ACT Civil and Administrative Tribunal|2018-03-08

The applicant provided a wide range of material in relation to this matter. Some of this material related to his work and education history. He worked in a range of roles concerning gardens, horticulture and parks from the 1970s to 1990s. He obtained a range of qualifications including a degree in landscape architecture. He worked in a range of other positions in the 1990s. He provided a range of good references in relation to this work from this time, including a strong reference from the Director of the Australian National Botanic Gardens as to Mr Ps design of three major projects for the Gardens.[50]
In about 1997 it appears that Mr P had difficulties with his employment; he stated that "I suddenly walk straight into a black tunnel (blacklisted from all professional employment promotions 1997 to 2017)".[51] Some of Mr P's evidence and documents deal with his employment situation since 1997 and its causes, and at times he appeared to make claims in these Tribunal proceedings in relation to this past employment situation.[52] These are not issues which the Tribunal can directly consider or remedy.
One matter which Mr P specifically noted was that while he was at one stage convicted of a firearms offence in relation to storage of a rifle, the Supreme Court allowed an appeal from this and made a non-conviction order and a 12 month good behaviour order. The Court noted Mr P's previous good record, and that no actual misuse of guns was alleged.[53]
Mr P relied in particular on a report by Professor Scott Henderson dated 9 August 2005.[54] This set out some of Mr Ps employment history, noted that "his employers had treated him unfairly", that he was dismissed by a process Mr P termed "constructive termination", and subsequent litigation. He noted Mr P had no hallucinations, delusional perception or other psychotic symptoms. He concluded that Mr P "is not mentally dysfunctional and is not mentally ill' and there were no clinical features that would justify a diagnosis. Instead Mr P has reacted with intensity to adverse experiences. The report indicated that there is no need for treatment. It concluded with the following: "Concerning the probability of his being now or in the future a danger to others, I do not consider myself sufficiently experienced to estimate this. I do believe that it would be unwise for him to have access to weapons, but this is not a judgment made by me as a psychiatrist". It is not completely clear what Professor Henderson meant by this last comment, but it is not a strong endorsement that Mr P is a suitable person to hold a firearms licence.

The relevant discretionary criteria under section 18(1)(a) is whether the Registrar, at this stage the Tribunal, believes on reasonable grounds that, because of the Mr P's mental health, he may not handle firearms responsibly.[75]
The evidence before the Tribunal suggests that Mr P does have a mental illness. This mental illness has been severe at some times in the past, and required significant treatment. The evidence suggests that it was particularly severe in 2010. At other times the mental illness has been, at least in part, in remission.
The evidence before the Tribunal also suggests that events in the past in relation to Mr P's employment have caused him significant stress and concern. Of course Mr P is entitled to pursue his complaints and claims in this regard. But these events seem to play a significant role in Mr P's mental illness. Importantly these events and Mr P's mental illness at times combine to make him say things which suggest he may act out inappropriately on the basis of them. As noted a report of May 2010 stated that Mr P has when sick a "complex persecutory delusional system about the police force and departments of the public service interfering with his career prospects, assaulting him on numerous occasions, infiltrating his emails, planning to murder him." It was said that at that time he had a "high risk of acting out on his believe and harm others (sic)".[76]
Mr P did refer to evidence, in particular of Professor Scott Henderson, that at times he had no hallucinations, delusional perception or other psychotic symptoms. The report by Dr Azra Sabir in 2016.[77] noted that Mr P had been receiving care for a delusional disorder for the last few years, but he had been off all his antipsychotic medications for over eight months and was doing really well. But the evidence is that at other times Mr P had a serious mental illness. Mr P admitted that he currently was receiving no treatment for a mental illness.[78]
Further the current medical evidence of Dr Saboisky is that Mr P's mental health has again deteriorated. Dr Saboisky stated that "the type of illness diagnosed in 2010 has an extremely high relapse rate if patients are inadequately medicated". Dr Saboisky noted that Mr P has a history of threatening and violent behaviour, and that apparently he continues to behave in a threatening manner and to be delusional. A range of emails presented to the Tribunal provide a basis for this conclusion.[79]
There is no doubt that Mr P believes he was treated very badly by his employer and others. There is also no doubt that he has made a significant and highly commendable effort to recover from his periods of poor behaviour and of severe mental illness. He was an impressive witness and advocate in these proceedings. He also clearly has very supportive family and friends. It seems that rifle target and sporting shooting were important to Mr P at one stage of his life, and that a return to them may assist him to regain his lost self-worth. But the Tribunal also notes that failure to obtain a firearms licence would not prevent him from carrying out a range of other related activities such as camping, fishing, and archery with his relatives and friends. It is also true that mental illness medication can have side effects, but the Tribunal notes that this is a matter which can be managed to a large extent by treating doctors.[80]
But Mr P provided no current mental health assessment. On this basis the Tribunal is left with the assessments which the Registrar has provided including the recent report of Dr Saboisky. As discussed, the Tribunal does not think that the Registrar or the Tribunal can require Mr P to undergo a mental health assessment. However, if he does not do so, then the Tribunal is left with the evidence provided by the Registrar.
Dr Saboisky concluded by stating that Mr P's application to own and use firearms is not supported on psychiatric grounds".[81] Even Professor Henderson noted in his earlier report he thought it unwise for him to have access to weapons.[8] Especially when unwell, Mr P has a complex persecutory delusional system which he may act on the basis of, even though such action may in his view be in self-defence. The evidence suggests Mr P is unwell at this time.
On the basis of the evidence before it the Tribunal is therefore of the view that because of the Mr P's mental health he may not handle firearms responsibly. There is no requirement that the Tribunal be satisfied that he will not handle firearms responsibly, only that this is a possibility. I recognise that this is a harsh standard, but it is one which reflects the underlying principle of the Act that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety (section 5(1)(a)). In the Tribunal's view this discretionary criteria has been met. In making the decision whether to grant a licence, the Tribunal must consider this discretionary criteria in deciding whether Mr P is a suitable applicant. Section 58(1) provides that the Tribunal must refuse to issue an adult firearms licence unless satisfied on reasonable grounds that the applicant is suitable. The Tribunal is not so satisfied that Mr P is a suitable applicant because of issues in relation to his mental health, and therefore refuses the licence on this ground.
A similar conclusion was reached in the Victorian Civil and Administrative Tribunal decision of YCO v Firearms Appeal Committee [2008] VCAT 966.[82] There the applicant noted that she had no criminal record, no psychiatric record and had held a firearms licence for 12 years without any infringements (at [17]). But there was evidence she believed that the police had obstructed her application, and that she had longstanding and ongoing concerns with her neighbours, and alleged that she had been shot at by them on various occasions and actually hit on others (at [21]). The Victorian Tribunal accepted that the applicant had these beliefs, but that they raised concerns as to the state of her mental health which had not been fully explored, though the applicant regarded any potential assessment as a further assault (at [32]). Because the applicant perceived she was under attack, there was a risk that she would act in self-defence as she saw it, and the Tribunal found she was not a fit and proper person to be issued with a licence (at [34]-[35]).

Mr P argued that the refusal of the licence discriminated against him on the basis of his mental illness. It is necessary to look at the law in the ACT to decide whether this is relevant to decision-making under the Firearms Act. No complaint under the Discrimination Act 1991 (Discrimination Act) and the Human Rights Commission Act 2005 is before the Tribunal. It is true that the Discrimination Act applies to discrimination on the ground of disability (section 7(1)(e)) which is broadly defined so as to include a mental illness in section 5AA. But in the absence of a formal complaint it is not possible for the Tribunal to decide whether the decision is unlawful under the Discrimination Act. The Tribunal notes that section 18(1)(a) of the Firearms Act makes relevant to the licensing decision the applicant's physical or mental health. In appropriate circumstances this allows the decision to refuse a licence to be based on the applicant's mental health. Similarly, information which indicates that it would be contrary to the public interest for applicant to have access to a firearm is also relevant to the decision under section 18(1)(c), and the applicant's mental health may in appropriate circumstances be relevant to this public interest criteria (see ground 3). It is noted that section 30 of the Discrimination Act provides that the Act does not make unlawful anything done necessarily for the purposes of complying with a requirement of a Territory law, and section 56 of the Discrimination Act provides that Part 3 of the Act does not make unlawful discrimination against a person on the ground of disability if the discrimination is necessary and reasonable to protect public health. It is possible that the licensing decision in this case will fall within the exceptions in sections 30 and 56 of the Discrimination Act. Mr P also raised the Disability Discrimination Act 1992 (Cth),[83] but similar comments can be made about the operation of this legislation, and at any rate this the Tribunal cannot consider a complaint under it.
Mr P particularly relied on an International Labour Organisation document entitled "Types of discriminatory writing".[84] He argued some of the letters from the AFP demonstrated discriminatory writing.[85] This document does say that in relation to disability and chronic illness, the "chief trap to avoid is emphasizing the disability or chronic illness rather than the person". This document does not assist with Mr P's claim in the Tribunal.

Ground 3: Information indicates that contrary to public interest

A third ground for refusing the application was a "belief on reasonable grounds that given your mental history (outlined at annexure A) that under section 18(1)(c) information held by a law enforcement agency (AFP) in relation to you indicates that it would be contrary to the public interest for you to have access to a firearm." Annexure A to the notice of decision was a summary of information held by the AFP relevant to the application and prepared on 22 March 2017.[86] This sets out 19 incidents. Sixteen of these occurred in the period 2004-2010; some of these suggest that when unwell, Mr P can act inappropriately and aggressively. The most recent events were the correspondence from Mr P of 5 February 2017, 19 February 2017 and 7 March 2017 (some of which are discussed above at [61] and [62]).
In addition there is now the medical evidence before this Tribunal. As with the second ground, this evidence indicates that Mr P does have a mental illness. This mental illness and events in Mr P's past at times combine to make him say things which suggest he may act out inappropriately on the basis of them.
The relevant discretionary criteria is that the Tribunal believes on reasonable grounds that information held by a law enforcement agency in relation to Mr P indicates that it would be contrary to the public interest for him to have access to a firearm. On the basis of the evidence before the Tribunal this ground is made out. In making the decision whether to grant a licence, the Tribunal must consider this discretionary criteria in deciding whether Mr P is a suitable applicant. Section 58(1) provides that the Tribunal must refuse to issue an adult firearms licence unless satisfied on reasonable grounds that the applicant is suitable. The Tribunal is not so satisfied that Mr P is a suitable applicant because of the information held by the AFP and presented to the Tribunal and therefore refuses the licence on this ground.

As noted above, section 58(1) of the Firearms Act provides that the Registrar, now the Tribunal, must refuse to issue an adult firearms licence unless satisfied on reasonable grounds: "(b) that the applicant is suitable". As to the requirement that the applicant be suitable, section 17 states that in making the decision, the Registrar, now Tribunal, must consider whether because of Mr P's mental health, he may not handle firearms responsibly (section 18(1)(a) (ground two)) and whether information held by the AFP in relation to Mr P indicates that it would be contrary to the public interest for him to have access to a firearm (section 18(1)(c) (ground three)). The terms and structure of these provisions, and the use of the phrase 'discretionary criteria', suggest that even if grounds two and three are made out, there may be some discretion in the decision-maker to find an individual suitable. Even if this is so, in this case the Tribunal is of the view that the nature of the concerns means that it is not satisfied that Mr P is suitable on these grounds. Because the Tribunal is not satisfied that Mr P is suitable, under section 58(1) the Tribunal must refuse the licence. The Tribunal therefore makes a substitute decision to refuse Mr P's application for a firearms licence.

[2] Exhibit R1, T documents, pages T8-15

[7] Exhibit R1, T documents, pages T26-27

[8] Exhibit R1, T documents, pages T24-25, 28-37, and 220-221

[11] Exhibit R1, T documents pages T5-7

[12] See in particular exhibit A10, executive summary email dated 7 June 2017

[16] Part 7 of the Firearms Act. The second step involves obtaining a permit to acquire a firearm under Part 9 of the Firearms Act, but this step is not relevant to this case

[17] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 419; Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430, 440

[18] Respondent's statement of facts and contentions, paragraphs [40]-[66]; transcript of proceedings on 11 September 2017, pages 25-29

[19] Transcript of proceedings on 11 September 2017, page 91

[22] BC Cairns, Australian Civil Procedure, (2014), at [13.270]

[23] Momcilovic v Queen (2011) 245 CLR 1 at [43]; see also Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277, O'Connor J at 304

[24] R v B [1995] 2 NZLR 172; Secretary of Department Health & Community Services v JWB (Marion'a case) (1992) 175 CLR 281; noting that these cases involved physical medical examination and treatment, but it is likely that the same principles apply to mental examination and treatment

[25] See R v Fearnside (2009) ACTLR 25, esp at [89] and [97]-[98]; Re Islam [2010] ACTSC 147; (2010) 4 ACTLR 235, esp at [236]; Momcilovic v Queen (2011) 245 CLR 1; Thomson v ACT Planning and Land Authority [2009] ACAT 38, esp at [38]

[27] Paul Rishworth, Grant Huscroft, Scott Optican and Richard Mahoney, The New Zealand Bill of Rights (2003), pages 256-257

[28] Andrew Butler and Petra Butler, The New Zealand Bill of Rights Act: A Commentary (2005), [11.8.4]-[11.8.6].

[29] R v Fearnside (2009) ACTLR 25 at [97]-[98]; Re Islam [2010] ACTSC 147; (2010) 4 ACTLR 235 at [236]; Momcilovic v Queen (2011) 245 CLR 1

[30] R v Fearnside (2009) ACTLR 25 at [93]. Justice Besanko's acceptance of this position at [94] is in my view limited by the further comments in [94], and by the discussion and acceptance of the formulation in R v Hansen [2007] NZSC 7; [2007] 3 NZLR 1 which is discussed by Justice Besanko at [95]-[98]

[31] R v Hansen [2007] NZSC 7; [2007] 3 NZLR 1 at [89] and [92]; which is quoted with approval in R v Fearnside (2009) ACTLR 25 at [97]-[98]; Re Islam [2010] ACTSC 147; (2010) 4 ACTLR 235 at [141], [199], [206], [232]-[236]. The comments in Thomson v ACT Planning and Land Authority [2009] ACAT 38 at [36]- [38] adopt the approach of Justice Besanko in R v Fearnside, and in my view should be read as limited by the terms of the discussion in that case, and not as accepting that section 30 cannot be used at the first stage of the process, that is the application of ordinary principles of statutory interpretation

[32] See paragraphs [20]-[22] above

[33] Respondent's statement of facts and contentions at [32]

[35] Exhibit R3, report dated 14 May 2010

[36] Exhibit R3, file note dated 12 May 2010

[37] Exhibit R3, file note dated 4 June 2010

[38] Exhibit R3, report which was faxed on 26 June 2015

[42] Transcript of proceedings on 11 September 2017, pages 81-82

[43] Exhibit R1, T documents, page T209

[44] Exhibit R1, T documents, at page T 225

[45] Exhibit R1, T documents, page T224

[46] Exhibit R1, T documents, page T220 at page T221

[48] Transcript of hearing on 11 September 2017, including pages 59, 62-63, 65, 69

[49] Transcript of proceedings on 11 September 2017, page 64

[51] Exhibit A2, page 1, email from Mr P

[58] Transcript of proceedings on 11 September 2017, pages 70-72

[59] Transcript of proceedings on 11 September 2017, page 45

[60] Exhibit A16, Anne P F Wand, Carmelle Peisah, Julie-Anne Strukovski and Henry Brodaty, "Firearms, mental illness, dementia and the clinician", (2014) 201(11) The Medical Journal of Australia, 674-678

[61] Transcript of proceedings on 11 September 2017, pages 44-45

[62] Transcript of proceedings on 11 September 2017, page 71

[63] Transcript of proceedings on 11 September 2017, page 66; see also page 72

[65] Exhibit A4, dated 20 May 2017; exhibit A7 dated 26 May 2017

[67] Exhibit A5, dated 22 May 2017; exhibit A8, dated 28 May 2017

[72] Transcript of proceedings on 11 September 2017, page 34

[73] Transcript of proceedings on 11 September 2017, page 35

[74] Transcript of proceedings on 11 September 2017, pages 35-36

[75] See above at paragraphs [20]-[22]

[76] Exhibit R3, report dated 14 May 2010

[78] Transcript of proceedings on 11 September 2017, page 66; see also page 72

[79] See above paragraphs [61]-[64]

[80] See the evidence of Dr Saboisky in the transcript of proceedings on 11 September 2017, pages 80-81

[82] See also Beaman v Commissioner of Police, NSW Police Force [2017] NSWCATAD 191

[83] Transcript of proceedings on 11 September 2017, page 88

[84] Exhibit A 17; transcript of proceedings on 11 September 2017, page 46

[85] Transcript of proceedings on 11 September 2017, page 47

Civil and Administrative Tribunal Act 2008

Human Rights and Responsibilities Act 2006

Zealand Bill of Rights Act 1990

Rights Commission Act 2005

Discrimination Act 1992

P v REGISTRAR OF FIREARMS (Administrative Review) [2018] ACAT 20 (8 March 2018)

Cases cited: Beaman v Commissioner of Police, NSW Police Force [2017] NSWCATAD 191

Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430

Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277

Rowlands v New South Wales [2009] NSWCA 136; (2009) 74 NSWLR 715

Thomson v ACT Planning and Land Authority [2009] ACAT 38

Waters v Public Transport Corp [1991] HCA 49; (1991) 173 CLR 349

YCO v Firearm Appeals Committee [2008] VCAT 966

P v REGISTRAR OF FIREARMS

At a glance

Court

Decision date

Source

Judgment (63 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (18)

P v REGISTRAR OF FIREARMS (Administrative Review) [2018] ACAT 20 (8 March 2018)