WALKER and COMMISSIONER OF POLICE
[2012] WASAT 214
•25 OCTOBER 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: FIREARMS ACT 1973 (WA)
STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA)
CITATION: WALKER and COMMISSIONER OF POLICE [2012] WASAT 214
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: 19 OCTOBER 2012
DELIVERED : 25 OCTOBER 2012
FILE NO/S: CC 881 of 2012
BETWEEN: DAMIEN WALKER
Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Firearm Revocation of licence Fit and proper Failure to ensure proper safekeeping of a firearm Possession of a firearm while intoxicated
Legislation:
Firearms Act 1973 (WA), s 11, s 11(1), s 11(5), s 20(1)
State Administrative Tribunal Act 2004 (WA), s 22(2), s 27(1), s 27(3), s 29(1), s 29(3), s 29(5)
Result:
The application is dismissed
Summary of Tribunal's decision:
Mr Walker sought a review of the decision by the Commissioner of Police to revoke his firearms licence.
The Commissioner of Police contended that Mr Walker was not a fit and proper person to continue to be licensed. The Commissioner of Police did not take issue with Mr Walker's need for a firearm or with his character. Mr Walker is a senior Aboriginal elder and the Commissioner of Police accepts that he has a genuine need and reason to be licensed. The Commissioner of Police said, however, that Mr Walker is not a fit and proper person to be licensed since he had been convicted recently of carrying a firearm while intoxicated and failure to keep a firearm in safe storage.
Mr Walker said that he needed a firearm for cultural reasons, that he is a respected member of his community, that he is of sound character, and that he was remorseful of the events leading to the revocation of the licence. He said that he had been licensed for many years and that this single incident did not justify a finding that he was not 'fit and proper' to be licensed.
The Tribunal acknowledged the positive character references given for Mr Walker and said that it understood how important it is for an Aboriginal elder such as Mr Walker to be able to hunt. At the same time, however, the Tribunal must take cognisance of the public interest and the seriousness of the incident that led to the revocation. The combination of two unsecured firearms in a vehicle, with Mr Walker heavily intoxicated, and ammunition for these and other rifles being scattered through the vehicle, justify a finding that Mr Walker is not a fit and proper person to be licensed.
The application was therefore dismissed and the decision to revoke the firearms licence was affirmed.
Category: B
Representation:
Counsel:
Applicant: Ms Halliday
Respondent: Senior Constable S Bagley (Acting as Agent)
Solicitors:
Applicant: Legal Aid Commission of Western Australia
Respondent: Commissioner of Police
Case(s) referred to in decision(s):
Aquilia and Commissioner of Police [2012] WASAT 27
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Davies v Australian Securities Commission (1995) 131 ALR 295
Fletcher and Commissioner of Police [2011] WASAT 210
Morarescu v Commissioner of Police, NSW Police Force [2010] NSWADT 177
REASONS FOR DECISION OF THE TRIBUNAL:
Background
Mr Walker, an Aboriginal elder who lives in Karratha, had his firearms licence revoked on 15 March 2012. The Commissioner of Police (Commissioner), through the delegated officer, formed the opinion that Mr Walker was not a fit and proper person to be licensed. At the time, Mr Walker had four firearms on his licence (No 3850698). The reason for the Commissioner's decision is that Mr Walker was convicted on 20 February 2012 of two offences under the Firearms Act 1973 (WA) (Firearms Act). The two offences are 'carry/possess a firearm while intoxicated' and 'failure to secure a firearm'. For the first offence, Mr Walker was fined $1,500, and for the second offence, he was fined $500.
The offences relate to an incident that took place on 17 November 2011 close to Roebourne. Mr Walker was in a vehicle with another person when the police stopped it. It appeared that both persons were heavily intoxicated. Mr Walker was breath tested at 0.242%. Mr Walker does not dispute that he was heavily intoxicated. At the time when the vehicle was stopped, Mr Walker had two rifles on the front passenger seat between his legs a .22 calibre and a .22/250 calibre. Both rifles belonged to Mr Walker. Inside the vehicle was an assortment of ammunition which was not secured. Some of the ammunition was of the calibre of the rifles that were held by Mr Walker, but some were of other calibres; for example, ammunition for a shotgun and .22 Magnum.
Mr Walker was charged in the Magistrates Court for offences against the Firearms Act. He pleaded guilty and was fined on 20 February 2012. The Commissioner considered the offences and concluded that Mr Walker is no longer a fit and proper person to hold a firearms licence, and as a result, his licence was revoked.
Mr Walker applied for a review by the Tribunal on 6 June 2012. The matter was heard on 19 October 2012. Two witnesses gave evidence Mr Walker and 1st Class Constable Emma McNaboe. Several character references were filed by Mr Walker. The Commissioner did not take issue with those references. The Commissioner accepts that Mr Walker is an Aboriginal elder; he is of good character; hunting is an integral part of his life and culture; and he has a genuine reason to be licensed to hold a firearm.
The Tribunal took all of the submissions and evidence into account in coming to its decision.
Issue
Should the decision of the Commissioner to revoke the firearms licence of Mr Walker, on grounds of him not being fit and proper to be licensed, be revoked or affirmed?
Statutory framework
State Administrative Tribunal Act 2004 (WA)
Section 22(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) enables a person aggrieved by a decision by or on behalf of the Commissioner to seek a review. The Tribunal has, in accordance with s 29(1) of the SAT Act, the same jurisdiction, functions and discretions as those of the delegated officer. The Tribunal is not limited to the statement of reasons given by the delegated officer (s 27(3) of the SAT Act). The Tribunal may also take into account any additional or new information that was not at the disposal of the delegated officer at the time when the decision was made (s 27(1) of the SAT Act). The review hearing is therefore 'de novo' (s 27(1) of the SAT Act); the hearing is not confined to the matters and information that were before the decisionmaker at the time of the decision; and the Tribunal is to produce the correct and preferable decision.
The powers of the Tribunal according to s 29(3) of the SAT Act are to:
a)affirm the decision; or
b)vary the decision; or
c)set aside the decision,
and to make appropriate orders.
The decision of the Tribunal is regarded as a decision of the delegated officer (s 29(5) of the SAT Act).
Firearms Act 1973 (WA)
The relevant provisions of the Firearms Act for the purposes of these proceedings are:
11. Exercise of Commissioner's discretion
(1)The Commissioner cannot grant an approval or permit or issue a licence under this Act to a person if the Commissioner is of the opinion that
…
(c)the person is not a fit and proper person to hold the approval, permit, or licence.
…
(3)The Commissioner has a sufficient ground for forming an opinion that a person is not a fit and proper person to hold an approval, permit or licence under this Act if the Commissioner
(a)is satisfied that at any time within the period of 5 years before the person applies for the approval, permit or licence
…
(iii)the person was convicted of any offence against this Act;
…
whether in this State or in any other place;
…
(5)The Commissioner may form an opinion that a person is a fit and proper person to hold an approval, permit or licence under this Act in a case in which the Commissioner has a sufficient ground under subsection (3) for forming the contrary opinion.
(6)Subsection (3) does not limit the Commissioner's ability, when forming an opinion as to whether a person is a fit and proper person to hold an approval, permit or licence under this Act, to take into account
(a)a conviction or order made outside the period of 5 years referred to in paragraph (a) of that subsection; or
(b)anything else that could have been taken into account if that subsection had not been enacted.
…
20. Revocation etc.
(1)Where the Commissioner is satisfied
(a)that a person who is the holder of a licence, permit or approval under this Act
…
(iii)could not, because of section 11, be granted the approval or permit or issued the licence, as the case requires, if the person were then applying for it;
…
he may refuse to renew or may revoke any licence, permit or approval relating thereto or may impose reasonable restrictions, limitations or conditions thereon.
Consideration
The Firearms Act does not define what is meant by the term 'fit and proper'. Senior Constable Bagley, who acts for the Commissioner, contends that the offences Mr Walker committed against the Firearms Act renders him not fit and proper to be licensed. Ms Halliday, who acts for Mr Walker, comes to the opposite conclusion by saying, although the offences are serious, the totality of information before the Tribunal is that Mr Walker is a person of sound character, he has shown remorse for his actions, and he has been licensed since 1992 without any serious incident. She concludes that, pursuant to s 11(5) of the Firearms Act, the Tribunal may conclude that, regardless of the offences against the Firearms Act, Mr Walker continues to be a fit and proper person to be licensed.
The term 'fit and proper' does not denote any specific meaning without placing it in context of the relevant statute to which it applies. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [380], Toohey and Gaudrorn JJ stated:
The expression 'fit and proper person', standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of 'fit and proper' cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
In the matter of Davies v Australian Securities Commission (1995) 131 ALR 295 at [305], Hill J explained the term 'fit and proper' as follows:
The phrase 'fit and proper person' is a familiar one in the context of qualifications for offices or vocations. Discussing the phrase in a context of licences to use vehicles for the purposes of interState trade, Dixon CJ, McTiernan and Webb JJ said in Hughes and Vale Pty Ltd v The State of New South Wales (No2) (1995) 93 CLR 127 at 156-7:
'But their very purpose is to give the widest scope for judgement and indeed for rejection. "Fit" (or "idoneus") with respect to an office, is said to involve three things: honesty, knowledge and ability: "honesty to execute it truly, without malice, affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it". When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances. …'
In the context of the Firearms Act 'fit and proper' includes reference to a person's character, but is not limited thereto. It also takes into account the person's knowledge, skill and diligence when operating and safeguarding a firearm. This explains why the Firearms Act refers specifically to offences against the Firearms Act being a relevant factor when a determination is made whether a person is fit and proper to be licensed. The Tribunal is ultimately placed in a position to consider all the evidence. As is pointed out by Ms Halliday, even if there is an offence against the Firearms Act, the Tribunal may yet be satisfied that a person is fit and proper to be licensed. The fact that an offence has been committed against the Firearms Act therefore does not lead to an automatic revocation of a licence.
The proper and correct storage of a firearm especially while one is travelling is a serious matter. Refer, for example, to the matter of Fletcher and Commissioner of Police [2011] WASAT 210 where a firearms licence was revoked after Mr Fletcher was convicted for not properly storing firearms. Also, see the matter of Aquilia and Commissioner of Police [2012] WASAT 27 where a licence was revoked after a handgun had accidently been left at a public toilet. The Tribunal observed as follows at [39]:
With regard to Mr Aquilia's contention that the firearm offence does not demonstrate any pattern of behaviour, disposition or likeliness to reoffend so as to put the welfare or safety of the members of the public at risk if a firearm endorsement were to be granted to him, the Tribunal does not consider this factor to be determinative. The overriding factors, already detailed, are the importance of protecting and maintaining public confidence in, and the professional standards of, the armed security guard industry, and responsible, accountable and reliable conduct by persons who wish to enjoy the privilege of holding a firearm endorsement.
The Tribunal accepts the letters of character reference that were provided on behalf of Mr Walker. He is an Aboriginal elder, he participates in law business, he takes care of persons in his community, and he regularly hunts kangaroos and other animals for the purposes of feeding people and pursuing his culture. Mr Walker has not previously been convicted of an offence under the Firearms Act and he has been licensed since 1992. There is no doubt that the revocation of his firearms licence will severely impact on Mr Walker, as well as those that rely on him. At the same time, however, the Tribunal has to consider the interests of the public when making a decision. The Tribunal is entrusted by Parliament to take into account all relevant information, to balance it and then to determine an issue. Hence, the wording of s 11(1) of the Firearms Act that the Tribunal 'cannot' grant a licence if it is of the 'opinion' that Mr Walker is not a fit and proper person to be licensed.
The Tribunal must not only take into account the positive record of Mr Walker prior to the incidents leading to a revocation of his licence; the Tribunal must also consider the seriousness of the incident that led to his conviction. It may have been a oneoff incident, but the seriousness is at such a scale that a revocation is justified. It is not contested that Mr Walker:
•was on a public road at the time of the incident;
•was in a state of heavy intoxication;
•had two firearms clutched between his legs;
•had neither of the firearms safely stored or secured; and
•had ammunition for various firearms (including ammunition for firearms other than were in the vehicle) scattered throughout the vehicle.
Mr Walker further said during the hearing that he travelled from his hometown of Karratha to the site of the law business and then later to Roebourne without any protective bag or case in which the rifles or the ammunition were stored.
In a decision in New South Wales, Morarescu v Commissioner of Police, NSW Police Force[2010] NSWADT 177, the importance of proper, safe and secure storage of a firearm was usefully set out as follows:
In Wilkinson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 59 Deputy [P]resident Hennessy stated at paragraph [25]:
'As the Firearms Act does not list factors which a decision[]maker must take into account when exercising a discretion about revocation, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act. The improvement of public safety by promoting the safe and responsible storage of firearms is identified as one of the underlying principles of the Act. As is made clear from Part 4 of the Firearms Act Parliament did not leave the manner in which firearms are to be stored to the discretion of licence holders but instead elected to impose detailed and prescriptive requirements on all licensees.'
The underlying principles of the [Firearms] Act stated in section 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at paragraph 28, Deputy President Hennessy said that in terms of public safety, 'the Tribunal must be satisfied that there is virtually no risk'.
Mr Walker's actions on 17 November 2012 put him and his passenger, and any other member of the public they may have encountered, at potential serious risk. Although Mr Walker now says he regrets the incident, the Tribunal is not satisfied that if the nature and extent of his behaviour are considered, he fully understands the seriousness of the incident. Mr Walker says he has been licensed for many years, and although this is accepted, the Tribunal would expect of him an understanding of the importance of safekeeping that is commensurate with his years of being licensed. The Tribunal also has sympathy for the role Mr Walker fulfils in his community, but Mr Walker should have considered that prior to placing himself in the position he had where he was in possession of two rifles and on a public road while heavy intoxicated. His role in the community does not outweigh the public interest of safekeeping of a firearm. The community at large, and even the community where Mr Walker resides, may be seriously concerned if a person who has been convicted of such serious offences continues to be licensed.
Section 20(1) of the Firearms Act provides that if the Tribunal is satisfied that Mr Walker could not, because of the provisions of s 11 of the Firearms Act, be granted a licence if he were applying for it at the stage of the hearing, it may revoke the licence. The Tribunal is of the opinion that, after having considered all the evidence, the licence should be revoked, since Mr Walker is not a fit and proper person to be licensed.
The decision of the Commissioner to revoke the firearms licence should therefore be affirmed.
This decision does not disqualify Mr Walker from being licensed again in the future. He may, in due course, apply for a firearms licence and if he satisfies the statutory requirements, he may once again be placed in a position of trust where he could be licensed.
Conclusion
The decision to revoke the firearms licence of Mr Walker should be affirmed and the application for review should be dismissed.
Order
1.The application for a review of the decision to revoke the firearms licence of Mr Walker is dismissed.
2.The decision to revoke the firearms licence is affirmed.
I certify that this and the preceding [23] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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