• The applicant is not a fit and proper person to hold a firearms licence.
• Having regard to the underlying principles and objects of the Firearms Act 2015, the correct and preferable decision is to affirm the cancellation of the licence.
• The applicant exercised poor judgement in continuously possessing the items rather than disposing of them safely and lawfully.
• The applicant's breaches of the Firearms Act 2015 are incongruous with the actions of a responsible firearms owner and do not inspire confidence that he would properly comply with the Act in the future.
• There was insufficient information before the Tribunal to properly consider the question of placing administrative restrictions under s 20(9) of the Firearms Act 2015 on the firearms that may be possessed or used by the applicant_._

Firearms Act 2015 - Suspend or cancel a licence, permit or registration - Lack of fitness and propriety

South Australian Civil and Administrative Tribunal Act 2013 ss 34, 37

Firearms Act 2015 ss 7, 15, 20, 27

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Balodis v Registrar of Firearms [2012] SADC 113

Balodis v Registrar of Firearms [2018] SACAT 58

Breeding v Registrar of Firearms [2017] SACAT 40

Carpenteri v Registrar of Firearms [2021] SASC 27

D'Orazio v Registrar of Firearms [2018] SACAT 15

Davies v Registrar of Firearms [2005] SASC 149

Hughes and Vale Pty Ltd v State of New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127

Jaworski v Police [2009] SASC 284

Johnson v Registrar of Firearms [2001] SASC 51

Offe v Police [2002] SASC 259

Pepper v Registrar of Firearms [2016] SADC 38

Pitchers v Police [2012] SASC 171

Police v Losapio [2007] SASC 112

Pollitt v Police [2007] SASC 382

Registrar of Firearms v Gitsham [2002] SASC 30

Schinckel v Registrar of Firearms [2020] SACAT 73

Zammitt v Registrar of Firearms [2010] SASC 100

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 37(1)(a)

1. This is an application made under s 34 of the South Australian Civil and Administrative Tribunal Act 2013 for review of a decision of the delegate of the Registrar of Firearms (the Registrar) made on 16 March 2021 to cancel Mr Lock's firearms licence under s 20(6)(d) of the Firearms Act 2015 (Firearms Act).

2. The issue in dispute is whether Mr Lock is a fit and proper person to hold a firearms licence. In this review, the burden of demonstrating fitness and propriety lies on the applicant.[1]

3. I have had regard to the material that was before the Registrar and to the additional written and oral evidence and submissions put before the Tribunal on review. This includes an affidavit affirmed by Mr Lock on 16 August 2021, a number of character references, and brief oral evidence given by telephone on the day of the hearing by Mr Lock and Ms Vicki Jarrett, who resides with Mr Lock.

4. Mr Lock said that he had held a firearms licence since the age of about 16,[2] aside from a period of about five to ten years in the 1980s and 1990s when he had surrendered his licence or let it lapse due to the attitude of his then partner regarding firearms. In this intervening period, he sold the firearms he then held. He said he obtained his most recent collection of three firearms from about 1996 or 1997 to assist his brother who had been having trouble with foxes.

5. Mr Lock describes in his affidavit the care and responsibility with which he has used firearms since childhood, instilled in particular by his father.[3]

6. Mr Lock's firearms licence was cancelled by the delegate due to Mr Lock being found guilty on 17 November 2020 of two offences under the Firearms Act, namely possession of an unregistered firearm in contravention of s 27(1) of that Act and possession of a sound moderator without being approved to do so in contravention of s 39(1)(a) of that Act. Mr Lock entered guilty pleas to those charges. He was fined $140 but had no conviction recorded.

7. It was also relevant to the delegate that Mr Lock had proposed to dispose of the unregistered firearm and sound moderator to a scrap metal dealer.

8. The delegate concluded that Mr Lock was not a fit and proper person to hold a firearms licence.

9. There was no dispute between counsel for Mr Lock and the Registrar that the relevant unregistered firearm constituted the components of a disassembled air rifle (or "slug gun"), described in a police receipt as a "piece of wood"[4] and "barrel".[5]

10. Mr Lock's convictions raise serious questions about his fitness and propriety as a firearms licence holder. Mr Lock sought to address this by explaining the circumstances in which he came to possess the items in question and, in submissions from counsel, to argue that his possession of them did not offend the principles and objects of the Firearms Act in this particular case.

11. Mr Lock said that the items came into his possession in around late 2012 or early 2013 during the clearance by him and a friend of a large deceased estate. He said he put the items in his locked, self-made gun cupboard with the intention of taking them to a scrap metal yard for disposal or destruction with the other scrap metal he needed to dispose of. However, the scrap yard could not take the items immediately. The unregistered firearm and the sound moderator remained in Mr Lock's gun cupboard. Mr Lock resumed clearing the deceased estate with his friend. Mr Lock said that he became distracted by the scrap work he was doing. He said that he completely forgot that the items were in his gun cupboard until they were located by police in April 2020 after Mr Lock's arrest on an unrelated matter.

12. The Tribunal received in evidence a photograph of the gun cupboard and its external measurements (150 cm high x 63 cm wide x 63 cm deep). Mr Lock said that when he first came into possession of the unregistered firearm and sound moderator, he threw them onto the ground in the back of the cupboard. He said these items became obscured by other things stored in the cupboard such as rifle and scope bags, his firearm cleaning kit and two small, long cases containing onyx pieces belonging to Ms Jarrett. He said that he could not see the items when he opened the cupboard from time to time (about four or five times a year)[6] to access the other firearms stored there. He said he could go months before needing to open the cupboard and that it would be generally in an emergency situation when his animals were in danger or a feral or wild animal was injured and needed help quickly.

13. The charge in respect of which Mr Lock was arrested by police was ultimately dropped. The Tribunal was given a substantial amount of information about that charge and the allegations surrounding it. I have not given this information any weight in this decision.

14. Mr Lock has two other convictions recorded against him.[7] This is the offence of common assault in 1983 and the offence of failing to possess a duly completed log book in 1999. An interim intervention order (non-domestic abuse) was issued on 28 February 2019 but was revoked on 10 April 2019. Due to the age of these convictions and the resolution of the intervention order, I have not given these matters any weight in my decision. I note that when determining fitness and propriety, past convictions are not to be held against an applicant indefinitely.[8]

15. Under s 34 of the SACAT Act, a review of the delegate's decision involves the Tribunal examining the decision of the decision-maker by way of rehearing and reaching the correct or preferable decision. In doing so, the Tribunal must have regard to, and give appropriate weight to, the decision of the original decision-maker. Also, as the review is by way of a rehearing, the Tribunal may also take into account further material.

16. Under s 20(6)(d) of the Firearms Act, the Registrar may, by written notice served personally or by registered post on the licensee, cancel a firearms licence on any ground on which the Registrar might refuse an application by the licensee for such a licence. Section 15(1) of the Firearms Act (relevantly) states that the Registrar may only refuse an application for a firearms licence if the Registrar is not satisfied that the applicant is a fit and proper person to hold the licence.

17. Section 7 of the Firearms Act deals with who is not, or who may be taken not to be, a fit and proper person. Relevantly, it states in s 7(3)(b) that a person may be taken not to be a fit and proper person for a purpose under that Act if the person has been found guilty of an offence under the Act. Section 7(7) also states that s 7 does not limit the grounds on which a person may be taken not to be a fit and proper person for a purpose under the Act.

18. Section 7(4) contains factors that the Registrar and Tribunal are required to consider. In particular, the Tribunal is required by s 7(4)(b) to consider the risk of future behaviour.[9] Section 7(4) states:

(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.

19. There is no evidence before the Tribunal that s 7(4)(b)(i), (ii) and (iii) are relevant in this case.

20. The Parliament, the Supreme Court and this Tribunal have been clear that firearm possession is a privilege that is conditional on the overriding need to ensure public safety.[10] As this Tribunal has observed, 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.[11]

21. The principles and objects of the Firearms Act are critical to the decision-making of the Registrar and this Tribunal and it is worth setting them out in full. Section 3 states:

(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.

(a) to ensure that the possession and use of automatic and self-loading firearms is permitted only in strictly limited circumstances;

(b) to establish an integrated licensing and registration scheme for all firearms;

(c) to require each person who possesses or acquires a firearm or ammunition under the authority of a licence or permit to have established a genuine reason to possess or acquire the firearm or ammunition;

(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;

(e) to reduce the number of firearms that are in unlawful possession in the community through a general amnesty;

(f) to prevent or restrict persons and organisations from accessing, possessing or using firearms for criminal purposes;

(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.

22. Each of the parties in submissions drew the Tribunal's attention to observations from the High Court on the concept of fitness and propriety.[12] For the sake of brevity, I do not repeat them here but it suffices to observe that the meaning of this term is contextual and, in this case, will depend on the principles and objects of the Firearms Act.

23. The Tribunal has been urged by counsel for Mr Lock to accept that Mr Lock's conduct amounts to an isolated lapse several years ago in the context of a long history of conscientious firearms use that did not create a future risk to the public safety or a risk of any criminal activity, and that he has learned from the experience and will be strongly deterred from repeating the conduct.

24. I cannot agree with the characterisation of Mr Lock's conduct as a simple one-off oversight. This is because I am not satisfied on the evidence that Mr Lock forgot that he had the unregistered firearm and sound moderator in his gun cupboard from the time that he first took possession of them in around 2013 until they were located by the police in April 2020.

25. This version of events proffered by Mr Lock is inconsistent with Mr Lock's avowed history since childhood of careful and responsible firearms use and possession, and the maintenance since his teenage years of a licence and registration of other firearms (apart from the period mentioned earlier). This version of events is also not consistent with Mr Lock's intention, on first finding the items, to take them immediately to a place where they could be disposed of or destroyed. I find that it is not likely that a person with a long and otherwise unblemished history of firearms ownership would have forgotten for a period of seven years that he had in his possession an apparently unregistered firearm and a sound moderator that he was not approved to have.

26. Also, I do not accept that Mr Lock would not have noticed the items when opening the gun cupboard several times a year across a period of seven years to access the other firearms and other objects stored there.

27. In other words, it is not credible that Mr Lock would immediately forget about the items and not recall that he had them in his possession until April 2020. I find that it is more likely, and consistent with the evidence, that Mr Lock was aware that the items were in his possession in his gun cupboard. I agree with the respondent's submission that Mr Lock disregarded the requirements of the Act in doing so.

28. The conclusion to be drawn from the facts is finely balanced. I acknowledge that the contrary conclusion is available on the facts but, for the reasons given above, I do not accept it.

29. Mr Lock exercised poor judgement in that, instead of safely, responsibly and immediately disposing of the items, he initially proposed to dispose or destroy them at the scrap metal yard and left them in his gun cupboard where they remained until being found by the police seven years later. I do not accept the submissions of counsel for Mr Lock that his past conduct is not a sound predictor of his future conduct[13] because I do not accept that his conduct was a one-off failure - it was ongoing over a period of seven years.

30. For all the above reasons, I accept the position of the respondent that there is an unsatisfactory risk based on Mr Lock's prior conduct of unlawful possession over an extended period, and contrary to the principles and objects of the Firearms Act, that Mr Lock would not comply with all aspects of the Act if his firearms licence and firearms were restored to him. There is also a risk, based on Mr Lock's prior conduct, that Mr Lock would fail to exercise continuous and responsible control over a firearm, specifically that a firearm would not be appropriately registered and disposed of where necessary.

31. It is relevant also to the Tribunal's consideration that, had it not been for the police locating the items in April 2020, they would likely still be in Mr Lock's possession. I do not accept the submission that the risk under s 7(b)(iv) is less in this case because Mr Lock's instinct was correct, namely to keep the items safe until disposing of them. There is no evidence before the Tribunal that Mr Lock had formed any proposal, beyond his misguided initial proposal, for disposing of the items.

32. Accordingly, I find that Mr Lock is not a fit and proper person to hold a firearms licence. I agree with the delegate that Mr Lock's breaches of the Firearms Act are incongruous with the actions of a responsible firearms owner and do not inspire confidence that he would properly comply with the Act in the future.

33. In forming this conclusion, I do not need to find that Mr Lock had, or may in the future have, a criminal or anti-social purpose for his conduct, and in fact I find no evidence to suggest that or to suggest that Mr Lock is generally a person of bad character. However, as noted in a previous decision of this Tribunal, this does not necessarily mean that, for the purposes of the Firearms Act, a person is a fit and proper person to hold a firearms licence.[14] I agree with Mr Lock's own description of his conduct as thoughtless rather than being calculated to achieve a criminal purpose.

34. Even if I were satisfied of the alternative hypothesis, namely that Mr Lock entirely forgot about the presence of the unregistered firearm and sound moderator in his gun cupboard for seven years, I would come to the same conclusion. In that alternative scenario, Mr Lock's disregard of the obligations of the Firearms Act would involve a degree of carelessness, oversight and negligence that is no less serious or contrary to the principles and objects of the Act. The apparent ease and rapidity with which Mr Lock would have forgotten about the items is of concern in determining whether he is a fit and proper person to hold a firearms licence.

35. In making this decision, I have regard to, and give appropriate weight to, the decision of the original decision-maker as a person well-placed to make assessments in these matters.[15] I give less weight to the character references provided by Mr Lock. While supportive of Mr Lock's general good reputation, honesty, integrity, and experience with firearms, they are not a sufficiently countervailing consideration in determining fitness and propriety when balanced against Mr Lock's conduct in maintaining unlawful possession of an unregistered firearm and a sound moderator for seven years. For the same reason, I also give less weight to counsel's submissions that, because the items in question were not used by Mr Lock and were kept secure, Mr Lock's conduct did not undermine public safety or create a risk of criminal activity.

36. I give little weight to what are said to be the comments of the court and of the prosecutor at the conclusion of the criminal proceedings against Mr Lock, namely that he could expect to get his firearms and licence back shortly.[16] Equally, I do not accept Mr Lock's counsel's intimation that the fact of a relatively minor sentence imposed for the firearms offences should be given significant weight in my decision. The comments of the learned Magistrate and prosecutor, and a penalty imposed on entirely different (sentencing) considerations, cannot substitute for the decision of the delegate and of this Tribunal in this review as to whether Mr Lock is a fit and proper person to hold a firearms licence.[17]

37. As I have found that Mr Lock is not a fit and proper person for the purposes of the Firearms Act to hold a firearms licence, the discretion in s 20(6) of the Act may be exercised, namely that the licence may be cancelled on any ground on which the Registrar might refuse an application. Having regard to the underlying principles and objects of the Act, the correct and preferable decision is to affirm the cancellation of the licence.

38. I do not find that it is a sufficiently compelling countervailing consideration that Mr Lock requires a firearms licence and firearms to protect animals on his property and to keep intact his firearms collection, which has sentimental value to him.

39. While not raised by counsel for Mr Lock as an option for the Tribunal to consider and not the subject of evidence or submissions from either party, I have given some thought to the exercise of the power in s 20(9) of the Firearms Act to place administrative restrictions on the firearms that may be possessed or used by Mr Lock under a firearms licence rather than cancelling it. As indicated by a recent decision of this Tribunal, this power may be considered particularly where a person has otherwise demonstrated that they are of generally good reputation, honesty and integrity.[18] While Mr Lock's breaches of the Firearms Act are of a different degree and seriousness compared to those in that earlier decision, Mr Lock's conduct on either hypothesis demonstrates an incompatibility with the principles and objects of the Firearms Act. I am not persuaded on a prima facie basis that Mr Lock's lack of fitness and propriety under the Act, arising from the particular circumstances of his unlawful possession of the firearm and sound moderator, is capable of remedy by placing administrative restrictions on the firearms he may possess and use under his licence. However, as there is insufficient information to properly consider the question of s 20(9), it would be inappropriate for me to make any decision on the matter.

40. For the reasons given, I consider that the decision made on 16 March 2021 is the correct and preferable decision and that it should be affirmed.

41. The Tribunal affirms the decision under review.

[1] D'Orazio v Registrar of Firearms [2018] SACAT 15 at [28]; Balodis v Registrar of Firearms [2018] SACAT 58, [38].

[2] Mr Lock is currently 70 years of age.

[3] Affidavit of William Lock, [23]-[32].

[4] Item 4 in the field receipt: page 17 Section 35 Book of Documents.

[5] Item 5 in the field receipt: page 17 Section 35 Book of Documents.

[7] Pages 37-39, Section 35 Book of Documents.

[8] Balodis v Registrar of Firearms [2012] SADC 113, [53]-[54], [58]; Balodis v Registrar of Firearms [2018] SACAT 58, [37].

[9] Breeding v Registrar of Firearms [2017] SACAT 40, [76].

[10] Johnson v Registrar of Firearms [2001] SASC 51; Offe v Police [2002] SASC 259, [22], [26]; Registrar of Firearms v Gitsham [2002] SASC 301, [23]; Davies v Registrar of Firearms [2005] SASC 149, [23]; Police v Losapio [2007] SASC 112, [21]; Pollitt v Police [2007] SASC 382, [20] - [23], [27]; Jaworski v Police [2009] SASC 284, [22] - [25]; Zammitt v Registrar of Firearms [2010] SASC 100, [37]-[38]; Pitchers v Police [2012] SASC 171, [8]-[12]. And also Zammit v Registrar of Firearms [2010] SADC 100, [36]-[38].

[11] Balodis v Registrar of Firearms [2018] SACAT 58, [49].

[12] Hughes and Vale Pty Ltd v State of New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127, 157; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 380.

[13] Breeding v Registrar of Firearms [2017] SACAT 40, [92].

[14] Balodis v Registrar of Firearms [2018] SACAT 58, [49].

[15] Pepper v Registrar of Firearms [2016] SADC 38, [27]; Breeding v Registrar of Firearms [2017] SACAT 40, [31]; D'Orazio v Registrar of Firearms [2018] SACAT 15, [14]; Balodis v Registrar of Firearms [2018] SACAT 58, [14].

[16] Affidavit of William Lock, [21].

[17] See Carpenteri v Registrar of Firearms [2021] SASC 27, [25].

[18] Schinckel v Registrar of Firearms [2020] SACAT 73, [37] - [38].