Fit and Proper Person - Are you one? The Loose Cannon
One of the concepts that shooters have a lot of difficulty getting their head around is being a ‘fit and proper person’.
Like ‘public interest’, ‘Fit and proper person’ is not defined in the Firearms or Weapon’s Act, or Regulations in any Australian state or territory. However, the law in respect to this is now in well settled with a great wealth of case law covering its meaning that can be sourced from around Australia in both Federal and State jurisdictions.
The word ‘fit’ does not add anything to the word ‘proper’, and is an example of what legal scholars refer to as ‘doubling’, a rather useless but quite harmless drafting practice.
The most important or ‘leading case’ in respect to whether someone is, or is not a ‘fit and proper person’ dealt with the fitness of Alan Bond, the flamboyant 1980’s mogul, to hold a Broadcasting licence.
The matter wound up before the High Court (Australian Broadcasting Tribunal and Bond (1990) HCA 33) Mason CJ found that where fit and proper person is not defined in an Act, the Court must look at all of the qualities and characteristics of the Applicant that are relevant to the public interest in respect to the type of licence that the Applicant is seeking.
When this ruling is applied to fit and proper person in the context of a Firearms licence, one must first turn to the underlying principles of the Firearms & Weapon’ s Act’s found in the various states and Territories in Australia, all are fairly similar to one another, and focus on public safety.
To use the underlying principle as stated in the NSW Firearms Act 1996 as an example:
S 1 ‘to give effect to the principle that the possession, carriage, use, acquisition and disposal of firearms are conditional on the need to ensure public safety and peace…”
The legislative regime therefore makes it clear that Firearms ownership is a privilege & not a right, and that individual interest is subordinate to public safety and considering public safety under the Act. The Tribunal must be satisfied that there is virtually no riskto the community. Ward v Commissioner of NSW Police (2000) NSWADT 28 (NSW)
By not defining public safety, Parliament its meaning remains very broad. It leaves decision makers in the position where they must be satisfied that the Applicant is a fit and proper person to possess, carry and use inherently dangerous weapon without any threat to public safety and peace. In this context, it is appropriate to consider the Applicant’s behaviour towards other members of the public and whether it is rational and mature.
While the legislation demands strict compliance, as Parliament chose to make the power to revoke a licence discretionary, rather than mandatory, it is clear that not all contraventions of the Act or breaches of it were intended by Parliament to warrant the exercise of the power to revoke.
In NSW ADT, the Tribunal has found that a trivial or excusable contravention may not warrant the exercise of the discretion against the licensee whilst a fundamental one may. Cusamo v Commissioner of Police, NSW Police Service (2001) NSWADT 50 at para 25). In assessing this, non-compliance with a set of rules or practice will not automatically mean that someone is not a fit and proper person to hold a licence. A must be judged taking into account all relevant circumstances.
In Frugtniet and Anor (GD) (2004) NSWADTAP 12 at 209 the Appeal panel summarised the principles involved in assessing fitness and propriety derived from the decision in Young Taek v Tomazin (1994) ASC 56-283 at 58.
- The question must be determined with reference to the particular purposes of law involved…
- Account must be taken of the minimum standards of the activity being regulated
- Matters such as ‘character’, ‘suitability’, ‘integrity’ and ‘trustworthiness’ indeed any aspects of fitness and propriety that is relevant to the public interest must be considered.
- That while an isolated act may suffice to show lack of fitness or propriety this will not necessarily be the case, and ‘deliberate prolonged conduct or a course of conduct’ stands on a different footing and
- The evaluation of fitness involves a wide discretion.
In forming a view about fitness, the Tribunal can look at all relevant events over a lifetime, with past events being considered in light of the lapse of time, as supervening events alter one’s perception of an individual.
How this works in practice can be seen from the following examples:
- In Ebert v Victorian Police Licensing & Regulation Division (Review & Regulation) 2014 VCAT 1578. Mr Ebert had a fairly long history of offending, although his offences were not against the person, he had also re-partnered, and now appeared to be in a stable relationship. The Tribunal formed the view his improved family situation, voluntary work at his children’s school and refereeing sport, and cessation of alcohol abuse suggested an improvement in his character.
- In Green v Commissioner of Police. Green was a former Police Officer who had once made inappropriate advances to a female officer in his section. She sought an AVO but it had never properly taken effect. The Tribunal were satisfied he was now a fit and proper person as there had been no incidents over the intervening twenty year’s. The absence of reoffending had the effect of redeeming his character.
- In Mewborn v Commissioner of Police (2009) NSW ADT 24 the Tribunal set aside a refusal by the Commissioner’s delegate to grant a licence. Mewborn had been convicted of Assault Occasioning Actual Bodily harm, but had removed himself from the stressful relationship and surroundings, and there had been no subsequent offences committed during the exclusion period that follows a conviction for a serious assault.
- And finally, in Webb v Commissioner of Police (2004) NSW ADT 110. Mr Webb had gone shooting with a friend whom he had known was not licensed to possess a firearm. When caught, he gave false information to the Police. He was otherwise of good character, and the Tribunal accepted this as anomalous conduct.
Consequently, if you have a grubby stain in your past, or have broken the rules in a minor way, do not assume that you are no longer a fit and proper person. Even within the strict framework of firearms regulation, the system accepts, when faced with appropriate evidence, that a person has turned his life around, and I must say, helping people who have overcome a bad stain in their past is work that I find particularly satisfying and rewarding emotionally.
National Firearms Lawyer
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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:
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