The Loose Cannon's Meeting with Deputy Premier John Barilaro
I am meeting with Deputy Premier John Barilaro on 11 May 2018, and many of you have contacted me to ask what I intend to discuss with him.
This is a summary.
My suggested changes do not impact the NFA. I have deliberately not sought to involve NFA matters in discussions. The reasons are that NSW laws can be changed relatively easily, whereas those subject to interstate agreement shall take considerable time and would not be capable of implementation before the next election.
None of these changes impact adversely upon public safety. However, all significantly effect the fairness with which shooters are treated in NSW.
The changes also reflect my view of law- in that laws should seek to facilitate action rather than being overly restrictive.
OUR GUN LAWS COMPRISE OF:
NATIONAL FIREARMS AGREEMENT WHICH HAS THE FOLLOWING ELEMENTS
- Firearms ownership privilege and not a right
- Have to be Fit and Proper Person
- Public Interest test
- 5-year prohibition as a result of AVO or offence involving firearms, drugs, violence
- Genuine Reason Special need
- Mandatory safe storage
- Categories of firearms ABCDH
- Semi autos not generally available to public
- Crimtrac database- put firearms ownership on database with criminals
CARR GOVERNMENT LEGISLATION 1996
Bob Carr wanted his laws ‘’ twice as tough as everyone else’s’- and this led to a considerable degree of unfairness being built into the NSW Regulatory model. This and the approach of the Registry, is reflected in the high level of Tribunal appeals in NSW.
REGULATION- THE REGISTRY
Organised crime works in a deregulated market place. Few organised criminals ever serve time for firearms offences, as time for firearms offences is served concurrently with that of other offences. Consequently, they do not care about gun laws.
Sporting shooters are however heavily regulated. Most shooters are ‘blue collar’, many have literacy issues- and overly complex Regulations create compliance issues that can cost an individual their licence and lead to a criminal record over a ‘technical breach’ that does little to enhance public safety.
-Regulations need to be proportionate, efficient and effective.
They also need to be ‘logical’.
Natural Justice procedural fairness is not applied by NSW Registry when they make decision. Police say so without ‘putting’ the allegation to the individual as required by law.
There are suggestions that the Registry seem to feel that because there is ‘no right to bear arms’ it means shooters have no rights.
The Registry has developed their own ‘LORE’ rather than following the ‘LAW’, and its approach is disproportionate and cruel. There for example being a culture of denying a firearms licence to someone who has had firearms stolen in the past.
In this context, Police argue that shooters should maintain a low profile, which is impractical in a country town. Yet their own procedures at the Queanbeyan conference were inconsistent with the need to protect identities, as a mobile phone screen shot of the attendance record would have provided a would-be thief with a virtual ‘shopping list’.
Peer reviewed research indicates that the laws have had little or no effect- even NSW Statistician has commented in the media on this- yet bureaucrats continue to proceed with over regulation.
Registrar Lyons remarked at a conference in Queanbeyan that he believed the Registry should be looking at why not approve rather than just saying no. His view, as expressed accords with my own, yet in my experience, the opposite is what is happening under his watch.
My view of The Government needs to commission the Auditor -General report into the Registry immediately.
SUGGESTED CHANGES TO ACT & REGS
AVO’s & CONVICTIONS
Sometimes people are unfairly ‘caught’ by the ten-year prohibition period, especially by AVO’s. There needs to be ameliorating provisions that would, as in other states:
- Enable a Court dealing with an AVO or DVO to find that the order shall not effect any Firearms Licence held.
- Incorporate a provision like s189 of Victorian Act that person to be declared by a Court not to be prohibited person.
- Reduce period of prohibition from 10 years to 5yrs in accordance with the NFA.
Police have claimed an operational need for this. It is hard to see why, given that all the reduction in the period would do is permit an application to be made, it would not automatically grant the application.
While firearms can be surrendered at any time, there needs to be a means for them to be back captured other than during amnesties.
One reason for this is that if people believe in the value of registration (I do not), it is desirable for the register to be as complete as possible, and it is also desirable to ensure that all firearms are kept secure.
Regulators need to note that often firearms have considerable financial, historical and emotional value.
The law does not impose safe storage requirements on firearms that are illegally held by an unlicensed person. It should. s41 needs to be amended so as to provide an obligation on an un-licenced person to this effect.
S12- GENUINE REASON
Sets out ‘Genuine reason’ for possessing a firearm
Sport / target
Rec Hunting / Vermin control
Vertebrate pest Control
For rifle / shotgun AB licences, having met one licence category, why not licence for any other? The test is too prescriptive.
I.e. several years ago, a farmer friend needed to euthanize stock, I could not assist as my licence was for rec hunting/ vermin control not primary production.
One should also be permitted to use a firearm for self-defence if one finds oneself in extremis within the precinct of ones home.
S13- MINORS PERMITS
Minors permits need to be available for other than target shooting.
At present they are not, because the Greens and socialists simply did not want to ‘encourage’ the sport of shooting.
Unfortunately, farmers violate this every day with their children, as many parents would consider, correctly, that denying children access to a firearm would make it makes it ‘forbidden fruit,’ and would put access to a gun safe high on a son’s agenda.
This provision was never anything more than green tokenism and is almost impossible to regulate. It needs to be changed.
MENTAL HEALTH AND SHOOTERS
We don’t want to see murder suicide happen, but at present, many shooters are reluctant to admit to having mental health problems because they feel they shall be unfairly treated by the Registry.
DPP Hennessy Ward v Cmssnr of Police (2000) NSWADT found that a tribunal must be satisfied there is virtually no risk to the public by a licence being held. It was a fit and proper person case but this has been applied to Public interest as well see Hoffman (2003).
Police focus on the Ward decision and ignore other cases (including the Appellate decision of Martin) that stress the need to take into account circumstances, including attitude, character and prior conduct with an overriding focus on public safety- Martin v Commissioner of Police (2017) NSWCATAD 97 thus in Webb v Commissioner (2004) NSWADT 1110 Montgomery found ‘when considering the question of public safety it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration’ risk to the public includes risk to the applicant himself.
The Standard Registry letter to mental health practitioner damns a shooter because it asks if there is any possibility of a relapse- this is a question that no reasonable mental health practitioner can answer in a patient’s favour. A fairer question, that is more consistent with the need to gauge risk, would be whether any predictions regarding public safety can be made from the patient’s past behaviour in the event of a relapse.
The Regulator needs to be forced to focus on the realistic rather than the fanciful.
COMPLIANCE CHECKS ON SHOOTERS
It is important to ensure safes are properly installed and also periodically to audit firearms to cleanse the database.
Does a Police Officer need to do this work?
Generally, Police resent doing it, and are not adequately trained.
Why not engage people who shoot and who meet stringent character tests, swear them in as ‘special constables’, and have them do the inspections?
If they make an appointment to inspect- they often need to break the appointment for ‘operational reasons’. Inconveniencing self employed business people who are awaiting for inspection.
Others Police roll up and demand access. Given inspection takes some time, requiring emptying safe to check mounting, and then checking every firearm, this can be very inconvenient.
NSW Regs changed last year enabling Police to demand access- if you don’t let them- in the opinion of the Police unreasonably they can charge you- not fair and oppressive.
Essentially a search without warrant and guaranteed to breed resentment.
FIREARM DESTRUCTION FOLLOWING CONVICTION
Shooters face automatic forfeiture provisions under Section 80(2) of the Act for Part 4 offences. This situation became worse last year following the decision in NSW Commissioner of Police v Eykamp & Anor
Thus, a person who commits an offence, gets punished appropriately by a Court, they then face the forfeiture of a firearm, and since the decision of Eykamp, and telescopic sight added to it.
Thus, two men co-accused and charged with the same offence could receive the same fine, of say $750, and subject to what was carried, one may forfeit a $500 rifle, whereas a co-accused hunting with a valuable rifle and telescopic sight, could forfeit a $4,500 rifle, and a $2,000 telescopic sight that is sitting in mounts worth $500.
That is to say there is no proportionality in this additional penalty, nor is the amount of the full penalty considered by the Court.
The firearm may also be a family heirloom causing additional anger.
See my previous posts
CROSSBOWS AND CATAPULTS
Crossbows are legal in most countries around the world and are available in most Aust states. They were prohibited because one person on the Central Coast did the wrong thing with one. Nobody has taken them seriously as a weapon of war since Agincourt and Crecy (British 5 to 1 victories over the French) but they have legitimate pest control uses, as do catapults.
If someone has a Firearms Licence, why not let them have these devices?
I submit they should not require registration but should be stored in a cabinet or safe.
We would want to use BOTH for hunting.
See previous post.
S40 CAT A & B STORAGE MAJOR LOOMING CONCERN
Police have been harping on thefts, and they are working toward a demand for back to base alarm systems.
These do not work in the country and shall have a huge financial impost upon the shooting community.
Police could achieve 50% reduction by simply requiring safes be under farm house roof instead of in outbuilding where oxyacetylene gear and angle grinder stored.
I submit they don’t want to do this because they have a clear policy agenda, and they were aware of it because it was in my submissions in respect to the Regulations last year.
National Firearms Lawyer
P: (02) 6299 9690
M: 0427 280 962
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.
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