The applicant argued that the offending was due to his exhaustion and illness, and the decision should be set aside as these were isolated incidents that were unlikely to be repeated.

The applicant also argued that the fact that the Police did not confiscate his remaining firearms and the sentencing Magistrate did not cancel his licence, indicated that a more lenient approach should have been taken by the original decision-maker.

• The Tribunal does not attribute weight to the actions of other Police officers or the lack of ancillary order by the sentencing Magistrate. The matter is reviewed by way of a rehearing and therefore the Tribunal only needs to have due regard to the Registrar's decision.
• The applicant's conviction under the Firearms Act 2015 (the Act), and failure to comply with the requirements of the Act in relation to the safe handling, use, storage or transport of firearms justify a finding that the applicant is not a fit and proper person under sections 7(3)(a) and 7(3)(b) of the Act.
• The consequences of the conduct has the potential to create a real risk to public safety. The need to ensure public safety is described as an 'overriding' principle of the Act and the preferable decision would be to cancel the licence.

Administrative Review - Administrative Tribunals - Firearms Act 2015 - Review a decision of the Registrar of Firearms to suspend or cancel a license, 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, 35, 47

Firearms Regulations 2017 reg 26,

For the respondent: Ms H Nikoloff, Crown Solicitor's Office

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

1. On 2 April 2019 Mr Schinckel was convicted of two summary offences for contravening the Code of Practice for the Security, Storage and Transport of Firearms, Ammunition and Related Items arising out of an incident where two of his firearms were stolen from his unlocked car.
2. On 4 May 2020, a delegate of the Respondent (hereafter "the Registrar") decided that Mr Schinckel was not a fit and proper person to hold a firearms licence, and cancelled the licence. In doing so, the Registrar remarked that Mr Schinckel's breaches of the Firearms Act 2015 (the Act) and Firearms Regulations 2017 (the Regulations) were 'incongruous with the actions of a responsible firearms owner and did not inspire confidence that he would properly comply in the future'.
3. Mr Schinckel has applied to the Tribunal for review of that decision, and contends that he is a fit and proper person to hold a firearms licence, with the circumstances of the offending being an isolated oversight and unlikely to be repeated.
4. The Registrar maintains that the Registrar's decision was the correct and preferable decision and should be affirmed, submitting that Mr Schinckel's conduct was a serious breach of his obligations as a firearms licence holder with the result that two weapons have been stolen and thus created a significant risk to the community.
5. The Tribunal has jurisdiction to review the decision to cancel the licence pursuant to s 34 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act) and s 47 of the Act. I am to examine the decision by way of rehearing, and must reach the correct or preferable decision. I must have regard to, and give appropriate weight to, the decision of the original decision-maker.
6. The Registrar may cancel a firearms licence on any ground on which the Registrar might refuse an application by the licensee for such a licence: par 20(6)(d) of the Act. The Registrar may 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 par 15(1)(b) of the Act.
7. Among other matters, a person may be taken not to be a fit and proper person under the Act if the person has not complied with the requirements of the Act in relation to the safe handling, use, storage or transport of firearms, or has been found guilty of an offence under the Act: s 7(3) of the Act.
8. Relevantly, in deciding whether a person is a fit and proper person for a purpose under the Act, I may have regard to the reputation, honesty and integrity of the person and their associates, and must have regard to any risk of the person using a firearm for an unlawful purpose, using the firearm to harm himself, any risk that the person will injure or harm another by the use or threatened use of a firearm, and any risk of the person failing to exercise continuous and responsible control over the firearm. In that connection, regard may be had to the person's past behaviour (among other matters).
9. As to the events that gave rise to the Registrar's concerns about Mr Schinckel's fitness and propriety to be the holder of a firearms licence, it is convenient to extract parts of the sentencing remarks of Magistrate Anderson:

... But at about the time of this offence you chose to put two firearms in your Ute, one behind the passenger seat and one in a well in the cabin. You chose to put them there while you went and did your work hay baling. You thought that you might go to your father's place when you finished work to shoot targets with the Remington rifle and to try and fix the hand gun. You did not actually do that. You worked a very, very long day. You returned home, you parked your car in a central location at your house in Naracoorte. You did not lock your Ute, you went to bed and when you eventually thought to yourself "gosh where are my firearms", you went and you checked your car and they were not there.

At some stage somebody has taken them. Most likely not when you were out working on the rural property ... but most likely when a car with two firearms is parked in the centre of Naracoorte.

On this one day, because you were tired, over worked and perhaps not of particularly good physical health, you were lax. You did not think about your firearms when you returned home. You did not take them out of the car, assuming they were still there because you do not know that, and you did not put them away into your firearms safe. That is what a proper owner of firearms should have done, particularly when the firearms are in an urban location where people are around.

1. Her Honour later also observed (relevantly as to the events) that the failure to secure the firearms probably only occurred over a period of 24 hours. Her Honour further accepted that Mr Schinckel reported the matter to the police 'very, very soon' after Mr Schinckel discovered the firearms were missing.
2. Mr Schinckel adopted his written witness statement at the hearing. He was not cross-examined on this statement. Mr Schinckel has elaborated upon the circumstances affecting him in December 2018 leading him to be run down to the point of exhaustion. He elaborated on the circumstances that had resulted in him working 26 hours between 8am on 1 December 2018 and 10am on Wednesday 12 December 2018. Mr Schinckel's best recollection is that he had put the two firearms in his car as he was planning to take them to his father's property for various purposes as he had done a number of times previously that month. He explained that it was Friday morning 14 December 2018 that he had reached the point of getting in a few hours of recreation and then discovered that the firearms were missing from both the safe in his home and the car.
3. I had noted elsewhere in the Tribunal papers a reference to Mr Schinckel having left the firearms in the vehicle for not less than ten days. This is attributed to an interview between Mr Schinckel and officers conducting a firearm audit. This is disputed by Mr Schinckel, and I note that the sentencing Magistrate found that the firearms had been in the vehicle for 24 hours. The Registrar asks me to proceed on the factual findings of the Magistrate, which also reflect the evidence in Mr Schinckel's statement.
4. An issue that has arisen in the course of the review relates to the suggestion evident in the Tribunal papers that the delegate was of the view that Mr Schinckel ought to have been prosecuted for an offence where conviction would have mandated the cancellation of his firearms licence, rather than give rise to discretion to cancel the firearms licence.
5. Under the legislation, if a person is found guilty of a prescribed offence, the Registrar must cancel the licence: s 20(7) of the Act. An example of a prescribed offence would be an indictable offence against s 35 of the Act: reg 26 and Sch 2, Pt 4 item 4(g)(vi) of the Regulations. In fact, Mr Schinckel was charged with a minor indictable offence, described in the information and summons as a 'category B' offence. That charge however was withdrawn. There is some contention as to whether the withdrawal of the charge was done in consultation with the Firearms Branch, but there is some uncertainty about this.
6. The relevance of this controversy is however largely tangential to the issue I must decide, but as it was significant in the hearing I will elaborate upon it.
7. On behalf of Mr Schinckel it is contended that the delegate misdirected himself in considering the question of cancellation by placing weight on a point of view that the prosecution of Mr Schinckel for non-prescribed offences instead of the original prescribed offence was incorrect. There is initially some force in that because a notation made by the delegate records as much (T66) and in requesting review of a draft proposal by his staff to return Mr Schinckel's licence subject to conditions records that the delegate made a note that "if an exception existed I would consider allowing retaining [certain firearms] for farm practices only" T67. This note is capable of being construed in context as the delegate observing that he did not have capacity to make any such exception (which would indeed be the case if Mr Schinckel had been found guilty of a prescribed offence). Such an observation would have been incorrect. It is argued therefore that the delegate was misdirecting himself and proceeding as if he did not have discretion when in fact he did.
8. Ms Nikoloff contends, correctly in my view, that the decision under review and its associated reasoning is not to be found in the notations at T66 and T67, but rather in the decision record at T8 and onwards. In that document, the delegate expressly identifies s 20(6) and s 7, and addresses the evidence relating to fitness and propriety.
9. Furthermore, and in any event, even if the decision record itself disclosed that the delegate had misdirected himself and proceeded on the basis that he had no discretion (which it does not) that would not be conclusive of my decision. While I am to assess what due weight is to be attached to the delegate's decision, and such an error (had it been made) might indicate I should attach no weight to such a decision, my role is to re-hear the matter and reach the correct or preferable decision.
10. While there was some discussion at the hearing as to whether Mr Schinckel may or may not have had a defence for the withdrawn charge, whether the elements of the withdrawn charge could be established on the facts found by Magistrate Anderson and whether the withdrawal of the charge was made in conjunction with the Firearms Branch, my view on reflection is that these matters are of peripheral relevance at best, and more properly viewed as legally irrelevant.
11. Mr Schinckel has not been found guilty of a prescribed offence, but has been found guilty of an offence under the Act. Furthermore, it is also the case that the conviction demonstrates that Mr Schinckel has not complied with the requirements of the Act in relation to the safe handling, use, storage or transport of firearms. Both these matters are matters that may justify a finding that he is not a fit and proper person under the Act, par 7(3)(a) and par 7(3)(b).
12. Another matter addressed during the hearing related to the Magistrate's decision not to issue ancillary orders cancelling the licence, and moreover the Police prosecutor's decision to seek those orders in the first place. On Mr Schinckel's behalf, it was pointed out that following the loss of the firearms, Police officers attended his premises and audited his remaining firearms, and at that time took no steps to confiscate them. On behalf of Mr Schinckel, it is further pointed out that officers within the Firearms Branch can be seen to have recommended a more lenient response before that proposal was effectively rejected by the delegate.
13. On review however, it now falls to me to rehear the matter. I do not do so by attributing weight to the actions of other Police officers and weighing them against the actions of the delegate. Likewise, the Magistrate made it clear that she did not make ancillary orders to cancel Mr Schinckel's firearms licence because she was not asked to do so. Her Honour can be seen to speculate that perhaps this was because the police then involved thought Mr Schinckel was a fit and proper person in a general sense to have a firearms licence. Perhaps those officers did hold that view. However, it is now clear enough that the delegate (and therefore the Registrar) doesn't think so. Other than by paying due regard to the delegate's decision, identifying the differing approaches within the Police who have dealt with this matter is not to the point.

Is Mr Schinckel a fit and proper person for the purposes of holding a firearms licence?

1. As mentioned above, Mr Schinckel has now been convicted of offences under the Act.[1] These are no minor matters, even if they were dealt with summarily. The Magistrate found it necessary to give earnest consideration to the question of imprisonment given the consequences of firearms falling into the wrong hands. Her Honour decided against this course because she accepted the failure to secure the firearms only occurred over a period of 24 hours, and Mr Schinckel promptly reported their loss to the Police.
2. It is also the case that Mr Schinckel has not complied with the requirements of the Act in relation to the safe handling, use, storage or transport of firearms.
3. It is plainly open to me, in light of these matters, to conclude that for these reasons Mr Schinckel is not a fit and proper person to hold a firearms licence. In my view, the convictions and conduct behind them go to the heart of fitness and propriety to hold a firearms licence. It is manifestly unacceptable for firearms to be left unattended in unlocked vehicles for any length of time. Such conduct is beyond careless. The scheme of the Act imposes onerous and expensive obligations on the owners of firearms to secure their firearms from theft, but all of this is defeated by conduct of the nature that led to Mr Schinckel's convictions. I am conscious that I am assessing whether Mr Schinckel is a fit and proper person for the purposes of the Act, and not in a more general sense. For the purposes of the Act therefore, the conduct giving rise to the convictions must be viewed as incompatible with fitness and propriety to hold a firearms licence.
4. I may have regard to the reputation, honesty and integrity of Mr Schinckel. In this regard, nothing adverse is known to me. To the contrary, I accept that the observations and opinions of the witnesses in the statements at T57, 59 and 60 (Messrs Donaldson and Jones and Dr Hole) are accurate and genuinely held. From these statements I accept that Ms Schinckel has been previously observed to be very particular about firearm security and the charges are out of character. I accept that Mr Schinckel is a respected member of the community and a volunteer. I note that Mr Schinckel had taken care to install a firearms safe that exceeded the required measures. I note Dr Hole's perception that Mr Schinckel is someone who learns from difficulties and therefore it is likely he would take extra steps to ensure such an event (the theft of firearms) never happens again.
5. I note also the remarks of the Magistrate who observed:

You are like most people I see in this area who have committed firearms offences. Good people, pillars of the community, people who usually do the right thing, people who need firearms, people who have had firearms for a long period of time and equally people who do the wrong thing, because you did the wrong thing with these two firearms and as a result of doing the wrong thing you have contributed to the proliferation of illegal firearms that are in our community and that are used to commit heinous crimes. In my experience down here, as I have said, most of the firearms offences that are committed are committed because people are lax and people even if only for one day do not take their obligations under the Firearms Act seriously.

1. I have taken into account that Mr Schinckel has a good reputation, and is honest. I take into account for example that he promptly reported the loss of the firearms to Police. However, I place less weight on Mr Schinckel's general reputation and honesty than I do on the fact of his careless conduct in relation to the firearms, because in my assessment that is of greater significance as to whether he is a fit and proper person for the purposes of the Act.
2. I must have regard to any risk of Mr Schinckel using a firearm for an unlawful purpose, whether there is any risk of Mr Schinckel harming himself or others through the use or threatened use of a firearm. On the evidence before me there is no real risk in respect of any of these matters.
3. I must have regard to any risk of the person failing to exercise continuous and responsible control over a firearm. Mr Schinckel has described his embarrassment at losing his firearms licence, and I note the heavy fine imposed by the Magistrate. The submission made on Mr Schinckel's behalf to the effect that he had learned his lesson and is unlikely to allow another lapse in care has force. On the other hand, in respect of all considerations in s 7(4), regard may be had to the person's past behaviour.
4. It is difficult in light of Mr Schinckel's past behaviour to discount all risk that he will again fail to exercise continuous and responsible control over a firearm. In this regard, I found the submission on behalf of the Registrar to the effect that exhaustion and illness described by Mr Schinckel as contributing to his lapse are not such uncommon events that they will not be repeated. I am not persuaded that it can be said that there is no risk that the carelessness with which Mr Schinckel attended to his obligations as the holder of a firearms licence holder will be repeated.
5. Having considered the matters that I may take into account in accordance with section 7 of the Act, and all other circumstances known to me about the events leading to Mr Schinckel's conviction and his personal circumstances, I have formed the view that he is not a fit and proper person for the purposes of the Act.

1. As I have found that Mr Schinckel is not a fit and proper person to hold a firearms licence, the discretion in s 20(6) of the Act may be exercised. The Registrar contends that having regard to the underlying purpose of the Act and its objects, the preferable discretionary decision is to cancel the license.
2. Section 3 of the Act provides that firearm possession is a privilege that is conditional on the over-riding need to ensure public safety, and to improve public safety by (relevantly) promoting the safe and responsible storage, transport and use of firearms. An object of the Act is also expressed to be to provide strict requirements that must be satisfied in relation to firearms, including requirements to ensure the safe and secure storage and transport of firearms. It can be seen therefore that the conduct that resulted in Mr Schinckel's convictions is conduct that contravenes the objects of the Act. It can also be seen that the consequences of the conduct, which has resulted in the theft of firearms, has the potential to create a real risk to public safety. The need to ensure public safety is described as an 'overriding' principle of the Act.
3. On Mr Schinckel's behalf, it is contended that I may exercise other powers available to the Registrar to impose conditions on Mr Schinckel's firearms, and pointed to the conditions that were considered by officers in the Firearms Branch before the delegate rejected those recommendations and decided to cancel.
4. I consider that if I were to do so, I would do so as an adjunct to the exercise of discretion in s 20(6) of the Act, as envisaged for example by s 20(9) of the Act.
5. I have considered this proposal carefully, recognising that Mr Schinckel has demonstrated that he is generally of good reputation, honesty and integrity, and accepting as persuasive the contention that the criminal consequences for Mr Schinckel of his offending have been severe and are likely to change his behaviour. I note again the evidence of Mr Schinckel regarding the difficulties and embarrassment he has faced since losing his licence.
6. On balance however, I view the circumstances leading to Mr Schinckel's conviction to demonstrate a degree of carelessness and oversight that are indeed incompatible with holding a firearms licence when regard is had to the objectives and principles behind the legislation. I am ultimately not persuaded that it is appropriate to reduce the administrative consequences for Mr Schinckel arising out of the conduct to mere restrictions on his licence. I accept the submission that the preferable decision is to cancel the licence. I consider that exercising the discretion in this way is most compatible with the principles and objects of the Act.

1. The Tribunal orders that the decision subject to review is affirmed.

[1] The specific contravention of the Code of Practice is not listed on the information or in the sentencing remarks, but I accept from records in the Tribunal papers and the submissions of the respondent that the summary offences were for contravention of cl 5(2) of Sch 1 to the Regulations: A person who has possession of a firearm...must take all reasonable precautions to prevent the firearm...from being lost or stolen or coming into the possession of an unauthorised person.