Appealing A Firearms Act Mental Health Revocation - The Loose Cannon - By Simon Munslow

Comments Comments
Simon Munslow answers your questions on firearms law.
Simon Munslow answers your questions on firearms law.

 

PART 1 

The NSW Firearms Registry is currently targeting shooters with mental health problems or ‘unsoundness of mind’ as it is described in s11(3) of the Firearms Act 1996

Unfortunately, what is ‘unsoundness of mind’ within the meaning of the Act lacks clarity, and there is nothing like the definition of ‘mental illness’ found in s4 of the Mental Health Act 2007 which would provide much greater clarity of whether someone is fit to have a firearm or not.

Indeed, if there was, I doubt if most shooters would protest, as it would be hard to consider someone meeting those criteria, fit.

They provide:

 "mental illness" means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms-- 

(a) delusions, 

(b) hallucinations, 

(c) serious disorder of thought form, 

(d) a severe disturbance of mood, 

(e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)-(d). 

Therefore, what we are dealing with here, is where the line is drawn about whether someone should or should not be considered to possess a firearm, with some of the extreme decisions being reached by the Registry being somewhat ‘crazy’ in themselves…

I have set out the legal test in Part 2 of this paper.  Part of the problem is that the test is vague, and indeed given human beings, it has to be. 

 Unfortunately, as things stand, the test is being interpreted by a middle to low level Clerks without adequate training, who often takes it upon themselves to make a determination contrary to the recommendation of the Doctor, despite having not interviewed the Applicant themselves, and without speaking to the Psychologist or Psychiatrist in order to discuss and clarify their concerns.

In respect to this, I have some sympathies for the Review Officer, for if they are on top of their position, they are not being paid enough money for the work they do, and if they face a further problem.

Having realised that there is no real mental health problem, but someone has made a false report, did the report arise from ill feeling and what are the possible consequences of that when considered against a practically no risk standard?

Here one needs to consider, was the risk real and appreciable risk and is the review officer in considering the matter speculating? 

To overcome this type of situation a better model is needed, that would involve a model and culture of getting decisions right first time.  This would involve applicant’s being interviewed by local licensing Police and concerns raised face to face. 

 

IF YOU RECEIVE A SUSPENSION OR REVOCATION ON MENTAL HEALTH GROUNDS, WHAT DO YOU DO?

If you receive a suspension on mental health grounds, or a revocation letter mentioning mental health, I suggest you read the attached material on the legal test (‘practically no risk’) and ask yourself and if you have one, your treating psych, the Doctor if there is in their view ‘practically no risk’ and see if they will support you.

Then follow the steps outlined below.

One additional fact to consider is that, simply because the Registry has asked you for a psych report or have sought to reject you on psych grounds does not mean that this is the only factor that they shall consider, because the NSW Firearms Registry does not provide Natural Justice and flag their concerns in advance.

Instead, they have adopted a practice not unlike that regulating insurance contracts of Uberrima fides is a Latin phrase meaning "utmost good faith". This requires that you disclose all material facts within your knowledge to them and if you do not, they conclude that you are not a fit and proper person.

Consequently, in order to determine whether you need a lawyer at this point you need to ask yourself the following: 

  •          Do you have any convictions (Including Juvenile and spent convictions)?
  •          Have you been subject to an AVO / DVO / Protection order as either a perpetrator or Person in Need of Protection (PINOP)?
  •          Have Police ever been to your home regarding domestic incidents, have you ever been interviewed by Police regarding an event in which you have been a suspect or a victim in a matter involving violence?
  •          Have you ever been cautioned or given a move on direction? - cautioned over anything- but specifically including drugs, alcohol or anti-social behaviour.
  •          Have you been charged with any matters?
  •          Have you ever been the victim of crime, for example a crime of violence or theft?
  •          Have you a prior mental health background that has led to you being ‘scheduled’ involuntarily detained, or remained as a voluntary patient at a mental hospital? And have you a past history of suicide threat or attempt, irrespective of whether this has involved a firearm. 
  •          is there any other material that may appear on the COPS database against you?
  •          What is your driving record like- how long have you held a licence and what offences have you had? Have you ever received a warning letter or letters from the Department of Motor Transport?
  •          Have you had any problems in the past with the Registry?

 

If you answer any of these with a ‘Yes’ I would suggest you may want to consider instructing a lawyer now.

Please note in respect to the above list that you do not need to be convicted of a matter for facts to be relevant. Just because you may not have been convicted at a ‘beyond reasonable doubt’ standard does not mean that there are not alleged facts that may not be of concern to a decision maker at a Reasonable Satisfaction / Balance of Probabilities standard.

 

GIPA = Freedom of information in NSW

 Irrespective of whether you are seeking legal representation at this stage or not, if you are going to seek a psych report, I suggest you consider lodging a GIPA request or two. 

Gipa is what the NSW Government now call Freedom of Information under the Government Information (Public Access) Act 2009.

Because of time delays in the system lodge these requests ASAP. 

If Police and or Ambulance were called, ‘Google’ gipa Ambulance NSW’ (you want to seek ‘all records documents, logs, incident reports relating to an Ambulance attendance relating to you at (indicate address and on indicate dates)’.

If you have been at a hospital regarding mental health issues lodge a GIPA request at each hospital. You will want to request ‘All clinical records and records and holdings related to your admission to the hospital on whatever date’.

If you have a problem, ring the hospital or agency and ask to speak to the information officer.

Full disclosure of this material shall assist your psychologist or psychiatrist in assessing you.

 

Police records

There is generally little point lodging a GIPA request regarding Police holdings, as their COPS database entries tend to be heavily redacted unless you are prepared to take them to the Tribunal to try and force access.

In any event, Ambulance and hospital records are generally the more relevant because of the specific mental health training received by ambulance and hospital staff.

 

Obtaining a psych report.

If you already have a treating psychologist or psychiatrist or have seen one in the past you are going to need to seek a report from them.

The Registry probably know or shall find out soon enough via Commonwealth Department of Health databases who you have seen, and if a report is not supplied by them, they shall draw an adverse inference from this.

Some mental health practitioners are not prepared to do reports in respect to firearms licences.  If the psych or Doctor is one of these, politely enquire why? Is it because they do not consider you well enough, or if it is a result of a conscientious objection?

If the latter, respect that, and ask for a short letter to the Registry advising that you declined to prepare a report on conscientious objection grounds.  Indicate you respect their view and ask if they are prepared to make their clinical notes available to a psychologist or psychiatrist preparing such a report or to talk to that specialist.

If you need to access a private psychiatrist or psychologist, you shall need to make your own enquiries because I do not release the names of those I use to non-clients.

 

Deadlines

Ask the psych how long preparation of a report shall take and write to the Registry appealing the decision.  Advise them that further material is being sought via GIPA and a report from a Psych and requesting time for this to be supplied.

Watch this date.  If a further extension is required seek it.

If you miss the deadline or do not seek an extension your application shall be revoked, there is no opportunity at internal review level to seek to bring an application out of time.

 

Simon Munslow

National Firearms Lawyer
P: (02) 6299 9690
M: 0427 280 962
E: solicitor@bigpond.com
W: firearmslawyer.com.au

Simon Munslow is a lawyer who has a lifelong interest in shooting, having acquired his first firearm at the age of nine, and has had an active interest in firearms law since writing a thesis on the topic over thirty years ago at university.
Simon Munslow practices extensively in Firearms Law matters throughout Australia.

He is a regular contributor to the Australian Sporting Shooter magazine’s website on Firearms law matters, has published articles on firearms reviews and firearms law, and occasionally is asked to comment in the broader media on firearms matters.

This article is written for general information only and does not constitute advice. 
He can assist you with:

Criminal law & Administrative law and in particular that related to Firearms

• All firearms, weapons and game charges
• Avoiding & setting aside Apprehended Violence Orders
• Possession of unregistered firearms
• Unsafe transportation & storage matters
• Applications for prohibited weapons
• License Appeals
• Freedom of Information / Government Public Access matters
• Importation & Customs problems
• Advice & opinions related to Firearms law matters

comments powered by Disqus