Weapons Prohibition Act 1998.
Cases Cited: BY v Director-General, Attorney-General's Department [2002] NSWADT 79
Source
Original judgment source is linked above.
Catchwords
Civil and Administrative Tribunal Act 2013Crimes (Sentencing Procedure) Act 1999Firearms Act 1996Weapons Prohibition Act 1998.
Cases Cited: BY v Director-General, Attorney-General's Department [2002] NSWADT 79Bottomley v Commissioner of Police, New South Wales Police Force [2005] NSWADT 211Briginshaw v Briginshaw (1938) 60 CLR 336Cook v Commissioner of Police, New South Wales Police Service [2002] NSWADT 223Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60Hardy v Commissioner of Police, New South Wales Police Service [2006] NSWADT 218Health Care Complaints Commission v Do [2014] NSWCA 307Hijazi v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 148Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218Huckel v Commissioner of Police, New South Wales Police Force [2008] NSWADT 347Jarod Lee v Commissioner of Police, New South Wales Police Force (NSWCATAD) 22 May 2014 ex temporeLee v Director of Public Prosecutions 2014/54362, 1 April 2015 ex temporeLee v Health Care Complaints Commission [2012] NSWCA 80McDonald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 358
New South Wales Bar Association v Meakes [2006] NSWCA 340
Judgment (4 paragraphs)
[1]
The applicant's approach to the legislation
The respondent's second general criticism is of what was termed the applicant's "chop and change mentality" as illustrating his lack of regard for the requirements of the Act, "because the Act is not structured to allow a 'chop and change' mentality…A licence holder cannot use a firearm for two purposes and comply with the lesser obligations".
The respondent points out that under s 7(2)(a) of the Act, a licensee may not use a prohibited firearm or pistol for any purpose otherwise than in connection with the purpose established by the person as being the reason for possessing or using it. The list of licence categories in s 8(1) makes it clear that the licensee may use a firearm of the kind to which the licence applies only for the purpose established by the licensee as being the reason for possessing or using it.
While a licensee whose reason under s 12 for holding a licence is firearms collection would thus not be authorized to use a collection firearm for recreational hunting or vermin control, that is a consequence of the nature of the reason for the grant of a licence. The question will always be whether the particular activity engaged in by the licensee at the relevant time is permitted under the terms of the licence or licences that he or she holds.
As Mr Price argued in his written submissions, it is possible to be doing more than one thing at the same time and relying on more than one licence or genuine reason in relation to a single activity. For example, testing a firearm could also amount to practising with it, or "sighting it in" for the purposes of hunting or professional contracting. And there would be no legal barrier to filming that activity, whether live ammunition was being used or not, just as one could film oneself hunting and killing a fox and posting the footage on YouTube, provided that the right licences and authorities were held. To the extent that this is seen as problematic it is more a function of the firearms legislation's complexity than of any improper practices by licensees. In the applicant's case it was compounded by his concern to cover himself against infringing the legislation by seeking every conceivable licence and permit.
I therefore consider that to postulate a general statutory bar on "chopping and changing" between licences is too broad a proposition to be sustainable.
[2]
The incidents relied on by the respondent
I now turn to a consideration of the incidents listed in the respondent's schedule in the order in which they appear, summarizing the parties' respective propositions and giving a finding in relation to each one.
Failure to comply with storage obligations. Item 1: Three incidents are listed under this heading. The first is that in May 2000, the applicant left firearms unsecured in contravention of ss 39 and 40 of the Act. They were stolen from his vehicle. The respondent submits that this conduct demonstrates a past lax attitude to compliance with storage obligations. The applicant responds that he was the victim of a crime when his locked and secured vehicle was broken into within the confines of his residential premises, despite his taking all reasonable safety precautions. The matter was reported to police and no charges or breaches were instituted. Nevertheless, that was indeed a breach, although it occurred 15 years ago.
Item 2. In about June or July 2013, the applicant stored two CZ Scorpion firearms, each one with a single live round in it. This, the respondent submits, also demonstrates a lax attitude to compliance with storage obligations. DS/Const Townley in his statement of 15 May 2014 describing the police audit of the applicant's Heraghty property on 16 July 2013 records that he was handed the Scorpion from one of the applicant's safes and passed it on to an officer from the State Crime unit to render it safe, as he did not know how to. A live round ejected when the action was cycled (exhibit R2, p 162). In oral evidence it emerged that in each case the live round was jammed sideways in the breech, making the gun inoperable. The applicant states that he provided that explanation to police at the time and as a result was not charged with any safe storage offence relating to the gun or the ammunition.
The respondent relies on that incident and the applicant's acknowledgement that it would not have been lawful to store ammunition with the gun as an admission that he had committed a breach. In my view that would entail a strained and artificial interpretation of "stored" in s 40. The two cartridges were not in the guns for the purposes of storage, in the ordinary sense of being kept for future use (which would have been dangerous or impossible in any event), but because the weapons had malfunctioned and the rounds had not ejected. I conclude that the incident in question involved no breach of the safe storage provisions. At the same time, it does appear that the applicant may have put the CZs away without performing the standard safety precautions, which would have revealed the presence of the jammed rounds. That in itself would constitute a lapse from basic gun safety practices which reflected poorly on the holder of a dealer licence and might have constituted a breach of cl 52(6)(a), which requires firearms held under a theatrical licence to be "maintained in a safe condition". That point was not argued, however.
[3]
Overall evaluation
Analysis of the evidence and submissions has considered each of the items relied on by the respondent in turn. It will be seen that of the 28 items, 14 have been established. Another 7 have also been established, but are not of a serious nature. One of them, the breach of the storage requirements at the Heraghty property of the theatrical licence firearms stored in safes in the Colourbond shed, involved a facility that had been approved by police who were authorized to do so. The finding of a breach in those circumstances, though legally required, is rather harsh. The remaining 7 items have not been made out.
The Act's overriding principle as set out in s 3 is the ensuring of public safety. That consideration outweighs that individual's claim to possess and use a firearm: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218, [24]; Huckel v Commissioner of Police, New South Wales Police Force [2008] NSWADT 347.
In the present case there is no evidence of any egregious safety lapses, with the possible exception of the "birthday party" episode. But the prevention of actual instances of dangerous conduct is not the only object of the Act. As s 3(1)(b) makes clear, it also seeks to improve public safety by imposing controls on firearm possession and promoting their safe storage. Other explicit objects include s 3(2)(b), "to establish an integrated licensing and registration scheme for all firearms" and s 3(2)(d), "to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms". The public interest requires that all licensees be aware of, and comply with, the legislative requirements: Cook v Commissioner of Police, New South Wales Police Service [2003] NSWADT 30. The public needs to be able to feel confident that those who are granted a firearms licence will comply with the legislative requirements: Morris v Commissioner of Police, New South Wales Police Service [2002] NSWADT 223.
The evidence shows the applicant to be a man of good character and a pillar of the Parkes community. He has no associations with questionable elements. While his record is not unblemished, he receives strong support from prominent referees, the mayor of Parkes Shire, Councillor Ken Keith OAM, Bishop Westcott and the Hon. Robert Borsak MLC, thus comprehending representatives of community, church and state. I have explained above the reasons for accepting these references on their individual merits. The applicant also featured in a prominent role in an SBS reality television series, Living with the Enemy (episode 5), from which he emerges in a favourable light. His contraventions for the most part stemmed from his pioneering of a new business model, of which he was able to make a success, of using YouTube clips to promote his various enterprises.
[4]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 03 December 2015
Parties
Applicant/Plaintiff:
Lee
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
Cases Cited (12)
The tribunal's role
Under s 63 of the Administrative Decisions Review Act 1997, the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77. The proceedings are non-adversarial in nature and there is no onus of proof in the sense that it applies to other legal proceedings: Hardy v Commissioner of Police, New South Wales Police Service [2006] NSWADT 167.
The tribunal has jurisdiction to exercise any functions conferred or imposed on it by the Civil and Administrative Tribunal Act 2013 (s 29) and the Firearms Act, including the Commissioner's refusal to issue a licence (s 75(1)(a)). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 358, 357. As the use of the word "may" in ss 11(7) and 24(2) makes clear, the Commissioner (and by extension the tribunal) has a discretion whether or not to issue or revoke a licence. The Act provides no explicit guidance on how the discretion should be exercised, however. Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is a "privilege that is conditional on the overriding need to ensure public safety". Consistently with that approach, the Act confers on the respondent the power to revoke or refuse to issue a licence in circumstances where it is considered that the holding of a licence is not in the public interest. The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities, to the standard enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336.
Item 3: Non-compliant storage of firearms under Theatrical Dealer's Licence. An inspection at the Heraghty property on 16 July 2013 by S/Const Jackson and other police, the respondent submits, disclosed non-compliance with safe storage requirements. Under s 19(1) of the Acts, a licence may be issued subject to such conditions as the Commissioner thinks fit to impose, and pursuant to that authority the Commissioner has established levels of safe storage from level 1 to level 9. The requirements for a theatrical licence are the same as for a dealer's licence, namely level 7. The Firearms Registry fact sheet on level 7 safe storage (version 1.2, April 2012) states inter alia that the storage premises must be a permanent structure, "not sheds or garages", and all external walls must be of solid structure consisting of concrete, brick or steel. On inspection (see photographs exhibit R3), it was found that the structure housing the guns was built of Colourbond steel panels secured with external bolts that could easily be undone with a small spanner or screwdriver (exhibit R2, para 117). The internal structure dividing the storage room from the adjoining garage was made of plywood panels (exhibit R1, tab 12a).
The applicant responds that the police had previously inspected the premises and no issue was taken with the Colourbond steel construction. Further, as the fact sheet was not promulgated until several months after the applicant applied for the permit (no copy of the previous fact sheet was produced), the applicant had no reason to be aware of the (possibly changed) requirements at the time he was making his storage arrangements (TS 29 July, lines 1333 to 1342). All firearms were stored in approved safes within the building and no charges or breaches were ever brought against the applicant in relation to this matter.
The applicant's evidence on this point was not disputed, and in practice it is understandable that he thought himself entitled to rely on the results of the police inspection. But as a matter of law he was not. In a case involving a similar police inspection approving non-compliant storage arrangements, the tribunal stated that the obligation is personal on the licensee and is not affected by the outcome of past inspections: Hijazi v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 148, [22]. I conclude that this incident constituted a breach of the permit conditions.
Incidents relating to expiry of licences. Item 4: The applicant does not dispute that in April 2004, he was in possession of unregistered firearms while unlicensed following the expiration of his firearms licence, but says that it was due to bureaucratic miscommunication and that he renewed it at the first available opportunity. The three unregistered firearms were in the process of being registered in the possession of the applicant and were subsequently surrendered to police. Nevertheless, this was a contravention of s 7 and indicated a lax attitude to licensing requirements, particularly after the police warning he received in relation to Item 1 in 2000.
Item 5: From 15 March to 1 June 2008, he operated a paintball business and held 21 paintball guns while unlicensed (exhibit R2, paras 52 and 53). The s 4 definition of "firearm" includes an airgun, and cl 3 of the regulation defines a paintball gun as an airgun. The applicant admits the resulting breaches of ss 7A(1) and 36, but explains that he overlooked the permit's expiration because he was engaged in excessive travel at the time. The matter was rectified immediately it was drawn to his attention. He had not, however, promptly transferred the paintball guns to his dealer licence. He had invited the police to impound them, but they had not wanted to take them and said they were covered by his dealer licence and his paintball licence renewal was being processed. Nevertheless, the incident shows a certain casualness of attitude towards compliance with obligations as a permit holder, not least in light of Item 6 below.
Item 6: From 16 March to 20 April 2013, he operated a paintball business and held 64 paintball guns after his permit had expired. While admitting this contravention, the applicant states that it went undetected because of a miscommunication with his bookkeeper and was rectified immediately it was brought to his attention. He concedes that he should have transferred the guns to his dealer permit at once.
The breach noted in Item 5 was thus not an isolated incident and the respondent correctly points out that it confirms the impression that the applicant took a cavalier attitude to the regulatory scheme. The incident did not, however, entail any significant threat to public safety. The guns were at all times under lock and key. Paintball guns or "markers" are not in fact firearms, being powered by compressed air or carbon dioxide. The applicant pointed out, and it was not disputed, that they are designed not to cause injury (provided eye protection is worn) and could not be mistaken for a firearm because of the large air tank on top; nor is there any known case of a paintball gun being used in the commission of a crime. But they fall within the statutory definition in s 4 of a "firearm" and were covered by restrictions with which the applicant was bound to comply.
Contraventions of the Act, WP Act and regulations. Item 7: Between 2010 and 2012, the applicant created theatrical productions using firearms (and live ammunition) without holding the appropriate licence or permit. The respondent relied on two clips, "I'll give up my guns" (July 2010) and "Time to get a gun" as showing contraventions of s 7A(1) and (2) by virtue of using a firearm without a licence or permit for which it was used, and contrarily to the purpose of his personal licence. S/Const Jackson stated that the applicant lacked a theatrical armourer's permit under s 28(c), and that even if he had held one, he would have contravened cl 52 by using live ammunition in his firearms (exhibit R2, lines 60 to 63, 65 to 69).
The applicant states that he was using a theatrical company to film him shooting A and B category firearms and that the activity, though admitted, did not amount to a breach of the legislation because it constituted practice and weapon familiarization "in connection with" (within the meaning of s 7(2)(a)) his genuine reasons for holding those firearms.
Whether or not s 7(2)(a) implies a "dominant purpose" test similar to that used in other legislation, the provision's clear implication is that the focus must be on the actual activity being engaged in. While in a sense any aimed shooting could be described as "practice", the usual meaning of the term is a somewhat organized activity using targets that will register the fall of shot and the effect of any adjustments to the shooter's aim. In the videos in question it is clear that the activity being engaged in is not practice, but the making of a video that is intended to be entertaining.
That does not quite conclude the matter, however. The Act contains no definition of "film or theatrical productions or other artistic purposes" in s 28(c) and was enacted before the advent of YouTube, Facebook and similar applications. The applicant said that the Firearms Registry had told him he needed no theatrical permit to make the videos, but the registry states that it has no record of such an assurance (exhibit R6, para 12)..
An interpretation of the Act that, for example, required two friends who video each other on a hunting trip to obtain a theatrical permit before they could lawfully post their clip on YouTube would appear to give rise to an absurdity that the Legislature could not have intended. On the other hand, it would seem anomalous if a commercial film production could be kept exempt from the theatrical permit provisions simply by distributing it only through YouTube. It has also been argued that if the only persons handling guns in the film production are persons licensed to use such weapons, the theatrical licence would not be needed and would only be required if actors who did not hold licences were to be handling them. Drawing the dividing line might be a matter that would repay legislative attention. In the meantime, however, it seems reasonable to conclude that the applicant's creation of these videos came within the theatrical permit provisions, as the respondent contended. They were not simply home videos of the applicant shooting. They were scripted productions for which the applicant engaged a commercial production company to make a professional-looking product, with proper titles and editing, which could be used, and was used, to promote the applicant's businesses in the firearms industry. Further, the applicant describes himself as "producer" of music videos and similar works.
I therefore conclude that the applicant created the productions without holding the appropriate licence or permit. Whether the use of live ammunition would have constituted a separate breach of the permit conditions in cl 52 is purely hypothetical as the applicant held no theatrical permit at the time.
Items 8 and 9: Operating an unapproved shooting range between 20 April 2012 and 16 July 2013, in breach of cl 85 and using firearms on an unapproved shooting range. S/Const Jackson inspected a firing range on the applicant's Staircase property on 17 July 2013 which had never been the subject of an application for, or approval to, operate it, nor had it been approved by the local council as required by cl 86. The applicant had stated that the range had been approved by Sgt Colin Boggs, but local police do not have the authority to approve a range and Mr Boggs (who is no longer on the force) cannot recall doing so. The range was found to be defective in several respects and unsafe for users and members of the public. There were no stop butts or backstop behind the targets, there were numerous metal targets on the range creating the potential for ricochets or splashback of bullet fragments, there was no mechanism for controlled shooting to prevent shooting left and right, or up and down and the range was in close proximity to the paintball games areas. It would never have qualified for permission to operate as a range (exhibit R2, paras 80 to 90; exhibit R1, tab 12a). Two of the applicant's videos showed him using the range, firing an M14 and a .45 pistol (exhibit R2, paras 33 to 39). The applicant was charged with, and pleaded guilty to, operating an unapproved shooting range and two counts of using a firearm on an unapproved range. The Local Court gave him an 18 months bond under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, but on appeal the District Court set aside the conviction and made an order under s 10(1)(a) of that Act.
The applicant initially took the position that as he was using the test facility under his dealer's licence, the range did not require approval. He expressed some doubts as to whether he should have pleaded guilty to the charges. He also said that the range was not unsafe as it involved firing into a gully and there was a large wooded hill behind the target area. In his reasons in the NCAT hearing involving his son's appeal in relation to the same incident (Jarod Lee v Commissioner of Police, 22 May 2014, extempore decision) Montgomery SM had concluded that "there was nothing obvious in terms of what Mr Lee was doing that presented a danger to the public" (at p 50).
Since then, however, the applicant has admitted the breach and says he now fully understands his obligations under that section of the Act. The breaches in question appear to me to indicate a lack of detailed knowledge of the relevant statutory provisions at the time and a rather self-serving assertion of incorrect interpretations of his obligations. They count against the applicant on the question of the public interest.
Item 10: Between 12 August 2012 and 30 January 2013, the sale as a firearms dealer of a prohibited firearm (an H&R M14) to himself personally, when he had no permit or licence for it. The respondent states that the rifle was prohibited under item 5 of schedule 1 to the Act as a "self-loading centre-fire rifle of a kind that is designed or adapted for military purposes" (exhibit R1, tab 10 r,s,t).
The applicant submits that this was an internal transfer from one licence held by the applicant to another licence held by him. It was a technical transfer completed on advice from Mr Barney Jenkins, then of the Firearms Registry, in order to initiate a review of the decision to re-categorize that particular model of M14 as a prohibited weapon. He said that the Firearms Registry had until recently accepted rifles such as SKSs (an AK 47 variant), M14s and M1 carbines and many other military semi-automatics as registrable to individuals with class D authority, and many still remain registered. Specifically, as the M14 is legal for category D holders in other states, he did find an interstate purchaser for the rifle in question, and at the customer's request test-fired it on his test facility.
The respondent replied that Mr Jenkins is no longer employed at the Firearms Registry and that there is no record of the conversation described. Schedule 1 to the Act has not been amended in any relevant respect. S/Const Jenkins doubted that the applicant would have been told to put the acquisition of the M14 through the system. He also did not accept that the registry had changed its definition of a prohibited firearm. He explained that the registry makes an assessment of whether a firearm is prohibited or not on the information provided by dealers when registering, acquiring and selling it. If the dealer does not provide correct details about a firearm, it is possible that the registry may form the view that it is not prohibited when it is, or vice versa (exhibit R6, paras 16 to 22).
The respondent did not, however, dispute that in the past numbers of possibly military-type rifles of certain brands had been registered under category D and remain so. Nor was it suggested that the applicant had ever supplied incorrect details to the Firearms Registry.
On balance there is no reason to reject the applicant's account of the events (exhibit A2, annexure 22). It seems unlikely that the applicant would have fabricated that series of communications, knowing that the registry's records could be, and probably would be, checked and that Mr Jenkins might still be called as a witness. His version is corroborated in part by his letter to the registry's D class committee of 4 December 2012 (exhibit R1, tab 10y) in which he states, "I spoke to Barney about this and he informed me that if I put the firearm through the system it would go for review before a panel and that is what I am now doing". That statement was not contradicted or challenged at the time. Some of Mr Jenkins's records could have been misplaced when he left the registry.
Over the past century, many civilian sporting versions have been produced of military rifles such as the Lee-Enfield, Mauser, Springfield and Mannlicher. No doubt the same is true of more modern self-loading types. Certainly, the M1 carbine is apparently still in production as a sporting rifle. Whether such a sporting version, with full-automatic capability removed and other modifications for civilian use, could still be described as a firearm that "is designed" for military purposes might legitimately be a matter for debate. As the applicant's correspondence with Mr Ron Owen, importer of the Maegun, a sporting version of the AK 47, shows, it can be difficult even to identify such a firearm correctly (exhibit A2, annexure 26).
Further, the multiplicity of firearm designs and types creates significant scope for incorrect classifications and designations, even in the registry. Thus, the respondent's evidence and submissions consistently describe the M14 as a "World War II" rifle when, as can readily be ascertained, it is not. It was designed in the 1950s and entered service for the first time in 1957.
Even accepting Mr Lee's account of his communications with Mr Jenkins, however, it does appear that he performed an unauthorized transaction by transferring the M14 from his dealer stock to his personal class D licence after being informed that it was a prohibited weapon which he had no authority to possess under that licence. D/SConst Jackson's first statement (exhibit R2) relies on the analysis of that transaction by Mr Laurie Campbell (exhibit R1, tab 10), who was not available to give evidence because of sickness. Mr Campbell related how the applicant had "disregarded all this advice and disposed of the M14 prohibited rifle to an unauthorised category D licence holder, himself. This may constitute an offence under section 7 of the Firearms Act 1996. Then, after further advice and being informed that the transaction was cancelled, Stephen Lee appears in a clip placed on YouTube of him using the subject M14 prohibited rifle in a manner that is not in connection with either the genuine reason of his category D license - Vertebrate Pest Animal Control, nor his firearm dealer licence which does not authorise the use of a firearm except for test firing at an approved range".
While the applicant may, following his discussions with Mr Jenkins, have had reason to believe that the M14 might be reclassified as a category D following submission to review panel, he purported to complete the transfer after having been told that it was impermissible and posted a YouTube video of himself firing it, under the title "M14- Now a Prohibited Weapon". That could be viewed as his testing the rifle for the interstate purchaser he had found (although in the video he described it as a "review"), but he could not lawfully test it on an unapproved test range.
The test thus probably constituted a breach. He was charged with selling or supplying the firearm to himself without the appropriate permit, but the matter was subsequently withdrawn at the Local Court, as the applicant's written submissions point out. That incident counts against Mr Lee's case.
Item 11A: Possession of prohibited 32 round magazines between 21 April and 29 October 2012. Records and a statement (exhibit R2, p 345) supplied to the Victoria Police Firearms Registry showed four Cobray M11 pistols were transferred to the applicant as a dealer, with 30 round magazines. Mr Lee recorded and registered each one as a 10 round firearm, the legal limit. The Victorian supplier, Mr John Fox, later emailed the applicant on 13 December 2013 (exhibit A2, annexure 22) to say that "I did look at my paperwork and now realize you did in fact only receive 10 shot magazines with the M11 pistols, if required I will make a new statement to Victoria Police confirming this, I do apologize for this oversight and hope that you have not been unduly inconvenienced by my error". The respondent's internal review report dated 25 February 2014 accepts that the applicant was supplied only with 10 round magazines.
At the hearing the respondent pressed this point, stating that Mr Fox's original statement to the Victoria Police was to be preferred to his later retraction. While earlier statements to police by parties and criminal suspects are often said to be preferable to later ones, Mr Fox was not a party or a suspect and there is nothing to suggest he is anything other than a respectable dealer. He had no incentive to make a knowingly false statement. A police examination of the guns in the applicant's possession gave the magazine capacity as 13 rounds, but the applicant pointed out that in a used magazine it may be possible to force the spring down so that it would hold 13 rounds (whether the magazine would function properly in those circumstances was not discussed). There was no evidence to show that a 13 round magazine was ever manufactured for the M11, nor was there any satisfactory evidence that the applicant ever possessed a 32 round magazine. This item cannot be sustained.
Item 11B: Sale of a prohibited firearm (M11) to Mr Robert Larkin, who was not authorized to possess it. The applicant admits this contravention, but states that he was not aware that it was unlawful at the time, having received an email from the registry stating that the M11 was a category H. That email, from Leah Robson at the registry and dated 7 August 2012, reads "Thank you for your email. The firearm in question is a category H pistol" (exhibit A2, annexure 22). Thus, while the transaction in question did constitute a contravention, as the responsibility to ensure that Mr Larkin had the appropriate permit lay on the applicant and not on the registry, it is understandable, in view of the categorical reassurance he had received from the registry, that he did not think it was unlawful at the time.
Item 12: Use of live ammunition in the CZ Scorpions registered to the applicant's Theatrical Licence (see Item 2 above). DS/Const Townley's 15 May 2014 statement reports the applicant as saying that the gun had been fired recently and realized this was an offence. The applicant argues that when making that statement, the "offence" he was referring to was that of storing ammunition with a firearm. Be that as it may, the use of live ammunition was a breach of condition 2 of his theatrical armourer dealer licence and thus of s 7(2)(b) of the Act. The applicant submits that the guns were recorded under his dealer licence stock (which would have authorized the use of live rounds) and were transferred over to his theatrical licence only four weeks before the police attended his premises on 16 July 2013, but is unable to say even approximately on what date they had last been fired. This item is established.
Further contraventions of Act. Item 13: The applicant acquired an M1 carbine from Mr Wayne Norman Head, who was not licensed to have it, and incorrectly marked it as category D. S/Const Jackson recorded on 14 December 2011 the acquisition under his theatrical licence from Mr Wayne Head of an M1 .30 calibre carbine, which is a prohibited firearm under item 5 of schedule 1 to the Act (exhibit R2, paras 133 to 137). In recording his acquisition of it, the respondent submitted, Mr Lee had left the licence number of the person from whom it was acquired blank, contrarily to s 45(2)(b) of the Act. The respondent said the transaction constituted a breach of s 51A(1) and pointed out that the dealer exemption in s 36(3) for acquiring an unregistered firearm if an application to register it is made within 24 hours is not expressed to be a defence to s 51A(1), which relates to the acquisition of firearms from an unlicensed person.
The applicant stated, and the respondent did not dispute, that at the time the relevant Firearms Registry Fact Sheet stated that he could receive unregistered firearms from members of the public and register them. (It did not say that unregistered firearms could be received from unlicensed persons.) No one from the registry contacted him and told him that he could not receive the M1 from Mr Head. He therefore believed that he was acting within the law and was serving the public interest by registering a previously unregistered firearm. He did not state that Mr Head had a category D permit. At the time he was aware that there were other instances of M1 carbines being registered by the New South Wales Firearms Registry on D category licences.
In relation to the failure to record Mr Head's licence number, it should be noted that s 45(2)(b) requires a dealer to record "the number of the other person's licence or permit authorising the other person to possess the firearm or firearm part". As Mr Head's AB licence did not authorize him to possess the M1, recording his licence number was not required and might even have been a breach in itself. As regards his recording it as a category D, the respondent did not challenge the applicant's assertion that other M1s were registered in that category, but confined himself to pointing out that the legislation had not relevantly changed.
The possibility of inconsistent or erroneous classifications seems somewhat heightened by the fact that S/Const Jackson's statement of 6 August 2013 describes the rifle as "a M1 Carbine, also known has [sic] M1 Garande [sic]". The reference to the carbine being a variant of the Garand is repeated elsewhere in the respondent's evidence. When queried about the point at the hearing, the respondent said there had been a number of variants of the Garand, which is no doubt true. The .30 M1 carbine, however, as can readily be ascertained, bears no relation to the .30-06 Garand M1. There is no commonality of parts and the two rifles use different operating principles. The Garand uses a long-stroke piston, whereas the carbine employs the DM Williams short-stroke system.
Nevertheless, there is little doubt that the carbine was a prohibited weapon and that Mr Lee's acquisition of it infringed s 51A(1). In the circumstances, however, his culpability lay towards the lower end of the scale.
Item 14: The applicant acquired under his theatrical licence three Norinco SKSs from Mr David Coleman, who was not licensed to have them, in breach of s 51A(1), and marked them as a category D, which they were not. The SKS, being a version of the 7.62X39 AK 47, is a weapon designed for military purposes and thus prohibited under item 5 of schedule 1 of the Act. Here again, the applicant left Mr Coleman's licence number blank.
The applicant's response was similar to that in relation to item 13. At the time he was aware that there were other examples of SKSs being registered on category D licences. In fact, he had at least two of them registered on his personal category D licence at the time. He tendered several permits to acquire dating back to 2011 show acquisition of SKSs and similar rifles. The respondent did not challenge that evidence.
The applicant believed he was providing a service in the public interest by registering a previously unregistered firearm located through a deceased estate. No breach notice or charge was ever initiated over any aspect of that transaction. For reasons similar to those given in relation to item 13, I think this item is made out, though in this case also the applicant's degree of culpability is at the lower end of the scale.
Item 15: On 20 May 2013, the applicant supplied a prohibited M1 carbine to Mr Michael Greenland-Broadsmith, who was not authorized to possess it, and incorrectly marked it as a category D. This was the same carbine that he acquired from Wayne Head. He wrote in his records that he disposed of it to Mr Greenland-Broadsmith (exhibit R2, tab 32) and completed a notice of disposal. His conduct contravened s 51(1) of the Act, the respondent submitted.
The applicant said that the purchaser produced a permit to acquire for category D firearms for an M1 with an accompanying email from the registry stating that category D could include the M1. That email was not produced, but Mr Greenland-Broadsmith wrote to the tribunal on 12 March 2015 (exhibit A2, annexure 23) a letter stating that he had registry permission to purchase an M1 carbine, which he intended to buy from a Queensland dealer, but decided to buy the one that the applicant had instead. The applicant told him he would be holding it in stock until the registry sent him the registration, as he was unsure that the permission was correct as the registry had recently had discussions with him about some firearms being prohibited for class D holders. A few days later the registry and the applicant informed him that he could not acquire that firearm as that particular brand was not available to class D holders. S/Const Jackson's statement of 17 September 2015 (exhibit R6) attaches an email to him apparently sent in April 2013 referring to the classification of the M1 as a prohibited firearm. The carbine in question is still with the applicant's dealer stock that has been impounded by the respondent.
The applicant was insistent at the hearing that the acquirer had produced a permit to acquire an M1, and his evidence is corroborated by Mr Greenland-Broadsmith's letter. In oral evidence he said "I sold the firearm on paper but told him I was not going to let it leave my safe because I didn't trust that the Registry would actually give him the PTA (permit to acquire)" (it would appear that he must have meant the registration, not the PTA). His entry recording the disposal of the rifle to the acquirer, when he had not in fact disposed of it, was incorrect and consequently a breach of s 45(3). He later crossed out that entry and substituted the Lee Family Trust as the acquirer under his theatrical dealer's licence.
The applicant appears to have taken the view that he had in fact disposed of the M1 but was retaining custody of it in case the transaction could not be completed, as proved to be the case. His book entry was therefore incorrect, but partly due to caution about not infringing the legislation. This item has been established.
YouTube videos published by the applicant. Item 16: The video titled "Who gave you the right to take my guns from me?" expressed beliefs incompatible with the objects of the Act. S/Const Jackson quotes a statement by the applicant in that video, set out in para 31 above, which he says "really disturbs me" and "demonstrates beliefs held by Mr Lee which are potentially incompatible with the objects of the Firearms Act 1996". The respondent's written submissions contend that "The Applicant has also expressed views, inconsistent with the privilege of holding a firearms licence. It appears that the Applicant views it as a freedom to have guns, not a privilege" (para 21).
In the passage objected to the applicant does not advocate, or seek to justify, any breach of the firearms legislation. He is expressing his opinions about the 1996 legislation and what he sees as its wider import in a liberal society. Such expressions fall within the constitutionally protected liberty of political communication. That doctrine applies to State as well as federal legislation: Roberts v Bass (2002) 212 CLR 1; Coleman v Power [2004] HCA 39, (2004) 220 CLR 1; Levy v Victoria (1997) 189 CLR 579. Its effect is that legislation should be interpreted so as not to infringe the constitutional liberty, which is a distinguishing feature of liberal democracy. The applicant's expression of his beliefs cannot, therefore, be treated as contrary to the public interest.
Item 17: The video titled ".45 Calibre Birthday Party": On or about 25 April 2012 the applicant uploaded onto YouTube a clip under that title which showed the applicant and his son Jarod Lee firing at targets, and a birthday cake, on his unapproved test range at the Staircase property (exhibit R2, paras 95 to 104). Mr Laurie Campbell's analysis of this event (exhibit R1, tab 9) states that Mr Lee used a .45 rifle and a number of .45 handguns (including a .460 calibre pistol which is actually a .45) to fire at targets and a birthday cake on the improvised range in celebration of his 45th birthday. Handguns over .38 calibre may only be used for specialized target shooting matches by holders of a high calibre pistol permit. The applicant's dealer licence authorized him to use firearms registered as dealer stock only for firing at an approved shooting range. After firing some rounds from the .460, the applicant hands the revolver to his son Jarod Lee who fires five rounds at targets. His high calibre pistol permit had expired on 28 December 2011, several months before the event, and he was not an authorized employee of the dealership. The final round is a higher-powered cartridge that causes Jarod Lee some surprise. Stephen Lee then fires a .45 at some balloons and a birthday cake, which apparently contains pyrotechnics which explode. The respondent submits that the tribunal should accept Montgomery JM's finding in Jarod Lee that in the scene depicted on the video the applicant is not engaged in testing the firearms used, and argues that as a matter of comity, the tribunal should exercise caution in reopening prior, considered rulings of an earlier tribunal: BY v Director-General, Attorney-General's Department [2002] NSWADT 79, [22].
The applicant replies that at the time he believed he was lawfully able to test firearms on his testing facility at that property under his dealer's licence. He relied on a letter from Mr Robert Marchment (exhibit A2, annexure 15), an experienced regular army ammunition and explosives ordnance technician, who inspected the test firing facility before filming and found a number of risk mitigation and protective works in place, including fencing, buffers and butts that worked in a safe and effective manner joining the surrounding fields. "Prior to filming all videos, that I have been present with, myself and Mr Lee conduct safety inspections and choreograph the aspect that will be laid out in the video for the theatrical and test firing purposes, with safety being paramount".
The police had reported the incident to WorkCover, with a recommendation that the applicant's security clearance for explosives use be cancelled. WorkCover found that he was a fit and proper person to use explosives and affirmed his security clearance (exhibit A2, annexure 10).
At the time, the applicant believed his son was authorized to use the gun depicted in the video as his son was licensed to use it on his personal licence and was able to fire it while assisting the applicant in testing it. The applicant now concedes that he was wrong in that respect as his son was unauthorized to use the firearm on that occasion. Montgomery JM had accepted that he actually believed his son had the necessary high calibre pistol permit at the time. He did not deem it necessary to check his son's high-capacity pistol permit because he had recently examined his son's firearms licence, which included pistols, and the applicant was under the impression that Jarod's high calibre permit was current, as he had obtained it only approximately 10 months before the event.
The applicant believed that the circumstances and under his supervision, there was no safety risk in what was depicted in the video. His son's firing a standard velocity cartridge in that pistol involved no danger as the revolver was designed to fire magnum charges and the cartridge in question was the last live round in the cylinder.
Like Montgomery JM, I accept that the applicant believed at the time that his son's high-capacity permit was current. I also note Montgomery JM's finding that "there was nothing obvious in terms of what Mr Lee was doing that presented a danger to the public" and the evidence that the test facility was in fact safe, according to Mr Marchment, who was well qualified to express an informed opinion on the matter.
The fact remains, however, that the range was unapproved by the local council or the registry, that Jarod's permit had expired, and even if it had not, it authorized use of highly-calibre handguns only for the purposes of specialized shooting competitions, which this was not. I agree with Montgomery JM's conclusion that the applicant was not engaged in testing the guns. While there may have been an element of that, the operative purpose of the event was to make a video of an unusual birthday celebration.
The applicant now fully admits this contravention. As was noted above, he was found guilty of operating an unapproved range and using a .45 on an unapproved range. On appeal to the District Court, Jeffreys DCJ dismissed the charges under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, noting the applicant's "good character over many years, the references in particular from the Mayor of the shire, [and] the fact that the appellant's business so far as finances concerned has considerably diminished whilst ever he does not have the capacity to use firearms…." (Lee v DPP, 2014/54362, 1 April 2015). This incident counts against the applicant's case on the public interest.
Item 18: The video titled "M14 -- Now a Prohibited Firearm": the respondent submits that in the YouTube video the applicant is using a prohibited M14 rifle for reasons not in connection with the reasons for his personal licences but for target shooting. If it was used under his dealer licence, it was not permitted test firing as he describes it as "a review". The clip shows Mr Lee firing some 80 rounds at various objects at his unapproved shooting range (exhibit R2, paras 105 to 112).His interactions with the Firearms Registry over his intention to transfer it to his personal licence have been discussed above. The registry also expressed concern about the type of metal targets used in the video.
The applicant's evidence was that he had recently sold that particular rifle to a contract shooter in Queensland, where it could lawfully be registered under category D. At the purchaser's request, he had tested it as a dealer to ensure that it was safe and reliable for use. His evidence on that point was not contradicted. He adds (exhibit A1) that "footage collected that is later edited for the purpose of a YouTube clip does NOT in most cases accurately depict the testing procedure completed for safety or functionality, it may be dramatized in the interests of theatre or cut in order to remove the more mundane tasks completed in order to keep the audience's attention".
The legislation does not define "test" or "testing" or prescribe permissible types of tests or targets. Nor is there any reason why the dealer could not describe a test as a "review" if a test were actually being conducted, as was the case here. The applicant stated that the reason the particular types of targets were used was in order to make the video more interesting to that the viewing audience and there was no actual danger to the public in using them as targets. That appears to be correct, but the fact remains that the range was unapproved and a test could not lawfully be carried out on it. Subsequently the applicant was found guilty of using the M14 on an unapproved range in the same proceedings as led to Jeffreys DCJ's dismissal of the related charges under s 10(1)(a).
Item 19: The videos titled "I'll give up my guns" and "Time to get a gun": the respondent submits that in 2010 the applicant was shown in the YouTube videos as using firearms for a theatrical production without holding a theatrical armourer licence and permit, and using live ammunition in a theatrical production (see item 7). The applicant maintains that the licences he held at the time entitled him to fire those firearms and that the use he was making of them can readily be described as activity associated with the reasons for the licence is held at the time, namely hunting and vermin control.
When it was anticipated that more videos would be made, the applicant sought advice from, and had discussions with, the registry, leading to his obtaining a theatrical licence. He said that the registry initially took the view that he did not need a theatrical licence or permit for that purpose, and repeated that advice when he told them he intended to apply for one nevertheless. The applicant submits that he "chose to increase his exposure to further regulation in order to make sure he was fully compliant with the current law".
The respondent states that no record could be found of such conversations or advice (exhibit R6, para 12). Nevertheless, I find it hard to accept that the applicant would have fabricated a series of conversations in that manner. Given the reality of staff turnover in public service departments, the possibility that some such assurances could have been informally given cannot be excluded. Further, as I have pointed out above, the meaning of "film... production" in the legislation is unclear. While I have proceeded on the basis that the applicant's use of a production company and the professional nature of the video productions does bring the YouTube videos within the definition, the matter cannot be regarded as entirely free from doubt. While this item does count against the applicant's case, it does not have decisive weight.
Item 20: The applicant's traffic offences: on 28 March 2011, the applicant was fined for exceeding the speed limit by more than 30 but not more than 45 km/h. In 2012 he was again fined, for driving while his licence was suspended. The respondent takes the view that these convictions, which were not insignificant, revealed a lax attitude to legislation designed to protect the safety of the public. The applicant takes the position that they are not relevant to the determination of any issue in these proceedings. As the convictions are not trivial, I accept the respondent's submission, but do not think they merit substantial weight.
Other incidents giving rise to concerns. Items 21 and 22: The applicant was found guilty and fined in November 2000 for six explosives offences in Queensland, but in the applicant's submission they are stale matters 15 years old relating to the sale of fireworks in Queensland. At that time the applicant held a current New South Wales licence to possess and sell fireworks, but a Queensland court held that his licence was not valid in Queensland. A $3000 fine was imposed without conviction.
The applicant was also suspected of selling fireworks to unauthorized persons in New South Wales, despite receiving two warnings. The applicant's response is that he has held a New South Wales fireworks licence for some 20 years which authorizes him to use, possess and sell fireworks. In New South Wales fireworks have been banned since 1986, but there is a "Single Occasion Licence" that is available to the general public through WorkCover New South Wales. He also points out that a WorkCover internal review of his fireworks licence reaffirmed that he was a fit and proper person to hold an explosives and pyrotechnics licence. As this item is unsubstantiated, and to some extent contradicted by the WorkCover finding, it cannot be given significant weight.
Item 23: Alleged attempt to access military grade firearms: according to a police intelligence report, on 27 to 28 March 2010, Mr Lee had a stall at the Central Western Arms and Collectibles Fair held at the National Field Days site in Orange. During this event, Mr Lee was said to have approached at least one other stallholder and firearm dealer and offered him cash to allow him to shoot military grade firearms and machine guns. The dealer declined. At the time the applicant was licensed for categories A, B and H only and consequently was not authorized to possess or use such weapons (exhibit R2, tab 41).
The applicant states that he enquired of the dealer if he were legally able to fire and test his firearms at a range. The dealer explained that he would not be authorized and if the applicant wanted to become involved in the industry he would have to obtain his own licences. The applicant took that advice and obtained the appropriate licences for himself. He maintains that he had full regard for the law during that exchange and any allegation of impropriety is unfounded. As it is not possible to test the accuracy of this report, which apparently relates to an isolated incident, it cannot be regarded as made out.
Other matters of concern. Item 24: Lack of understanding of obligations as a licence holder: the respondent referred to a number of points in a hearing on 12 May 2015 when the applicant indicated a lack of clear knowledge of his obligations as a licence holder. Thus,
he "guessed" that he could not have prohibited firearms under category B,
he did not know in 2006 when he obtained a category H licence that he could not have prohibited firearms,
he did not remember if he bothered to familiarize himself with the legislation in 2006 when seeking a category H licence,
he "never looked into" whether he could have prohibited firearms under his category H licence,
he said, "Well I've read, in part, I sort of know some of the Act. And at other times I just know the Act a bit",
he said "sometimes" and "it could be true" that he did not trouble to familiarize himself with his obligations when he obtained his dealer's licence,
he said he was unaware of the re-application process for a high calibre pistol permit and category H licence.
At the hearing on 29 July 2015, he agreed that he had a lax attitude in the past and that there had been a combination of mistakes. The respondent submitted that licence holders are expected not only to comprehend and understand their obligations, but also to comply with them: Bottomley v Commissioner of Police [2005] NSWADT 211, [20]. A person with a high level of interest and experience in firearms should keep pace with the legislative obligations: O'Donnell v Commissioner of Police, New South Wales Police Force [2009] NSWADT 162, [25].
The applicant submits that on each occasion when he did not understand a legal or regulatory requirement, he would rectify the problem in a timely manner. More often than not that was achieved by directly contacting the registry and making enquiries. The reason he applied for, and obtained, numerous firearms-related licences was not to be able to do whatever he wanted, but always to remain within the law. That was his goal and intention in the past and it remains so now.
The applicant's repeated contacts with the registry and his numerous applications for licences and permits do suggest a continuing desire to remain within the law. At the same time, however, he took insufficient steps to become familiar with the detail of the regulatory scheme and relied too much on informal advice from registry staff, who were not authorized to give binding legal advice and who, as was seen above, sometimes expressed inconsistent views or made mistakes, as in the case of the M14, the M1 carbine and the Garand. That is not a criticism of the respondent's officers, but a reflection of the myriad of firearm types, makes and models, and their interaction with a complicated regulatory system. He took insufficient steps to ensure that he renewed his licences and permits before they expired and resorted to improvised methods of record-keeping.
Item 25: Unsafe operation of a paintball range in the video "The Shootout" (see also item 7): the applicant breached his safety rules in permitting use of a paintball marker within the non-engagement distance and while not wearing a face mask. The documents he had supplied in support of his application for a paintball permit gave the minimum engagement distance as 6 m. S/Const Jackson observed that in the video Mr Lee is seen shooting at a distance of less than 6 m and walks within an unsafe distance of the barrel and arc of fire of another paintball user (exhibit R2, paras 91 to 94). He was not wearing a face mask but only eye protection.
The applicant submits that the video was purely a promotional clip and that everything was done within reasonable safety parameters, as evidenced by the fact that no person was injured or put in to any actual danger at the time. The alleged breach did not occur during an organized paintball game, but in a theatrical, planned and controlled environment that was necessary for the filming of the video. The production company oversaw the video clip.
Extra safety measures were taken, such as the use of additional padding. The paintball guns were set at the lowest velocity and some did not contain any paintballs. All the participants were fully aware that it was a staged demonstration. No person was placed in danger at any time. This although the applicant believes that the occasion was not unsafe, he would not repeat the practice as he is now aware that the registry considers his actions inappropriate.
I accept the applicant's submissions on this item. It was clearly a staged event and the participants were playing prearranged roles. The credits include a list of the participants and the particular roles they were playing. There was no significant danger to any person, although it is understandable that the registry, being unaware of the circumstances, took a different view at the time.
Items 26 and 27: Inability to see safety risks from non-compliance with legislation. Examples were his failure to appreciate the safety risk in keeping paintball guns when unlicensed, and in operating an unapproved range. In relation to the paintball guns, the respondent relied on O'Donnell at [32], where the tribunal said:
A person not familiar with firearms might not make the differentiation between an operational firearm and one that had pieces missing if the firearm was pointed at them. They might reasonably believe that the firearm could cause them damage. There can be no doubt that it could give rise to an apprehension of fear or harm.
The applicant concedes that keeping the paintball markers while awaiting renewal of his licence was a contravention, and is something that could have been avoided by promptly transferring the markers to his dealer stock. There was no risk to public safety, however, as the police knew at all times where the markers were, the safe keeping requirements were complied with and the markers were not used or removed from their safekeeping during that period. O'Donnell is irrelevant as no person came into contact with the paintball markers in question.
I accept those submissions. In addition, O'Donnell would not appear to be in point in view of the applicant's unchallenged evidence that a paintball marker cannot be mistaken for a firearm, with or without parts missing, because of the large air tank on top and that there is no known case of a paintball gun being used in the commission of a crime. As regards the safety risks of operating the unapproved range, the applicant had an experienced army firearms range expert, Mr Marchment, in attendance at various times to assist and check his range facility. The respondent took exception to the fact that the unauthorized shooting range was about 40 m from the paintball field, but both facilities were under the applicant's control and there is no reason to doubt his evidence that no paintball events were held when there was firing on the range. As Mr Price also pointed out, the applicant was legally able safely to shoot on that particular property with his personal firearms, of the same .308 (or 7.62X51) calibre. In the circumstances the safety risk seems to have been more theoretical than real. Nevertheless, the use of the unapproved range was a breach of the Act and led to criminal proceedings.
Item 28: The applicant's "chop and change" attitude, which the respondent contends is fundamentally wrong. As has been discussed above, that proposition is too broad to be sustained.
In conclusion, the respondent submits that the applicant should have no firearms licence or permit whatever. The fact that he has been without his licences for two years is irrelevant as it cannot be assumed that the effluxion of time will itself bring about any relevant change of attitude or behaviour: Lee v Health Care Complaints Commission [2012] NSWCA 80, [73]. There is no evidence to support his claims of lost income, but in any case the public interest would outweigh such a consideration.
The applicant submitted that the firearms regulatory system is complex, fluid, often ambiguous and inconsistent. The Firearms Registry has on occasion provided inconsistent advice or attitudes to regulation and enforcement in the past. In order effectively to operate his several businesses within that system, the applicant obtained every conceivable licence and permit in order to work within the law and not breach any of the various regulatory standards. His theory was that if he adopted that approach, his activities would always come within one or more of his licences or permits, and he would therefore not fall foul of the Act or regulation. In the result, however, the applicant had arguably over-regulated himself and as a result on occasion had confused himself and the regulatory body. Nevertheless, if he was uncertain on a particular point, he invariably sought advice from the registry or local police, on the assumption that if he raised any contentious or confusing matters with them, he would remain on the correct side of any regulatory line. The applicant had never caused or posed any actual danger to the public at any time. His conduct, taken individually and as a whole, posed virtually no risk to public safety. In fact in the past his conduct as had the effect of enhancing public safety by encouraging the registration of unregistered firearms.
To deny him the ability to earn his income any longer would amount to an extra-curial punishment out of proportion to his relatively minor transgressions, which are clearly at the lower end of the scale of seriousness. The respondent's position, Mr Price contended, would see the applicant deprived of the opportunity to re-apply for a firearms licence for a period of 10 years: s 44A(3)(a) and (c). It would be preferable to arrive at a compromise solution by prescribing corrective measures such as participation in a firearms awareness course and some type of dealer mentoring along with conditional reinstatement of the applicant's licences. The applicant had made himself more aware of the regulatory scheme during the past two years and three months and will continue to do so in the future. He has learned many significant lessons from that process. He earns his income from businesses that require various firearms licences and over the last two years has lost a substantial amount of income. To affirm the decisions would result in a pecuniary outcome out of all proportion to any alleged breaches or eventual findings.
The respondent opposed any form of compromise and said the applicant's overall conduct was bad.
The applicant acknowledges that he was lax in complying with legislative requirements in the past and assures the tribunal that he would not repeat the prior conduct that gave rise to concerns. He would also not make videos such as some of those he produced in the past.
While those assurances can be accepted, there is another aspect of the issue that must be borne in mind. Regulatory licensing structures, whether in relation to firearms, health care, public transport or a variety of other matters affecting public safety, also serve the public interest by establishing a regulatory system that helps to preserve public confidence in the protection of public safety. The Court of Appeal explained that function in Health Care Complaints Commission v Do [2014] NSWCA 307, [34] - [39]:
The objective of protecting the safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise (at [35], emphasis added).
The Court of Appeal gave further guidance on the operation of the deterrent factor in New South Wales Bar Association v Meakes [2006] NSWCA 340:
113 The point sought to be made in the authorities is, no doubt, that the Court or Tribunal making an order in disciplinary proceedings must have squarely in mind the protective purpose of the order, in the public interest. That is not to say that the adverse (punitive) effect on the practitioner should be ignored; clearly no order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose. 114 That being said, it may also be noted that the protective purpose may operate in different ways. First, by its direct effect upon the practitioner, the order will either remove that practitioner from membership of the profession (by disbarment or suspension) or will provide a deterrent against the repetition of such conduct (in the case of a fine or reprimand). There are also important but indirect effects to be considered. First, the order reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly and more specifically, it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession. The underlying purpose is not self-aggrandisement on the part of the profession, but a recognition of the social value in the availability of the services provided to the public, combined with an understanding of the vulnerability of many who require such services.
Although firearms law incorporates a number of criminal sanctions, it is not part of the criminal law as generally understood. But those cases, among other authorities, show that the concept of deterrence, both specific and general, which plays a large part in the criminal justice system, also has an application in this type of context. Specific deterrence as regards sanctions for breach of a licensing requirement protects the public by preventing the relevant licensee from engaging in further violations and ensuring that the licensee appreciates the adverse consequences of infringing conduct in the event that he or she is again issued with a licence in the future.
In the present case there is little likelihood of the applicant's reoffending in the same manner. Given the opportunity to hold a licence again in the future, he is unlikely to seek to push the boundaries of permitted conduct or to neglect the obligation to seek licence or permit renewal and to remain up to date with legislative requirements. The requirements of special deterrence have been satisfied.
Do and Meakes explain the operation of general deterrence in the field of professional conduct, and by analogy in firearms licensing, by denouncing such misconduct and helping to maintain public confidence by signalling that those whose conduct does not meet the required standards will be visited with consequences, including not being permitted to hold a firearms licence. The applicant's record of repeated failures to renew licences and permits, the clear and substantial contravention involved in the operation of an unapproved firing range and his other varied infringements lead to the conclusion that general deterrence requires the application of a sanction in this case.
It will be noticed that most of the breaches that have been established relate to his dealer and theatrical licences and permits. I find that it is not at present in the public interest for him to hold such licences and permits.
Infringements that relate to his personal licences are virtually non-existent, and those that do (such as failure to renew) are of a less serious nature. The respondent relies on Hijazi at [47] as authority for the proposition that the tribunal should not compartmentalize or quarantine conduct or contraventions to a particular licence or permit. The conduct may, and does, reflect more broadly against the applicant and shows an entrenched and fundamental failure to understand and comply with his obligations as a licence holder, it is submitted.
While Hijazi does explain that contraventions in relation to one licence are not to be treated as irrelevant to other licences, it does not suggest that contraventions should be treated as having equal weight in relation to all licences. The applicant's transgressions in relation to his dealer and theatrical licences and permits are not necessarily decisive on the public interest issue in relation to his personal licences. I therefore find that it is not contrary to the public interest for him to hold personal ABCDH firearms licences and permits.
The final category of breaches are those relating to his paintball operations. These are of a different class from those arising from the possession or use of actual (as against deemed) firearms. For the reasons set out above I think there is virtually no risk to public safety in the applicant's holding the necessary permits. Indeed, as Cr Keith OAM explains, there is a demand for his services in that activity, which is seen as beneficial to the Parkes rural community by providing activities for young people. I find that it is not contrary to the public interest for the applicant to hold a paintball permit.
Orders. The decisions under review (collectively referred to as "the decision") are varied as follows:
1. In so far as it relates to the applicant's application for a category ABCDH firearms licence (No. 106968687) and for a high calibre pistol permit (No. 410409280), the decision under review is set aside.
2. In so far as it relates to the revocation of paintball games permit No. 405606123 previously held by the applicant as licence holder for the Lee Family Trust trading as Broken Hill Paintball, the decision under review is set aside.
3. In all other respects the decision under review is affirmed.