Tribunal does not think it appropriate to remit this decision to the Registrar. The Tribunal is of the view that the number of firearms Q owns is best managed through permits issued under section 145. This enables the Registrar to consider public safety considerations. It enables the Registrar to consider these in light of the particular circumstances of the case, that is in light of particular firearms already owned by Q, the firearms he seeks to acquire, and most importantly the security measures put in place to prevent theft. This is a preferable approach to imposing a general cap through a condition; it is difficult for such a general cap to be based on a real and direct risk to public safety, and to avoid being arbitrary.
The Tribunal decides therefore decides not to impose such a condition.
………………………………..
Ms M-T Daniel – Member
for and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER: | AT 15/39 |
PARTIES, APPLICANT: | Q |
PARTIES, RESPONDENT: | Registrar of Firearms |
COUNSEL APPEARING, APPLICANT | Mr Wilton |
COUNSEL APPEARING, RESPONDENT | Mr Archer |
SOLICITORS FOR APPLICANT | Paradigm Legal |
SOLICITORS FOR RESPONDENT | ACT Government Solicitor |
TRIBUNAL MEMBERS: | Mr R. Orr – Senior Member Ms M-T. Daniel – Member |
DATES OF HEARING: | 18 August 2015 |
0
12
0