Wilson v Commissioner of Police, New South Wales Police Force

NCAT Administrative and Equal Opportunity|2015-02-16

Reason for decision

The applicant Glenn Stewart Wilson is a 48-year-old businessman living at Parkes, New South Wales. Growing up in the country, he was familiar with firearms from an early age and in 1991 was issued with a shooter's licence, which was renewed in 1994. He received a target pistol licence in 1994 which he held until that category of licence was abolished in 2000. In 1988 he was issued with a category ABH firearms licence, which was renewed in 2003 and 2008. The licence authorized him to possess and use certain categories of rifles, shotguns and handguns.

Applicable legislation

The Firearms Act s 11 provides as follows: 11 General restrictions on issue of licences (cf 1989 Act s 25, APMC 4, 5, 6) (1) The Commissioner may issue a licence in respect of an application, or refuse any such application. (2) A licence must not be issued until after the end of the period of 28 days following the day on which the application is made. (2A) Subsection (2) does not apply if the application is for the renewal of a licence (including the renewal of a category A or B licence that involves the addition of either of those licence categories to the previous licence). (3) A licence must not be issued unless: (a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and (b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and (c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and (d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State. (3A) Despite subsection (3) (b), the Commissioner may require an applicant for a licence to complete such firearms training and safety courses as are approved by the Commissioner in relation to the category of licence concerned. (4) Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of: (a) the applicant's way of living or domestic circumstances, or (b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or (c) the applicant's intemperate habits or being of unsound mind. (5) A licence must not be issued to a person who: (a) is under the age of 18, or (b) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or (c) is subject to an apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to such an order (other than an order that has been revoked), or (d) is subject to a good behaviour bond, whether entered into in New South Wales or elsewhere, in relation to an offence prescribed by the regulations, or (e) is subject to a firearms prohibition order. (5A) A licence must not be issued to a person if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that: (a) the person is a risk to public safety, and (b) the issuing of the licence would be contrary to the public interest. (5B) The Commissioner is not, under this or any other Act or law, required to give any reasons for not issuing a licence on the grounds referred to in subsection (5A). (6) Except in the case of a firearms dealer licence or where the applicant's genuine reason is business or employment, a licence must not be issued to a person who is not a natural person. (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. (8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence.
The issue in this application is thus whether it is not in the public interest for the applicant to be issued with a firearms licence, or alternatively whether the applicant is not a fit and proper person who can be trusted with firearms without danger to public safety and the peace, or both.

Respondent's evidence

The respondent relied on the s 58 documents as well as certain other documentary evidence, and called three witnesses to give oral evidence.
The respondent's first witness was Detective Senior Constable Luke Maynard, of the Firearms and Organised Crime Squad of the State Crime Command. He adopted his statement of 10 January 2013 (part exhibit R2) in which he described his role in executing a search warrant at 10 Hillcrest Avenue, Parkes, on 19 September 2012. He stated that he and other police had located 9 x 10 round magazines, 2 x 15 round magazines, 2 x 17 round magazines and 2 x 30 round magazines. He then described the subsequent arrest of the applicant on a charge of possessing prohibited weapons, the administering of the caution and the applicant's refusal on legal advice to participate in a formal interview, stating only that he was unaware that the magazines were prohibited, and that if he had been aware of it he would have disposed of them.
In cross-examination the witness acknowledged that he was unaware of any evidence that the applicant had any criminal links or associations. He also conceded that at the time of the search at the applicant's house, he and at least one other officer had been unsure about whether the large-capacity magazines they found were prohibited items or not, and that outside advice had been sought to clarify the situation.
The respondent's next witness was Detective Senior Constable Brett Watson of the Firearms and Organised Crime Squad. In his statement dated 9 January 2013, he explained that in September 2012 he was given the carriage of the investigation into the current matter. He had played no part in the execution of the search warrant but had inspected the various Glock magazines at Parkes police station and had later delivered them to the police Forensic Ballistics Examination Unit in Sydney. He arranged to meet the applicant at Parkes police station on 18 December and explained to him that his licence was to be suspended. Following his arrest and caution, the applicant had declined to be interviewed about the matter but said he was not aware that they were prohibited. The applicant had subsequently attended Forbes police station where he surrendered his registered firearms pending the determination of the matter before the Local Court and any subsequent Firearms Registry action.
In oral evidence the witness said that the applicant had the appropriate licences for two Glock pistols, a target pistol and a number of spare barrels and frames. The letter to Hyperfire dated 19 July 2012, which had been obtained under the search warrant, was the first parts order that he had seen in his 2 ½ years with the firearms squad, but it appeared to be for "quite a fair bit of parts". In his experience it was uncommon for an individual to place such a large order. Currently he was aware of an order for $5000, but that was for ammunition.
He could not recall seeing any other barrels without serial numbers on them. When a weapon was complete, the police did not look for a separate barrel number. It could happen, however, that criminal elements could switch barrels on another gun for the purpose of committing a crime with it. The Glock manual found during the search was not a restricted or special item. There was no evidence of any intent on the applicant's part to manufacture guns or anything to suggest criminal links. The applicant's large parts order had prompted concerns because as a tradesman he might be capable of manufacturing a pistol. If the order had been executed (which it was not), he would have had enough parts to make up to 20 guns. People get better at that kind of work as they do more of it. There had been insufficient evidence for any charge other than the one relating to the magazines. All the frames taken in the search had been registered.
Although there was no evidence of wrongful intent, some people will manufacture guns for a wide variety of reasons, and the applicant had the two Glocks that he could have worked from. Sometimes outlaw motorcycle gangs make use of people with a clean history ("cleanskins") to hold firearms for them. Some potential gunmakers could be licence holders, and might make weapons under duress. Others might do it secretly and not be detected. His estimate that the applicant could have made up to 20 guns from the parts ordered was based on the number of parts involved.
The applicant had discussed the magazines with the witness before the arrest and he had been open and honest with the police. He had declined to make a further statement only after he had been arrested and charged. The witness agreed that his discussions with the applicant had mainly concerned the magazines and that he had not asked any questions about the spare parts order.
Asked why he thought the applicant might be capable of making guns because he was a tradesman, the witness said that he operated a factory and was in the construction industry. He had specialized tools such as lathes and industrial-style machinery. He agreed that he had not actually seen a lathe or mill, but had observed a press drill. There was no evidence that he was a machinist, nor that he had ordered the parts from any improper motive. After the execution of the search warrant, he could have used his license to make purchases or for similar purposes, but had not done so. Nothing had been hidden from the police. The .22 rifle in pieces found in a shed in a leased area of the property was found to have no connection with the applicant.
The investigation had been terminated at a higher level for a variety of reasons by the State Crime Command. As the shipment of parts had been blocked, it would not be possible to conduct a controlled operation.
The respondent's third witness was Mr Steven L Wilson, a Crime Scene Officer attached to the Forensic Ballistics Investigation Section, Forensic Services Group, Sydney. He has extensive qualifications and experience in the examining, identification and testing of ammunition, ammunition components, firearms and prohibited weapons. His duties also include examining crime scenes involving firearms and the collection, preservation and examination of the exhibits. He has attended autopsies performed upon shooting victims and successfully completed a course conducted by Glock (Austria), obtaining an armourer's certificate relating to Glock pistols. He previously served for 18 years in the police force, during which time he was a weapons instructor for 13 years.
In his expert certificate and statement dated 18 November 2012 (part exhibit R2), Mr Wilson declared that he had examined the guns, barrels, magazines and other parts seized in the execution of the search warrant and found inter alia that the two Lone Wolf Company manufactured pistol barrels were designed to suit a centre fire 9 mm Parabellum calibre Glock manufactured self-loading pistol and its variants. In his opinion they were firearm parts as described in s 4(1) of the Firearms Act. The two Glock pistols were in working order.
Also examined were two Glock detachable box magazines with a capacity of 31 9 mm Parabellum cartridges each, suitable for use in the two pistols, two Glock manufactured magazines designed to suit a centre fire .40 Smith & Wesson calibre Glock semi-automatic pistol with a capacity of 15 rounds each, and two Glock magazines with a capacity of 17 9 mm Parabellum cartridges. All were in his opinion firearm parts as described in s 4(1) of the Act and also fell within the description of "firearm magazine" in cl 4(4)(f) of schedule 1 the WP Act.
In his evidence in chief at the hearing, Mr Steven Wilson said it would not be possible to assemble a gun without a frame, but it would be possible today to replicate a suitable frame. The tolerances would be the difficult part. He had seen a number of manufactured frames, most of which had been produced by fitters and turners or persons with similar experience. He could not think of why a shooter would need a large capacity magazine for target or sport shooting.
The number on the barrel would help in tracing, but it was not uncommon to find barrels without serial numbers, especially in cases of amateur manufacture.
The witness was then taken through the list of parts and other items ordered by the applicant in exhibit R3 and asked whether any of them could be described as "wearable parts", in the sense that they are subject to wear in regular use and may need replacing. Of the parts listed, Mr Wilson identified over half as parts or components that might wear out or be lost, but some of those only after heavy use. Barrels, for example, would not normally need replacing under 10,000 rounds. Some of the manuals listed would be required for normal maintenance and would in any event be handy to have. His team would be interested in buying the book on customization. Some of the modifications would be legal, but others not, such as conversion to full automatic fire.
The witness did not think all those parts would be needed for two pistols. For example, the applicant was seeking to order 40 front sights; the police would not sight so many front sights in a year for 17,000 guns.
Asked if the items in exhibit R3 comprised everything needed to manufacture pistols, Mr Wilson replied that most of the necessary parts were there except the frame. Over 20 guns could be assembled if frames were available. The quantities involved in the order would raise questions about a person owning 2 to 4 guns. At least a dozen would be closer if such quantities were to be purchased.
The witness had seen the Glock manual (exhibit R4) before, when in training and also at work. It was given only to those who had completed the Glock armourer's course. A keen user might undertake that course. The applicant had been a club armourer and the functions of that position include repairing malfunctions and arranging secure storage. The witness was not aware of the qualifications needed for a club armourer.
In cross-examination Mr Wilson agreed that the frame is the main component of the weapon, which cannot be made to work without it. It carries a serial number which is the key number in identifying the weapon. To make such a frame would require machining skills, although the frame could be made using a hacksaw and square tubing. Injection equipment would be needed to replicate the standard Glock polymer frame. He thought that a shooter owning a registered frame could legally have a gun assembled from parts but he was not fully aware of the Registry procedures for doing so.
The witness did not think that the skills needed by gunsmiths for long arms were greatly different from those for working on handguns. All gunsmiths he knew became curious about the process and developed their knowledge of technique as much as they could.
He agreed that a flash hider (one of the items ordered) would be useless on a pistol, especially in target and sport shooting. On the other hand the bench mat was something that all shooters would have, as were some of the tools. The book on Glock Exotics could be regarded as a collectible item, but as many of the modifications would be illegal, customs might block its importation.
Mr Wilson was asked whether a user wanting a customized gun, for example for metallic silhouette shooting (a type of combat competition which involves firing at steel targets set at various distances with the aim of knocking them over), would be better advised to purchase his own parts and have a licensed gunsmith assemble them, rather than order a complete weapon from the manufacturer. He replied that it could be cheaper, especially if aftermarket parts were used. Most manufacturers, however, offer a list of options.
Metallic silhouette shooting, which uses heavy cartridge loads, subjects weapons to higher pressures, but the manufacturer tests them well beyond their advertised limits. More wear could result if heavy loads were used, but the police have had no wear problems with Glocks. Heavier loads were not prohibited, but in his view they were stupid as they could generate excessive pressures. Nor was it a great deal cheaper to handload one's own ammunition. A safe load for the Glock model 17 is the factory-recommended load: a 95 grain bullet with a 110 grain powder load.
It was put to Mr Wilson that if for some reason all handgun and parts imports were banned, or ceased for some reason, the supply would dry up, but the owner of a supply of parts could continue as before. Mr Wilson replied that he could not answer that question, nor did he know whether the parts prices listed in exhibit R3 were particularly low. Asked whether if a shooter owned six or eight different Glocks, for example for metallic silhouette shooting, the parts order in exhibit R3 might be justifiable, the witness replied that it might be justifiable in the case of a person owning 12 pistols. Even then it might be somewhat excessive, but more understandable. At that point the hearing was adjourned part heard to 23 March 2015.
On the adjourned date Ms Thangasamy on behalf of the respondent asked the witness whether, if the licensee was modifying a Glock or producing one from parts assembled by a dealer, he would need so many parts. The witness said he would not, that there were far too many parts for use in one gun. But the owner would need frames, which were not included in the order. He could customize the weapon by adding extras such as special sights, a long barrel, a flash hider and a compensator for target shooting. If planning to use heavier cartridge loads he would need to have some components for strengthening the mechanism. Most of the items in the list were standard, and given Glock durability, some parts would not need replacing for twenty years.
In cross-examination Mr Wilson conceded that the barrels ordered were not standard, being threaded for a compensator and accordingly longer. Even a Glock with a long target barrel could be used as a concealable weapon or for other purposes. He agreed that police on average fire 100 rounds per year, or 300 between the standard three-yearly inspections, while competition shooters could use 300 rounds in a weekend. Nevertheless, he knew competition shooters who had no wear problems with Glocks.
In re-examination the witness said a longer barrel threaded for a compensator would be common for competition use. The .45 barrel could be used for target shooting, but would need a special frame and other components. Some competitive shooters probably fire the .45, but it is heavy and the rounds are expensive. There was also one .40 barrel on the list. It could not be fitted in a 9 mm but could legally be used by a shooter with the appropriate permit.

Applicant's evidence

The applicant Mr Glenn Wilson had not filed a witness statement as such but gave oral evidence in chief ex tempore. He said he had been working in the family businesses since high school, including in the quarry where he was involved in drilling and blasting hard rock. Currently he receives a disability pension resulting from a severe back injury. He had earned Mines Department qualifications as a manager and was authorized to use large quantities of explosives.
Having become interested in shooting between about sixteen and eighteen years of age, he obtained a shooter's licence which he held for thirty years until it was replaced. He had been a member of the Parkes Pistol Club for over twenty years and had become interested in metallic silhouette shooting from about 2012, having visited a club which he was invited to join. He was keen to use a Glock for that purpose, and investigated a number of dealers in an attempt to obtain a custom-made silhouette Glock, but found that there was no dealer interest in custom Glocks. Eventually, he found the Hyperfire dealership in Queensland, which imports Lone Wolf aftermarket parts as well as genuine Glock parts. He had looked at the possibility of ordering direct from Lone Wolf, but Hyperfire's owner, a man he knew as Mike, was keen to serve that part of the market. His prices were already 50 percent lower than others were asking, but he offered an extra 25 percent discount if the applicant ordered a large quantity.
At that time the Australian dollar was worth about 97 US cents, but the experts on television had been predicting that it would fall back to 64 or 65 cents. He also attached great weight to his prior experience when federal and State governments had effectively banned semi-automatic long arms. That action and its consequences showed that the federal government could at some time in the future restrict the importation of handguns and parts as a result of some new shooting incident. In that event prices could soar and there would be supply problems. He had also been told some years ago by a range inspector that Australia had signed a United Nations agreement restricting private handgun ownership.
Accordingly, with his keen interest in metallic silhouette target shooting and his connection with Hyperfire, he began to consider what parts he would need if spares became unobtainable later. Further, although he could buy a new Glock for about $800, he could by using a mixture of parts make up a custom metallic silhouette gun which would be much cheaper than a special weapon ordered from the manufacturer. He made a point of not ordering any frames, however, because he did not want to give the appearance that he intended to use the parts to make complete pistols.
He also spoke to Mr Scott Chamberlain at the Horsley Park Gun Shop who had said he could obtain Glock frames for about $80, which could then be registered. He said the best course would be to arrange for a dealer to assemble a custom pistol and notify the Firearms Registry. He then purchased several frames from Horsley and notified the registry, but for some reason only received a registration certificate for one frame. When the police searched his father's house at Forbes, they found the registered frame, as well as the other frames, but said nothing about them. Lack of a certificate was not a breach of the legislation if the transfer had been recorded in a dealer's books. He speculated that police may have refrained from registering the frames in order to see what happened to them.
He had held a federal government Defence Act exemption for military self-loading rifles as a result of a club membership, but had handed in all his rifles and parts when the authorization was cancelled after 1996. The government had paid him $50,000 compensation for the confiscation, and he had kept most of it. As the Australian dollar was high, and he had the other concerns about possible future handgun import restrictions, he had ordered enough parts to last him for life, with the intention of using part of his compensation money for the purchase. He pointed out that after the general confiscation he had been approached by the National Parks Service who wanted to buy semi-automatic rifle parts from him because the government had destroyed all stocks and it was proving difficult to maintain the SLRs needed by their authorized shooters for wildlife culling.
The police had admitted that he had ordered all the parts lawfully and he had not been charged with any breach in that connection. Australian Customs had seized the shipment on entry and had returned it to the United States. He had expected scrutiny as a result of placing such a large order and had been under surveillance for months. Their searches revealed no wrongdoing, except in relation to the oversize Glock magazines that he had purchased at the Penrith gun show as curios or collector's items on 19 May 2012. Uniformed and plain-clothes police were present in strength on that occasion and he had purchased the magazines openly, as had many other people present.
The witness explained that he has two addresses, one at his father's house at Forbes, which is his registered gun storage location where he has a 2-tonne bank safe for the purpose. He also shares a house at Parkes with his two sons, where he keeps a small safe that contained the six magazines and other magazines. He had placed the large magazines in the safe because he had returned from Penrith to Parkes, not Forbes, and had not touched them after that. When the police took possession of them, they told him that they were not sure whether or not the magazines were a restricted item, but later said they were. He had also asked a Detective Durham what he had done wrong, but had received no answer.
Subsequently he had several times contacted DS/Const Brett Watson, who wanted to interview him, but on legal advice he declined to agree. He was then told that he would be charged and arrested in connection with the magazines. Between about 19 September and 22 December 2012 when he was charged, he still held his licence subject to no restrictions. Nevertheless he made no attempt to collect his guns or to re-order spares. His licence was not suspended until three months later. After a discussion with his legal adviser, police decided not to pursue their allegation that he might have been intending to manufacture a large number of pistols, as there was no evidence of intent. He had kept the large magazines in case he was able to obtain a permit for them. At the hearing on 10 May 2013 he received a s 10(1)(a) discharge with no conviction, so that he would be able to recover his licence.
His licence was later cancelled and an internal review affirmed the revocation. He then appealed to this tribunal, but by the time the matter was ready for hearing his licence had passed its expiration date in any event. He applied for a new licence, which was refused in turn, the refusal being affirmed following an internal review.
He denied any intention of manufacturing pistols. He did have a club armourer's license for the Defence Act club. That had come about because the relevant New South Wales association had advised clubs that they should apply for an armourer's license, as they could be helpful later, for example for rifle transfers, and a licence could become harder to obtain later. As he was club secretary, the applicant applied for, and was issued with, the long arms armourer's license. It was never used for any purpose and was allowed to expire without renewal. He had never had any difficulties with the law, nor any firearms problems. He does not drink or smoke, nor has he ever used drugs. He has never had a traffic or work accident and has held an explosives licence for 30 or more years.
In cross-examination the applicant said that during the 2011 - 2012 period he had mainly been working in the family business at the quarry, driving a truck and assisting with repairs, which are continually needed in a quarry. He had for example helped change a loader tyre, removed parts necessary to rectify a hydraulic leak and similar tasks. He had no skills as a fitter or turner, although he did "play with" a lathe at high school, but had never trained with a lathe or mill or made anything with them. During the period in question he had also had some involvement with the family concreting business.
He had been the only club armourer at the Forbes Military Rifle Club, but had never repaired anyone else's rifle, or any other, because he had not been asked to do so and did not wish to have that responsibility. The licence had been maintained in order to facilitate future transfers. He had, however, "fiddled with" his own guns, such as by cleaning, tightening loose screws, replacing some springs and tightening sights. He had never tried to assemble or modify a Glock, not having any need to do so as he was only using paper targets. Metallic silhouette target shooters can obtain a permit for a larger calibre than .38, and he was in the early stages of applying for one but had never held any type of special pistol licence. He had intended to have some Glocks custom-made with longer barrels for a compensator and with traditional spiral rifling, rather than the polygonal rifling for copper jacketed combat bullets that is used in standard Glocks. Once he had obtained the appropriate licence, he wanted to use the larger calibre barrels.
He had never had to replace any Glock parts because he had not had the pistols long enough to need any. In his earlier discussions with Mike, he had only been enquiring about a small number of parts, but subsequently learned that for a larger order he could obtain a bulk discount much more favourable than the initial 25 percent offered. He was not planning to collect all the parts he ordered, not having a permit for all of them, and would have left some with the dealer until he obtained a permit. Then he would store them in the 2-tonne bank safe. He had never seen a flash hider for a pistol, but had ordered one for each type of barrel just as a curiosity. He had ordered ten disassembly tools because they were only $9.95 and with their distinctive shape were something of a collectible. The lasers would help in competition targeting and for zeroing the gun. He had ordered large numbers of parts because he would need different pistols for different types of metallic silhouette shooting and planned to use about eight guns for that purpose. He had tried to order .22 conversion kits for practice, but had been unsuccessful because they were in heavy demand.
He had joined the metallic silhouette pistol club and had attended their competitions, but had not done a great deal of shooting there at that stage. He was very much taken by the sport, however. At the time of the pistol buyback he had surrendered a .22 semi-automatic pistol that had a barrel which was too short under the new regulations. He also handed over a 10 mm semi-automatic because of the calibre. He had been required to present himself at the police station with all his pistols, where he was told what was now permissible. He had not bought parts for future resale, but because he believed there was a risk of an import ban. As a result of the long arm ban, the cost of a self-loading rifle is prohibitive. He thought the same thing could happen in relation to handguns. He had ordered the book on "exotic" Glock weapons and modifications out of pure interest, as there were only three Glock books available on the Lone Wolf website, and he ordered them all. He did not investigate the contents as there were no further details given.
He had purchased the .40 and other oversized magazines as collectibles as they were a little different. He was unaware that they were restricted and had bought them openly. He repeated that he had never had any intention of selling parts or of manufacturing or assembling guns illegally. He had never illegally modified a weapon and knew what a prohibited pistol was, having read many descriptions of them. He reiterated that the comparison between police and competition usage and wear rates was poor because the competitive shooter could be using a pistol fifty or sixty times more than a police officer. Expecting to be shooting into his 70s as his father does, he wanted to have an ample supply of parts. His thinking might have been "outside the box", but he had no intention of infringing the regulations.

Respondent's submissions

The respondent had filed written submissions which contended inter alia that the refusal to grant the applicant a licence should be affirmed, first, on the ground of public interest under s 11(7) of the Act, as the applicant had breached s 7(1) of the Weapons Prohibition Act by possessing six pistol magazines with a capacity of more than ten rounds, within the meaning of cl 4(4)(f) of schedule 1 of the WP Act. Secondly, the respondent submitted that the applicant is not a fit and proper person who can be trusted with firearms without danger to public safety or the peace, within the meaning of ss 11(3) and 24(2)(a) of the Act.
After discussing the relevant authorities, the submissions said there was a risk to public safety if the applicant were granted a firearms licence because: 1. he was found to have breached s 7(1) of the WP Act by possessing the six oversized Glock magazines, posing a risk to public safety; 2. he intended to purchase, and would have done so but for the suspension of his licence, $25,000 worth of Glock parts, and 3. the quantity and nature of the gun parts he ordered was not reasonably justifiable giving that the applicant held a licence to keep and use only to Glock pistols.
The applicant's explanation for the large order was implausible, given the durability of the Glock pistols the applicant owned and the purposes for which he was granted a licence. The evidence suggested that he intended illegally to on-sell or manufacture Glock pistols, contrarily to s 50A of the Act or for some other purpose inconsistent with the spirit and intention of the Act. The Commissioner also relied on the fact that he was for five years the armourer for the Forbes Military Rifle Club, that he pleaded guilty on the prohibited magazines charge and that the order for Glock gun parts surpassed what would reasonably be required for the repair and maintenance of his two Glock 9 mm pistols. Apart from that, the applicant had demonstrated poor judgment and decision-making in ordering parts that were not necessary for his personal use, which could have made him a target for theft by criminal elements.
As regards the second ground, the respondent submitted that the applicant is not a fit and proper person to hold a firearms licence as his breach of s 7(1) of the WP Act demonstrated his lack of awareness concerning the prohibited capacity of pistol magazines and his inattention to the legal obligations of a licence holder. The responsibilities placed on licence holders, especially in category H, are of a serious nature and licensees must comprehend the guidelines and laws that govern them and act accordingly.
The magistrate who dealt with his WP Act charge acknowledged the applicant's good character for the purposes of sentencing. The question before the tribunal was of a different nature, however. It is whether or not the applicant is a fit and proper person, given the principles and objects of the Act, to continue to hold a licence. It appeared that the magistrate was not made aware of the applicant's order for $25,000 worth of Glock spare parts and could not, therefore, have taken that fact into account.
At the hearing Ms Thangasamy reiterated those points and submitted that the applicant had at the very least displayed poor judgment and knowledge of the act in purchasing prohibited magazines for prohibited pistols. He had testified that he had intended that the barrels for the prohibited pistols would be held by the Queensland dealer until the applicant had been able to obtain a permit, but he had not applied for one. Further, he also purchased magazines for prohibited guns, which he was not entitled to do, as s 50AA(2)(a) of the Act makes clear. Many of the parts he had ordered could not be used in his guns. The fact that the definition of "acquire" in s 4(1) appears to suggest a requirement of possession, indicates that there is an issue as to whether the applicant really did intend to leave the prohibited items with Hyperfire in Queensland.
His explanation for the quantity of parts he had ordered was unjustified as he only had two Glocks. He had said that if he had the necessary frames he would have enough parts to make a pistol, but the police witnesses had said he could make up to 20. He had claimed that he had been motivated by the high level of the Australian dollar at the time and his concerns about future restrictions, but in fact he had never replaced any parts. Nor had he begun metallic silhouette target shooting in any systematic way at the time.
At the highest his conduct could be seen as wilful disregard of the law, coupled with a lack of candour about his reasons and his precise level of technical skills. Mr Steven Wilson was the respondent's main source of evidence on these matters and he had said that the applicant would have been able to manufacture guns. It was not necessary to have access to a mill in order to manufacture frames. He had also is said that there was no reason to have large magazines for target shooting purposes. The applicant had said he regarded them as collectibles, but made no attempt to display them. He had also said that he could have a Glock customized using the imported parts more cheaply than he could buy a metallic silhouette target gun from the manufacturer, but the sheer quantity of parts he ordered suggested that money was no object. These factors led to the conclusion that he is not a fit and proper person.
There were thus four offences involved: his intention to on-sell or assemble guns illegally (s 50A), his intention to perform illegal modifications (s 63), supply without a permit (s 51BA) and the s 7 prohibited pistol issue because of the order and the oversized magazines for prohibited pistols.
Mr Steven Wilson had said it had been the police who made the decision to block the order, not customs. They had dropped the case once the order had been intercepted for resource and operational reasons. While there was no evidence of intent to use the parts or magazines for criminal purposes, the Act imposes strict requirements in relation to firearm possession and use: s 3(1). The applicant had argued that he should be allowed to hoard as many spares as he could because of his fears about future regulation, but there was no reasonable basis for those concerns. Further, he had not yet seriously begun metallic silhouette shooting. The hearing was then adjourned part heard to 20 May 2015. That hearing day, which was the third, was fully taken up with the applicant's concluding argument. Subsequently, on 10 June, the respondent lodged detailed written submissions in reply.

Applicant's submissions

On the second adjourned date the applicant presented detailed and exhaustive oral submissions. He conceded that they were in rather random order and moved about from one issue to another, but broadly they can be divided into two groups corresponding with the two sub-issues, one relating to the public interest ground arising from the prohibited weapons charges relating to the magazines, and the other dealing with the fit and proper person and public interest grounds arising from the applicant's acquisition of the prohibited magazines and his large order for pistol parts.
As regards the former, the applicant argued that while he was guilty under the WP Act, that did not automatically mean that he constituted a threat to public safety and in the Local Court proceedings it had never been suggested that he did. The prosecution had conceded that there was no evidence of a nefarious purpose in his acquisition of the oversized magazines, and that he had acquired them openly, on a whim, and in ignorance of their illegality (exhibit A2). He had an excellent firearms history, of which the court had been aware. The large order for parts was not brought to the magistrate's attention, but it was irrelevant to the case at hand. It was true that he had no permit for a .40 pistol, but the basis of the charges was the magazines' capacity. In any event, .40 magazines can be used in a 9 mm pistol and with 9 mm rounds with no difficulty.
It was unsurprising that he had possessed the six magazines in ignorance, as D/Sgts Watson and Maynard were also unaware that they were prohibited. Others at the Penrith gun show that also openly purchased similar magazines and the police who were in attendance made no attempt to stop the transactions. The WP Act had not originally listed magazines, and when it was amended to include them, there was no publicity to inform the public about the change.
While the Local Court did not expressly say that he should have a licence, it did say that making him subject to a bond would affect his ability to hold a firearms licence, and accordingly did not impose one. The court also did not forfeit all the magazines and indicated that he could apply to recover the others. But that would be possible only if he had a firearms licence. The prosecution had never said that he was unfit to hold one or was a threat to the public. The respondent had disputed his statement that he had acquired the magazines out of curiosity, as collectibles, as they were not displayed at his house. Such items must, however, be kept in a safe and not on display.
The bulk of the applicant's submissions concerned the second sub-issue, his very large order of Glock aftermarket pistol parts, manufactured by Lone Wolf in the United States, through the Hyperfire licensed firearms dealership in Queensland.
The respondent had argued that his act of ordering some parts before holding a permit for the type of handgun for which they were designed indicated a wrongful attitude to the legislation. His intention all along, however, had been to leave such parts with the dealer, Hyperfire, until he was granted a permit for pistols of that calibre. The respondent was making erroneous assumptions, and he had never shown any intent to infringe the Act. He had never contradicted himself in his explanation for his actions. He had made an informed, intelligent and lawful decision on business grounds. He had been concerned that if he delayed, the Australian dollar would fall in value against the United States dollar, as expert economic analysts had been predicting on television. He did not require a permit simply to order parts, as opposed to actually purchasing them. He had never been charged with any breach of the Act.
The respondent had submitted that under s 8 of the Act, a category H licence holder could use only a pistol that was registered to him or her, and not other pistols in that class. That was not so, and there was no such restriction. The licensee could use any registered pistol in that class.
The order was for a large quantity of parts, but he had said he would have 8 Glocks built by a dealer with the parts acquired. He had never said they were for his two 9 mm Glocks only, or that he intended to modify them. He had enquired about accessories such as laser sights, however. He had also wanted to have two Glock .22 pistols made from aftermarket conversion kits. He would thus have two Glocks for .22 paper target shooting, 84 metallic silhouette shooting in various calibres, together with the two 9 mm Glocks that he already had. The parts would service all of those for the present and in the future. Mr Steven Wilson had said that a shooter would need to own at least twelve pistols to warrant an order of the size of the order placed, but the applicant had in fact intended all along to have twelve, including ten new ones made from parts. Mr Wilson had admitted that it would not be possible to make even one pistol, let alone twenty, from the parts ordered, as no frames were included. The applicant said he had deliberately not ordered frames, partly because they were more expensive than those available in Australia, and partly because he did not want to order them from outside New South Wales as he wanted them to be on the state's records, partly because frame serial numbers are used for identification purposes. The frames in his possession had been legitimately ordered from the Horsley Park gun dealership and had been properly stored.
He had participated in over 1000 rifle metallic shooting competitions and also in pistol metallic falling plate matches. In May 2012 he had contacted the president of the Merriganowry Metallic Silhouette Pistol club, had visited it and subsequently joined it with every intention of following through with the sport as stated. While he had done little competitive shooting in 2011 and 2012, that was because he had only an air pistol and a worn .22. He had been completely "upfront" about his activities and had answered all questions without hesitation. He had himself informed Det. Durham about the parts order. The police had not previously known of it and asked no questions about it. He had telephoned S/Const Watson about the matter several times, which showed that he was not attempting to hide from the situation. The respondent had said he was evasive as a witness, but that was not correct. He was being very careful to answer correctly, as the questions were rather vague. Det. Durham had said there was no evidence of any intention to manufacture pistols unlawfully. That was probably the reason why the investigation was discontinued.
The registry knew that he had two Glock frames for which registration certificates had not been issued, although they were lawfully in his possession as they had been entered in the dealer's books. He had purchased one, and then two more, but had received documentation only for one. He thought they were perhaps testing him.
As regards the book of "exotic" Glock modifications that he had ordered, Mr Steven Wilson had said the registry did not possess a copy but it was probable that some of the modifications described in it were lawful. He had ordered the books, which were the only ones on the Lone Wolf site, purely out of interest. He would not have needed a book if he had wanted to make a pistol capable of full automatic fire. Mr Wilson had said he would buy the books himself if he could. The respondent had said that he held strong opinions about gun registration and a fear of future restrictions. He had not, however, criticized the Act and had not said that he needed to have a stock in case of further restrictions. It was purely a business attitude. He had handed in all his guns and spare parts at the buyback and was fully willing to comply. He had never kept any parts illegally. His record was unblemished and the respondent's concern was based only on suspicion.
Mr Steven Wilson had admitted in cross-examination that a number of the parts could be used for customizing a metallic silhouette pistol, such as the longer barrels, with threading for a compensator, and the classical spiral rifling that is better for target shooting. His intention had been to experiment with various options. It had been said that he would be able to make frames himself, but Mr Wilson had said there would be a good chance that such frames would fail. Few home-made pistols were safe to test. Making a suitable frame would require machining skills, mills and lathes, and he had not found any on the applicant's premises. There had only been a press drill. Although the applicant had to be good with machines, there was no evidence that he had any machining skills. Mr Wilson had said there was no evidence of what the applicant would do with the parts when he received them.
The Act draws a distinction between firearm parts and firearm components. Of the items ordered, $14,800 worth were components, for which no shooter's licence was required, as Mr Wilson had pointed out. Only about $14,000 worth would have had to remain with the dealer in Queensland. Mr Wilson had said it was hard to say whether it would be cheaper to have a gun manufactured by a dealer from parts, or buy one from the manufacturer with standard options, but it would be different if a long barrel and a compensator were used. In that case assembly could prove to be cheaper. He had admitted that police officers fire only about 100 rounds per annum, which makes issue weapons hard to compare with competition pistols. Competitive shooting causes much more wear.
He had submitted 14 recent character references, including two from retired police officers, one of whom was with the special weapons unit. He had never had any intention to breach the Act and had always endeavoured to comply with the new laws.

Consideration

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 that matter and the applicable law, that 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 tribunal has jurisdiction to exercise any functions conferred or imposed on it by the Civil and Administrative Tribunal Act 2013 No 2 (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 354, 357). As the use of the word "may" in s 11(7) makes clear, the Commissioner has a discretion whether or not to issue 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 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 that applies 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. There is, however, no burden or onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34].
The first sub-issue to be considered is whether the issuance of a licence to the applicant would be contrary to the public interest. The respondent contends that it would be, on the grounds that (1) the applicant was found guilty of a breach of s 7(1) the WP Act by possessing six Glock magazines that exceeded the maximum permitted capacity as defined by schedule 1, cl 4 (4)(f) of that Act and constituted a risk to public safety, and (2) that he intended to purchase an unjustifiably large number of gun parts, namely over $25,000 worth of Glock pistol parts.
Turning to the first ground, the Appeal Panel has described the "public interest" as "an inherently broad concept giving the [Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual": Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9 at [25]. The concept is invoked in order to "ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation": Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, 681. In this context the public's right to safety must outweigh an individual's right to possess and use a firearm or any financial impact that might flow from licence loss: Huckel v Commissioner of Police [2008] NSWADT 347, [41].

The prohibited magazines

The facts surrounding this aspect of the case are not disputed. On 18 September 2012, D/SConst Judd obtained a search warrant in respect of the applicant's Parkes premises, which was executed the next day. Sgt David Schell, who was leading the operation, stated that while police were in the process of searching a downstairs family room and storage room, he saw a combination safe in the corner and asked the applicant what it contained. The applicant said, "a few bits and pieces, magazines and a few papers", and the sergeant asked him to open the safe. It contained a number of magazines, four of which were loaded. Sgt Schell said they were going to seize those magazines and as he wanted to obtain advice from ballistics whether they were prohibited or not, particularly the two long ones.
Another officer, D/SConst Brett Watson, acknowledged that during the search the applicant had answered all questions put to him and had been open and honest with police. The applicant was charged with possession of a prohibited weapon without a permit under s 7(1) of the WP Act, which defines "prohibited weapon" to include "anything described in Schedule 1". Oversized magazines are listed as "Miscellaneous articles" in cl 4 of schedule 1.
At the Parkes Local Court hearing on 10 May 2013 the applicant pleaded guilty to that charge. Clisdell LCM noted the applicant's previous good character and his long and unblemished firearms history. "He could have legally had the items in his possession if he had obtained the appropriate paperwork. It appears it is a matter of degree as to whether or not you are allowed to have a magazine of a particular quantity", his Honour said. The items had been securely kept and there had been no complaint by the prosecution about anything the applicant had done in terms of those requirements (exhibit A2, p 4). The charge was dismissed under s 10(1)(a).
In his evidence before the tribunal, the applicant said he had purchased the magazines at the Penrith Gun Show on 19 May 2012. They were on open sale at an event where uniformed and plain-clothes police were in attendance and did not intervene. He was not aware that the magazines were prohibited and had purchased them as curios. As he had returned from Penrith to Parkes rather than to his Forbes address where his safe storage was located, he had stored them in the safe at Parkes.
The internal review reasons dated 3 July 2014 state that in light of the applicant's five years as a club armourer (which implied the authority of a firearms dealer licence), it was probable that he was well aware that those items were prohibited. "This could explain why they were not stored together with your pistols at your nominated safe storage location, which was likely to be inspected by police. Instead you chose to store them at another location, although I accept that they were placed in a safe to reduce the risk of theft".
In his evidence the applicant did not say that between 19 May and 19 September 2012 he had not travelled to his Forbes address where his father lived. He was licence holder and secretary of the Forbes Military Rifle Club, and while he was also a member of the Parkes Pistol club, the fact that his safe storage was located at Forbes meant that if he was planning to do any shooting at the club, he would have to go to Forbes to collect one or more pistols. He did say, however, that he did not do much shooting in 2011 - 2012.
Further, given his years as the Forbes club's armourer, his still continuing tenure as secretary of that club, his membership of the Parkes Pistol Club and his associate membership of the Merriganowry Metallic Silhouette Pistol Club, it seems improbable that he was unaware that the items were prohibited.
More importantly, the applicant said in his evidence in chief that he had "kept the big magazines in case [he] got a permit for them". The only possible interpretation of that statement is that he knew they were prohibited and had decided secretly to retain them until an uncertain future day, which might never come, when he would be able to keep them legally. That conclusion is reinforced by the fact that two of the prohibited magazines were not compatible with the pistols that the applicant had registered under his licence.
The respondent relies on the applicant's breach of s 7(1) of the WP Act as the basis for his submission that it is not in the public interest for the applicant to have a licence, for reasons of public safety. It was for reasons of public safety that the Legislature saw fit to prohibit large magazines, and while there is no evidence to suggest that the applicant intended to use them for any criminal purpose or in any other way that would constitute a threat to the public, his possession of them itself involved a risk that criminal elements could obtain them, especially as they were not kept in his safe storage at Forbes. Strict compliance is required and licence holders have no discretion in the matter.
As Montgomery JM has said, the responsibilities extended to licence holders, especially Category H licence holders, are of a serious nature and licence holders must comprehend the guidelines and laws that govern them and act in accordance with them: Wiltshire v Commissioner of Police, New South Wales Police Force [2005] NSWADT 75, [25]. While the applicant's offence lies at the lower end of the scale of seriousness and his firearms history is otherwise excellent, I am satisfied that in this instance he decided to take certain liberties as regards his statutory obligations.
Unless he can satisfy the Commissioner, or the tribunal, that he now fully appreciates his obligations under the legislation, it is not in the public interest for him to hold a licence. He has not so satisfied me. While it is possible that he may initially have purchased the magazines innocently, the evidence indicates that at some stage afterwards he became aware that they were prohibited but decided to retain them nevertheless. As matters stand it is not in the public interest for the applicant to be issued with a licence.

The parts order

It was not disputed that the applicant had ordered $25,000 worth of Glock pistol parts from the Hyperfire licensed dealership in Queensland. He had never received the parts because customs had returned them to the supplier in the United States. His placing of the order was lawful and the applicant himself had informed Det Durham about the order in the course of the execution of the search warrant by police on 19 September 2012, as they had not previously been aware of it.
The respondent pointed out in reply that the applicant had ordered parts for high-calibre pistols for which he held no permit. The applicant's explanation was that he had intended to leave those parts in the dealer's custody until he had obtained the necessary special permit. His enquiries had led him to believe that in view of his long and incident-free history as a pistol licensee, he should have no difficulty in obtaining a high-calibre permit. The respondent replied that he had given no evidence of any arrangements he might have made with Hyperfire for that purpose. The applicant had, however, given evidence in cross-examination about his intention in that regard and had not been asked whether he had actually entered into some agreement with the dealer for that purpose.
The respondent contended that the quantity and nature of the gun parts ordered by the applicant was not reasonably justifiable given that the applicant held a licence to keep and use only two Glock pistols, and only for the purposes of sport/target shooting and recreational hunting/vermin control. The respondent was concerned that, as a tradesman, and given his experience as club armourer of the Forbes Military Rifle Club for five years, the applicant might be able to manufacture pistols from the parts and that there was a potential for breaches of s 50A (unauthorized manufacture), s 63 (unauthorized conversions) and s 51B (supplying firearms without a permit). The respondent also submitted that even if the applicant had had a legitimate purpose for ordering such a large quantity of parts, he had demonstrated poor judgment and decision-making in ordering parts that were not necessary for his own personal use. Holding a large volume of parts could inadvertently make the applicant a target for theft by criminal elements. His conduct was inconsistent with the specific objective of the act of improving public safety by imposing strict controls on the possession and use of firearms.
The respondent conceded, however, that there was no evidence that the applicant intended to manufacture or supply pistols or had taken any steps towards doing so. There had been no basis for pressing charges and the investigation had, for whatever reason, been discontinued. The applicant maintained that it had been his intention all along to leave all the parts for which he did not hold the requisite permits in the custody of the dealer in Queensland until such permits were issued. The respondent disputed that, on the basis that the applicant had not yet applied for a prohibited pistol permit. He had, however, joined the metallic silhouette pistol club and had been told by its secretary that if he had held a pistol permit for many years without incident, he would have little difficulty in obtaining a high-calibre licence. He also had extensive experience in rifle metallic silhouette shooting.
The respondent correctly pointed out in reply that the applicant's claimed experience in rifle metallic silhouette competition was a new point raised for the first time in his submissions and submitted that as there had not been any opportunity for the respondent to test it, it should be given no weight.
That was an instance of a problem that frequently arises in tribunal cases where an applicant is not legally represented. As happened in this case, such applicants often fail to lodge a witness statement as directed and at the hearing present their evidence in an ad hoc fashion mixed with submissions. New factual matters are quite commonly raised in closing submissions. Whatever may be the approach taken in the courts, this tribunal is committed to assisting unrepresented parties, to the extent compatible with the obligation to do justice to both sides. Categorically to exclude allegations of fact that an applicant has not presented in the proper and regular fashion might constitute a failure to fulfil the tribunal's statutory mission. Rather than giving such claims of fact no weight at all, it is preferable to evaluate them in light of the other evidence and of known facts, of their general plausibility and also in light of whether the applicant has contradicted himself or herself in that respect or other respects, or has given other evidence that appears unreliable. The present case involves an applicant who, the police conceded, had been open and honest with them from the outset. It was he who had alerted them to his large parts order, of which they had previously had no knowledge. Given his lifetime commitment to the sport of shooting, including extensive experience with high-powered military rifles, his unsworn assertion that he had engaged in numerous rifle metallic target events is not implausible and can be given some weight.
While Mr Steven Wilson thought the order included enough parts to make twenty pistols, he agreed that no pistols at all could be manufactured without the appropriate frames, and no frames had been ordered. Concerns had been aroused by the fact that the applicant is a tradesman and operates a factory, but when the third search warrant was executed at the plant, only a press drill had been found and not the mills or lathes that would be necessary for making a usable frame. Frames could be improvised, but achieving the requisite tolerances was difficult and the resulting weapons were usually too unsafe to test. The applicant's evidence was that he had deliberately refrained from ordering frames so as not to arouse the suspicion that he intended to manufacture complete pistols, and indeed would not even order frames from interstate, so as to ensure that complete records would be kept in New South Wales. Further, while he was experienced at working on machinery used at the family company's quarry, he did not possess the fitting, turning or machining skills that would be needed for pistol manufacture.
The respondent also argued that the applicant's explanation was implausible because he had never had to replace any parts in his two existing Glocks. Mr Steven Wilson had said that the reliability of police issue Glocks was such that major items such as barrels seldom needed replacing. He conceded, however, that a police officer might fire only 100 rounds per year, whereas a competition shooter could use up 300 rounds in a weekend, and that the resulting wear rates would not be comparable. Some of the parts ordered could have been used for target pistol conversions, such as the extended barrels that were threaded for a compensator. He did not dispute that in at least some cases, having a gunsmith assemble a custom target pistol from aftermarket parts could prove to be a cheaper proposition than buying a modified pistol from the manufacturer.
To Mr Steven Wilson's testimony that the quantity of parts ordered could only be justified if the licence holder owned at least twelve pistols, the applicant replied that he had in fact intended to have ten pistols assembled by an authorized gunsmith, eight heavy-calibre weapons for different types of metallic target shooting and two .22 Glocks for practice assembled from conversion kits and other parts. Together with his two existing Glocks he would have had twelve pistols. He had not had to order a replacement parts for his two existing Glocks as he had not had them long enough. He would not be vulnerable to theft by criminal elements because his safe storage for his firearms at Forbes was a 2-tonne steel bank safe. The respondent contended in reply that there had been no opportunity to test the applicant's assertion that he intended to have a total of 12 Glocks made up for different types of metallic target shooting and practice purposes. The point could have been pursued, however, as the applicant did make that claim in cross-examination.
The applicant stressed that given the favourable exchange rate of the Australian dollar with the US dollar at the time and the particularly generous bulk discount he was being offered, he saw as a matter of practical business an opportunity to stock up with as many Glock parts as he expected to need for the rest of his shooting life, for he expected to keep shooting at least into his seventies, as his father had. Further, past experience when governments had banned semi-automatic long arms showed that the federal government could possibly restrict handgun and parts imports following some future incident. In that event prices could soar and there could be supply problems, as there had been with the parts needed for the SLRs used in wildlife culling after the government had destroyed all parts stocks. In the course of discussions with a range inspector, Barney Jenkins, in 2004 he had been informed that the federal government was a party to a United Nations treaty restricting private handgun ownership. That concern, the respondent submitted, had no reasonable basis, and the applicant did not pursue it in his closing submissions. It may not, however, be entirely unreasonable. Research has noted that the successive steps taken by governments in tightening firearm ownership restrictions have followed high-profile shooting incidents. The then premier of New South Wales, the Hon. Barrie Unsworth, following a national gun law summit on 22 December 1987, appeared to spell out that pattern. The legislative steps leading to the 1996 Acts commenced within days of the Port Arthur atrocity (see S Chapman, "Over our Dead Bodies: Port Arthur and the Australian Fight for Gun Control", Sydney University Press 2013, pp 101 - 103). Forestalling a possible future federal ban on the importation of pistols and parts by holding a stock of components would not, of course, assist the applicant if State legislation were to restrict handgun ownership still further.
The Local Court magistrate had found that the applicant is a man of good character, and while that was for the purposes of the s 7(1) proceedings and not for the issuance of a licence, the respondent did not dispute that there was no evidence of wrongful intent or criminal associations on the part of the applicant. As a single man of 48 with no interest in any sport other than shooting, it was not extraordinary that he would wish to spend half the compensation moneys he had received from the "buyback" on ensuring that he had the means to continue with his sport until he was too old to do so any longer. He does not consume alcoholic beverages, nor does he gamble, and he has never infringed the Firearms Act. He tendered fourteen supportive recent character references (exhibit A1), two of them from retired police officers, including Mr Brian Drabsch, a former sergeant in the special weapons squad.
In reply the respondent criticized the references as not disclosing any awareness of the spare parts order. Six of the references do, however, refer to his WP Act contravention and Mr Drabsch's letter in particular shows a full awareness of the applicant's firearms history. Given that the parts order was in itself quite lawful, the attestations to his good character in the tendered letters, all of them recent, can be given some weight.

Conclusion

While the circumstances of the large parts order from Hyperfire were certainly such as to give rise to reasonable misgivings and suspicions, the evidence when taken together amounts to an explanation for his unusual conduct that is consistent with his not being a danger to public safety or otherwise reflecting on his fitness and propriety to hold a licence. I find that the evidence, including the evidence relating to the breach of s 7(1), does not show that the issuance of a licence to him would compromise public safety. He is not a person who can be characterized as not being a fit and proper person to hold a firearms licence.
At the same time, for the reasons given above in relation to the breach of s 7(1) of the WP Act, I do not think that it is in the public interest that he be granted a licence at the present juncture. If he is to reapply for a licence in the future, he will need to satisfy the Commissioner, or the tribunal, that he intends to comply strictly with all the applicable provisions of the relevant legislation, and any licence conditions, without exception.
The decision under review is affirmed. 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: 22 June 2015

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