Pickford v Chief Commissioner of Police [2002] VSC 435

5. Section 3 of the Firearms Act defines "prohibited person" as including a person in relation to whom not more than five years have expired since being subject to an intervention order under s. 4 of the Crimes (Family Violence) Act 1987 or of an order of a corresponding nature made in another State or Territory. Section 17 of the Act provides that the Chief Commissioner of Police shall not issue a long-arm or hand-gun licence to a prohibited person. Section 189 of the Act provides, inter alia, that a person who has been subject to an intervention order or comparable order within the last five years may apply to the court for a declaration that the person is deemed not to be a prohibited person by virtue of being or having been subject to such an order.

8. In an affidavit affirmed in support of the application on 20 August 2002, the applicant deposes as follows:

"I was born on the 27th of May 1956 in the State of Victoria at Ringwood. I have been a firearm owner/user for over 30 years and am the holder of a current Tasmanian Gun Licence, No. 19407, for categories/classes A, B, C, D & H. The licence is current until October 2002. I have previously held Victorian gun licenses for long arms and pistols. I am employed by the City of Greater Shepparton as an Animal Control/Local Laws Officer. One of the requirements of this position is that incumbents must hold, or be able to obtain, a Victorian Gun Licence. In early June I was filling out an application (Form VP304A.) to obtain my Victorian gun licence; whilst doing this I realized that under current Victorian legislation I am classed as a Prohibited Person. The reason for this is that in November 2000 a restraint order was issued against me in the Launceston Court of Petty Sessions. The order was for 12 months and expired in November 2001. (Exhibit No.1) The basic background to the restraint order and why it came about is that in 2000 I entered into a partnership with a father and son to operate a firearm dealership in Launceston Tasmania. After several months of operation there was a disputation over financial matters and I made arrangements for an administrator/receiver to take control of the business in preparation for winding up the business. The day after service of notice to appoint an administrator my former partners eldest son/brother, a lawyer, applied for a restraint (intervention) order under the Justices Act 1959 alleging I had threatened to kill him. (Exhibit No.2) In the original application for the order the applicant requested for my gun licence to be revoked/suspended, all firearms in my possession handed over to Police and that I not apply for any gun licence or permit. All points were refused. It is my understanding that the applicant also made a request to Tasmania Police to revoke my gun licence. This was also refused. (Exhibit No.3) In addition to requiring a license (sic) for work I also seek to obtain a private gun license to enable me to continue participating in my chosen sports of hunting, collecting and competing with both long arms and pistols. As a hobby I also write on aspects of fishing, camping and shooting in Australia for an American newspaper; as these stories are based on personal experiences, since moving to Victoria and not being able to participate in my chosen sport has curtailed my writings. The only offence I have on record is for a minor traffic infringement about 5 years ago. I have an exemplary personal/work history including time as a member of the Australian Protective Service Counter Terrorist Response group and bodyguard for (former) Justice Butler of the Family Court; I was a firearms instructor for both the Australian Protective Service and the (Victorian) Federal Police pistol club; I had several years work in the Special Prosecutors Office (Costigan Royal Commission) under Robert Redlich QC and 3 years with the Dept. of Justice, Tasmania. If I cannot obtain the declaration that I am a `Non Prohibited' person under the Victorian Firearms Act 1996 I feel this will jeopardize my long-term position within the City of Greater Shepparton Council and also force me to depart Victoria for another State. (In all other States of Australia I am legally permitted to own/use firearms at this point in time.) Victoria Police Firearm Services have indicated to me verbally that they are not intending to contest this application..."

12. In accordance with s. 189(2A) of the Act, the application has been served on both the Chief Commissioner of Police and the person upon whose application the Tasmanian restraint order was made, and neither the Commissioner nor that person has appeared to oppose the application.

15. The applicant has appeared before me in person and understandably is not aware of any authority concerning the application of s. 189 and in the brief time available to me I too have been unable to locate any authority on the meaning of the section. The one article which I have found written on the subject does not contain any analysis of how the section might be approached: see Gun Laws, the s. 189 application by Warwick Walsh-Buckley in (1999), 73 Part 2, Law Institute Journal at p. 66.

18. Unguided by authority, however, it appears to me that the section was to enable a person to be relieved of the consequences of being a prohibited person when, viewed objectively, the circumstances which gave rise to that status, or developments since, or both in combination, impel the conclusion that it is not appropriate or desirable that the person be afflicted with the consequences of being a prohibited person. Such guidance as is to be derived from the Parliamentary debates is at least not inconsistent with that view[1].

21. In this case there are a number of considerations which, judged according to that test, lead me to the conclusion that the applicant should be relieved of the consequences of being a prohibited person for the purposes of Division 4 of the Act. First, it appears upon the uncontradicted evidence that firearms were not involved in the circumstances which led to the making of the restraint order. Secondly, there are strong indications that the application for the restraint order was motivated, at least to a considerable extent, by collateral motives. Thirdly, the applicant's record, which has been set out above, is exemplary. Fourthly, as the evidence shows, the applicant has a genuine and not unhealthy interest in firearms and substantial legitimate reasons for wanting to hold firearms licences under the Act. Fifthly, and perhaps most importantly, the Chief Commissioner does not oppose the application or suggest in any way that it should not be allowed. I think that I am entitled to take the view, and therefore I do, that, where the Chief Commissioner of Police chooses not to appear upon an application like this, the Commissioner does not know of or consider that there may be any reason why the application should not be granted.

24. For those reasons, I propose to allow the application and, subject to anything that the applicant has to say, the declaration I propose to make is that it be declared, pursuant to s. 189 of the Firearms Act 1996, that the plaintiff, David Alexander Andrew Pickford, is not, by reason alone of the restraint order made against him by the Magistrates' Court of Tasmania on 17 November 2000, a prohibited person for the purposes of Division 4 of the Firearms Act 1996.

27. Mr Pickford, the consequence of a declaration of that kind is that if application were made to the Chief Commissioner of Police for the issue of either a long-arm licence or hand-gun licence, you would not by reason only of the Tasmanian restraint order be a prohibited person. The declaration does not extend to any other divisions of the Act which are concerned with matters such as collectors' licences and dealers' licences, and for that reason I go no further than the material presently before me suggests is necessary. As I understand the material your requirement at the moment is simply for pistol licences and long-arm licences for the reasons expressed in the affidavit.

33. HIS HONOUR: Accordingly, the declaration of the court will be that pursuant to s. 189 of the Firearms Act 1996, the plaintiff, David Alexander Andrew Pickford, is not by reason alone of the restraint order made against him by the Magistrates' Court of Tasmania on 17 November 2000 a prohibited person for the purposes of Division 4 of the Act.

[1] see the Second Reading Speech of the Minister with reference to the Control of Weapons (Amendment) Bill in Hansard in the Legislative Council on 1 June 2000, at page 1593.