In light of these findings, the Tribunal affirmed the decision of the Registrar under review.

Administrative Review - Firearms Act 2015 - Refuse an application for a firearms licence - Fitness and propriety

Firearms Act 1977

Firearms Act 2015 ss 3, 7, 15

Breeding v Registrar of Firearms [2017] SACAT 40

Balodis v Registrar of Firearms [2012] SADC 113

Offe v The Police[2002] SASC 301; (2002) 84 SASR 72

Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR(NSW)

Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630

Balodis v Police [2014] SASC 26

Police v Losapio [2007] SASC 112

Zammitt v Registrar of Firearms [2010] SASC 100

Pollitt v Police [2001] SASC 382

Davies v Registrar of Firearms [2005] SASC 149

Ms K Dellit, Crown Soliciltor's Office, for the Registrar of Firearms

1. This is an application for review of a decision of the Registrar of Firearms (the Registrar) whereby he refused to grant the applicant a firearms licence.
2. Due to intervening circumstances unrelated to this case, there has been a delay since I heard the matter. I apologise to the applicant for the delay in reaching this decision.
3. I indicate that I have reviewed all of the evidence and the recording of the internal review hearing for the purpose of writing this decision.
4. I must also place on record the fact that I have been made aware of an incident which apparently occurred when the applicant attended at the reception area of the Tribunal on 9 April 2018. That incident is not a matter that is before the Tribunal in this case and I have no regard to it whatsoever in coming to this decision.

1. The applicant previously held a firearms licence under the (now repealed) Firearms Act 1977 (the old Act) between 1980 and 2011. That licence was cancelled for reasons which will be set out below.
2. On 17 August 2016 the applicant applied to the Registrar for a firearms licence. The matter was determined by a delegate of the Registrar. On 18 January 2017 the application was refused. The delegate stated that he was not satisfied that the applicant was a fit and proper person to hold a firearms licence.
3. By letter dated 22 February 2017 the applicant sought to have the decision reviewed by the Firearms Review Committee as was his entitlement under the old Act.
4. It appears that this letter was not actioned and the request was not conveyed to the Committee.
5. On 1 July 2017 the old Act was repealed and the Firearms Act 2015 (the Act) came into force. The committee was abolished and it was provided that any application for review by the Committee was to be treated as an application for review by this Tribunal.
6. The applicant wrote again to the Registrar on 9 August 2017 to follow up on his application. The matter was subsequently referred to this Tribunal and listed for hearing.

1. This Tribunal is required to review the matter on the merits in accordance with s 34 of the SACAT Act 2013. In doing so, the Tribunal is required to apply the law as it is at the time of this review. In other words, this review must be determined in accordance with the provisions of the Firearms Act 2015.[1] It is the criteria set out in that Act that apply.
2. Having said that, the result of this case would have been the same, in my view, if it had been determined under the old Act.
3. The Tribunal must have regard to the material that was before the delegate, but also has a discretion to receive additional evidence. The respondent was content to rely on the material before the delegate but I allowed the applicant to give and produce additional evidence. I will consider that evidence in this decision.
4. The Tribunal must give appropriate weight to the decision of the delegate and I acknowledge the delegate's knowledge and experience in matters concerning public safety, policing and firearms. In the end, however, the Tribunal is required to review the matter on the merits and come to the correct and preferable decision.
5. Section 3 of the Act sets out the principles and objects of the Act. The following provisions are of particular relevance to this case:

(1) The underlying principles of this Act are -

(a) to confirm firearm possession and use as 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, use, acquisition, supply and manufacture of firearms; and

(ii) by promoting the safe and responsible storage, transport and use (whether for recreational or other purposes) of firearms; and

(c) to facilitate a nationally consistent approach to the control of firearms.

(2) The objects of this Act are as follows:

(d) to provide strict requirements that must be satisfied in relation to firearms and transactions and activities involving firearms, including requirements to ensure the safe and secure storage and transport of firearms;

(g) to minimise the risk of persons becoming victims of crimes involving the use or threatened use of firearms;

(h) to minimise the risk of persons causing injury or harm (including psychological harm) to themselves or others by the use or threatened use of firearms.

1. Section 15 of the Act sets out the bases upon which a firearms licence may be refused. Relevantly, s 15(1) provides that:

The Registrar may only refuse an application for a firearms licence if the Registrar is not satisfied -

(b) that the applicant is a fit and proper person to hold the licence; or

(e) that the applicant has, in respect of any licence held by the applicant (whether under this Act or the repealed Act) complied with or satisfied the requirements of this Act or the repealed Act (as the case requires) or the conditions of the licence; or

(f) that the applicant will comply with or satisfy the requirements of this Act or the conditions of the licence; or

(l) that to grant the licence would be in the public interest.

1. Section 7 deals with the concept of fitness and propriety. Relevantly it states:

(3) A person may be taken not to be a fit and proper person for a purpose under this Act if the person -

(a) has not complied with the requirements of this Act in relation to the safe handling, use, storage or transport of firearms; or

(b) has been found guilty of an offence under this Act, the repealed Act or corresponding legislation of another State or Territory of the Commonwealth; or

(c) has been found guilty of an offence involving actual or threatened violence in South Australia or any other State or Territory of the Commonwealth or in any other part of the world; or

(d) has been found guilty of an offence as prescribed by the regulations; or

(e) has been found guilty of fraud or deception for the purpose of obtaining a licence or permit under this Act or under corresponding legislation of another State or Territory of the Commonwealth; or

(f) is the subject, or has in the past been the subject, of -

(i) an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009 or any other order of a similar nature made by a court whether in this State or any other State or Territory of the Commonwealth; or

(ii) a foreign restraining order; or

(g) has failed to comply with a requirement made under section 53.

(4) In deciding whether a person is a fit and proper person for a purpose under this Act -

(a) regard may be had to the reputation, honesty and integrity of the person, close associates of the person and any people with whom the person associates; and

(b) regard must be had to -

(i) any risk of the person using a firearm for an unlawful purpose; or

(ii) any risk of the person using a firearm to harm himself or herself; or

(iii) any risk that the person will cause injury or harm to another by the use or threatened use of a firearm; or

(iv) any risk of the person failing to exercise continuous and responsible control over a firearm,

and, in that connection, regard may be had to the person's past behaviour, instability, intemperate habits, way of living or domestic circumstances.

(7) This section does not limit the grounds on which a person may be taken not to be a fit and proper person for a purpose under this Act.

1. The applicant was born on 15 March 1962.
2. The delegate had before him information in relation to previous offending by the applicant. I do not propose to set out that information except insofar as I perceive it to be relevant to my decision in this matter.
3. I will refer to the police information and the explanations that the applicant gave to me.
4. On 17 August 1992 the applicant was found guilty and convicted of four charges in the Broken Hill Local Court. The offences were committed on 18 July 1992 and were for possessing a firearm on enclosed lands, firing a firearm on closed lands, possessing a prohibited object and failing to produce a firearms licence.[2] The applicant, who was then 30 years of age, was attending a camp with a group of scouts. He took his rifle and allowed the youths to fire it across the river. It turned out that the place was part of a fauna reserve. He pleaded guilty to the charges.
5. On 20 October 2007 police attended to conduct a search at the applicant's home address. In the top drawer of the bedside chest of drawers police found a silencer for a rifle along with assorted ammunition. In the bottom drawer they found a large quantity of shotgun shells. In the top cupboard of the wardrobe, they found an unsecured shotgun in a wooden case. Hanging in the wardrobe was a shooting vest with shotgun shells attached to the front. The shotgun was unregistered. The applicant told police that it had been his father's. He admitted purchasing the shotgun shells.[3]
6. The applicant explained to the Tribunal that the 4/10 shotgun was a "snake gun". It was less powerful than other types of shotgun and would cause less damage. He had the firearm unsecured as he and his ex-wife would use it to shoot snakes on his property. This was initially at the insistence of his ex-wife although the shotgun remained unsecured for some 22 months after his wife had left. His other firearms were secured. The applicant stated that he was unaware of the requirement that his ammunition be secured. He admitted that this information was contained in the "fine print" on his licence but he had not read that.
7. In respect of these matters, the applicant was convicted in the Mt Barker Court on 7 May 2009 with failing to keep a firearm secured and failing to keep ammunition in a locked container. The applicant was allowed to retain his firearms and licence.[4]
8. In the meantime the applicant had committed and been convicted of the offence of driving whilst his driving licence was suspended. The offence occurred on 14 August 2008 and he was convicted on 24 March 2009.[5]
9. The applicant explained to the Tribunal that he had arranged for his mother to drive his daughter to a parent-teacher interview but his mother advised at the last moment that she could not do so. The applicant knew that he was not permitted to drive but chose to do so in order that his daughter would not miss the interview. He said that he decided to "run the gauntlet".
10. On 24 September 2010 police again searched the applicant's home address. Police located three firearms in the shed that were not registered to the applicant. One was previously registered to his deceased father, one previously registered to a deceased relative and one had never been registered.[6]
11. The applicant told the Tribunal that he had inherited all three firearms from his uncle and father who had died 13 and 15 years previous. He believed that all three firearms had been registered to his uncle and father but knew that he was required to have them registered in his name. Indeed police wrote to him on 27 August 2009 about the need for him to register one of the firearms. The applicant gave evidence of some attempts to register the firearms but they remained unregistered on 24 September 2010 when the police visited.
12. The applicant was convicted in the Mt Barker Court on 16 June 2011 of two counts of being the owner of an unregistered firearm and one count of possessing an unregistered firearm.[7]
13. Following these convictions the applicant's firearms licence was suspended on 18 July 2011 and cancelled on 22 August 2011. The applicant sought a review of that decision by the Firearms Review Committee but the decision was affirmed on 18 January 2012. The applicant then appealed to the District Court against the decision. In a judgement delivered on 7 September 2012 the Court dismissed the applicant's appeal.[8]
14. As to the offence concerning the shotgun, the Court commented[9] that:

"The added difficulty he faces, in respect of this breach however, is that he and his wife had separated in 2005, yet the shotgun had remained unsecured, for at least 22 months by the time police visited on 20 October 2007.

The appellant conceded that it was not a mere oversight - he deliberately left the firearm unsecured so as to protect his family and animals from snakes."

1. As to the later offence concerning the unregistered firearms the Court referred to the attempts to register the firearms but commented[10] that a "long time" had elapsed after the letter from the police.
2. The Court also referred[11] to the submission of the Registrar's counsel that the offence of driving whilst his drivers' licence was suspended was indicative of a disregard for his legal responsibilities.
3. The District Court stated as follows:[12]

"In determining whether it was appropriate to cancel the licence on 22 August 2011, the overriding consideration is that of ensuring the public safety. The fitness and propriety of the appellant had to be seen in the context of the Act and the Regulations.

In Offe v The Police[13] Gray J warned that the community must not be complacent about the dangers of firearms, and relevantly the real danger to 'unsuspecting children and persons who may happen upon them accidentally...so that only responsible persons with appropriate licences are able to access such firearms'."

1. The District Court concluded as follows[14]:

"Ultimately I have concluded that the appellant's decision to leave the 410 shotgun unsecured in the bedroom for such a long period of time is inconsistent with the responsibilities prescribed by the Firearms Act upon responsible licensees. It is not for the appellant to pick and choose when and whether he will comply with those obligations.

...

In my opinion, in light of the breach of the Act and conditions in failing to secure the 410 shotgun on 20 October 2007, and indeed deliberately failing to do so, when coupled with the other matters to which I have referred, the finding of unfitness and impropriety to continue to hold a firearms licence at the present time was inevitable." (Emphasis added)

1. Despite being provided with such clear explanations from the District Court judge, the applicant subsequently wrote to the Registrar indicating that he was "amazed" that his licence had been revoked and his guns removed.[15] He suggested to this Tribunal that it was like "using a sledgehammer to crack a walnut" and that "there should be a better system". It did not appear to me that the applicant understands the need for strict regulation of firearms or the need for strict compliance with the legislation.
2. The District Court made the point that the convictions should not be held against the applicant indefinitely. It referred to the principle that a person can change over time and that with a period of no offending the applicant might be able to demonstrate that he was again a fit and proper person to hold a licence.[16]
3. This undoubted principle has to be understood in the context that the burden of demonstrating fitness and propriety lies on the applicant for a licence. Where relevant flaws in character, attitude and behaviour are demonstrated by past events, it is for the applicant to provide clear proof that the applicant is now a different person such that the pre-existing flaws no longer should be a barrier to holding a licence. A lapse of time with no further offending is relevant to this but not determinative.[17]
4. Although the District Court judgement does not say so, the applicant indicated to the Tribunal that the District Court judge had stated that if he didn't commit any offences for two years, he could apply again for a licence. The applicant said to me: "I did apply", seemingly expressing his frustration that the licence had not been granted. This is somewhat disconcerting as it appears to overlook the fact that the applicant had not avoided further offending. Within eight. months of receiving the judgement of the District Court the applicant again committed a firearms offence.
5. Police attended the applicant's home on 15 April 2013. The applicant presented to them a box of .22 ammunition which he had stored in an unlocked cupboard. According to police documentation,[18] he advised police that this box had been "missed" by police on their previous search. Police also found a .22 rifle concealed in the shed. The applicant denied any knowledge of this firearm and suggested that he had been set up, possibly by his ex-wife.
6. The applicant was charged with several offences but eventually pleaded guilty in the Mt Barker Magistrates Court on 23 April 2014 to one charge only. The other charges were withdrawn. The applicant was convicted of failing to store ammunition in a locked container. He was fined $450.00 plus costs.
7. The applicant appealed to the Supreme Court against the conviction and penalty. The Supreme Court dismissed the appeal on 20 August 2014. The Court received an affidavit from the solicitor who had entered the guilty plea on the applicant's instructions. This confirmed that he had instructed her to plead guilty on the basis of the following statement of facts.[19]

"At about 2pm on Monday the 15th April 2013, police attended at 12 Rankine Street, Clayton Bay, in relation to a firearms search after information had been received indicating firearms were on the premises. Whilst at that location police searched a shed at the rear of the residence and located a .22 calibre rifle and a box of .22 calibre ammunition. Both those items were insecure; the rifle was located wrapped in cloth behind a box and the ammunition was on a shelf in an unlocked cupboard. The firearm and ammunition were seized by police, however the seized firearm is not the subject of the charge currently before the Court. When spoken to by police the defendant declined to answer questions in relation to the seized items."

1. The applicant told the Supreme Court that the box of ammunition had been "given to him by a neighbour for safe-keeping"[20]. He initially advised the Tribunal that the ammunition had been given to him about one or two months before the police visit by a neighbour. When asked to identify the neighbour, he said it was Paul Vickery. He then quickly retracted that statement and said that he could not recall who gave the ammunition to him. He then said that he had intended to give the ammunition to Paul Vickery as he (Paul Vickery) had firearms. However, time went by and he did not get around to doing so before the police arrived. It seems strange that the applicant would have intended to give the ammunition to Paul Vickery if another person had given it to the applicant "for safe-keeping", as he had told the Supreme Court. In any event, the applicant agreed that the ammunition had been left unsecured for 1-2 months. He was well aware that it was required to be secured. He maintained the position that he knew nothing of the .22 rifle. He said that he had been set up. As to his refusal to answer question from the police, he indicated that he did not trust them.
2. I find the applicant's evidence as to these events unconvincing. I do not accept that he knew nothing of the rifle. I have a strong suspicion that he was knowingly in possession of the rifle and had the ammunition for use in the rifle. However, even if that is not the case, the failure to secure the ammunition for a period of 1-2 months demonstrates that the applicant had learnt little from his previous offending. He was still complying with the regulations only when it suited him.
3. Within two weeks of the Supreme Court decision to dismiss his appeal, the applicant applied for a licence. His application was refused. The current application was made on 12 August 2016. The applicant wrote on the application form.[21]

"I have not committed any crimes (except minor speeding fine 14kph? Over limit) for a long time. The last offence I denied - on grounds that I didn't have any guns and all ammo had already been confiscated."

1. This was an obvious reference to the offence referred to in paragraphs 40-44 above. The applicant had pleaded guilty to this offence and admitted the facts as set out above. He admitted to the Tribunal that he had left ammunition unsecured for 1-2 months. Yet he regards this as not having committed any offence. It is an offence to have unsecured ammunition even if there are no firearms in the vicinity.
2. The applicant gave evidence about his background and interests. He produced references from reputable persons.[22] The applicant obviously has many positive attributes. He has served in the CFS and the Navy Reserve. He has been an active contributor and participant in many activities within the Latvian community including sport, dancing, singing and scouting. He is apparently well regarded in that community. The referees state that he is a person of high ideals and principles. The Tribunal has regard to this positive evidence of good character.
3. I also accept the evidence of the applicant that hunting has played a major part in his life and remains an important link with his Latvian cultural heritage. I understand that he wants to obtain a firearms licence so that he can participate in this way as he has done in the past. I accept that this is the genuine reason for his application. The applicant gave evidence that he had never misused his firearms and had always hunted in accordance with the law.
4. The evidence does not suggest that the applicant is generally a person of bad character. The evidence does not suggest that he is likely to use firearms for any criminal or anti-social purpose. However, that does not mean that he is a fit and proper person to hold a licence. It is plain from the provisions of the legislation that licences are only to be granted to persons who can be trusted to comply with all aspects of the legislation and to be responsible at all times in the storage and handling of firearms and ammunition. The applicant has shown on various occasions and in various ways that he is not such a person.
5. As indicated the applicant appeared to not understand why his past behaviour might be regarded as preventing him from having a licence. He sought to justify that behaviour as unintentional and non-malicious in nature and therefore as conduct that should not unduly concern the authorities. Rather than acknowledge any need to learn the legislative requirements and comply with them he sought to explain his conduct by saying that he wasn't perfect and could not be expected to know all the laws. The attitude expressed in his evidence did nothing to assure the Tribunal that his approach and conduct in the future would be any different from what it has been in the past.
6. The applicant was also forthright about his dislike for and distrust of the police. He referred to them in evidence as "the Gestapo" and as "the tools". He volunteered that he could not change his attitude to them. This attitude has featured in various interactions with police which are referred to in the evidence. The Commissioner of Police is the Registrar of Firearms and it is important that licensees cooperate with the authorities in respect of firearms matters. Whilst the applicant's attitude and behaviour in this specific regard may not be determinative of this matter, it does not assist the applicant's cause in seeking to persuade the Tribunal that he is a fit and proper person.
7. The Tribunal does not overlook the applicant's attachment to the firearms he had inherited from his father and uncle or his desire to honour the hunting traditions of his Latvian family. Similar considerations arose in the case of Pollitt v Police [2001] SASC 382 where Gray J stated (at [25]:

"Any status that the firearms may have as rare and valuable family heirlooms is outweighed by the public interest in ensuring the firearms are stored safely and securely.

...

The firearms were not secure in accordance with the safeguards prescribed in Regulation 29 of the Firearms Regulations, and requiring strict compliance with this provision is important to ensure that Parliament's clear intention is served."

1. In Davies v Registrar of Firearms [2005] SASC 149 at [23] Gray J stated:

"There is a clear need for the provisions of the Firearms Act 1977 and regulations to be complied with. It is important that the community generally is aware of the need for careful and strict compliance. The legislative scheme for gun control requires compliance for its efficacy. Compliance with the Act and Regulations may cause a degree of inconvenience but the dangers of poor gun control are too evident in our society for matters of non-compliance to be disregarded or overlooked."

These comments have been approved in applied in subsequent cases[23]. They apply with equal or greater force to the current Act and Regulations.

1. In summary, the applicant falls a long way short of satisfying the Tribunal that he is a fit and proper person. The mere fact that he offended again within eight months of the District Court judgement suggests that he had learnt little. His evidence as to that occasion of offending was unconvincing, but even if it is accepted it demonstrates a continuing slackness of attitude and behaviour in respect of the requirements of firearms legislation. The applicant is now 56 years of age. His attitude as expressed in evidence before the Tribunal suggests that he may never gain the appropriate insight so as to modify his approach and his behaviour.
2. However, the issue before the Tribunal is his fitness and propriety at the present time. The Tribunal has no doubt that this is lacking and that the Registrar was correct to refuse the grant of the licence.
3. Ms Dellit raised issues arising from medical evidence tendered to the Tribunal by the applicant. In view of the Tribunal's findings as to fitness and propriety, it is not necessary to consider those matters. Nor is it necessary to address issues arising from the categories of licence sought.
4. I also note that I have not referred to all of the evidence relied on by the Registrar. It is not necessary to do so as the matters I have referred to are conclusive of the matter.

[1] Breeding v Registrar of Firearms [2017] SACAT 40 at [6].

[8] Balodis v Registrar of Firearms [2012] SADC 113.

[13] [2002] SASC 301; (2002) 84 SASR 72 at 76.

[16] At [53-54; 58] and note the cases cited.

[17] Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR(NSW) 448 per Walsh JA at page 448; applied by the Court of Appeal in Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637.

[19] Balodis v Police [2014] SASC 26 at [9].

[20] [2014] SASC 26 at [6].

[23] Police v Losapio [2007] SASC 112 at [21]; Zammitt v Registrar of Firearms [2010] SASC 100 at [37-38].