Big Issues at the NSW Firearms Registry - The Loose Cannon

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NSW AUDIT REPORT ON NSW FIREARMS REGISTRY

The NSW Audit Office has issued a report on the NSW Firearms Registry.  I had heard that a review was at least 12-18 months away, however I suspect that it was fast tracked because of the Edwards matter, which was the case of the tragic murder / suicide by a person who held a pistol by Commissioners Permit.

Its release now is manna from heaven for the Shooters Fishers and Farmers Party and Liberal Democrats, who I assume are going to make great use of it on the campaign trail.

I found the report very interesting.  I have post graduate qualifications in Public Sector Management from Griffith University in Queensland, and I had long been of the view that all was not well in Murwillumbah, and it confirmed many of my concerns. 

I come from a background with a Commonwealth Regulator, and if a report such as this was handed down in a Commonwealth context there would be blood in the board room, and on the Ministers carpet, and senior management changes would result.  Hell, the management suite would look as though a pack of the great white sharks that patrol the far north coast had some-how run the gauntlet of the drones, nets and patrols and had paid a visit.

 It shall be interesting to see what the ‘wash up’ of this report is in that context.

Leaving that aside, It is in my experience often a bad thing to remove an agency such a long way from the people who it regulates, or partners regulating with, as it can become somewhat insular, and can fail in its statutory duty by falling into what one could described as a cultural trance fed by complacency and isolation in which management talk themselves into the view that they are doing a good job when they are not.

This is particularly the case where the Registry claim to have a co-regulatory model with the Police Force.  Something that the Auditor could find little evidence of.

For example, I had a conversation with a Licensing Sergeant last Monday outside a Court.  She was young for a Police Sergeant and eager to do the right thing, not only by the community, but also, I genuinely believe by shooters.  Like many licensing Sergeants she was used to regulating publicans and other good people, and she would prefer to talk to people and obtain compliance that way rather than having to wield the big stick. 

She had obviously ‘googled me’ in light of the matter in Court, and knew of my writing, and she asked if there was a way I could get a message to the Registry about the need for them to advise local Police about new licensees or people moving into their area so that they could talk to them about security and possibly do an audit.  No rule changes were needed to support it.  She and other licensing sergeants she said had tried, but requests had fallen on deaf ears.

Police in this sort of process can impart a lot of information that can avoid problems down the track.  In my experience most, people exit the Firearms Safety Awareness Course with the knowledge that they need to bolt down a safe it weighs less than 150kg and about other aspects of firearms safety. 

Much of the other detail is lost, and a lot of the material on the Firearms Registry website about storage is not very good.  For example, why do they persist in showing a picture of a storage cabinet on the level one storage flyer that would fail an audit?

Improving shooter knowledge is one of the reasons why I write on firearms law.  Yes, on one level it is marketing, but it genuinely pains me to see a fellow shooter charged with an offence as a result of ignorance.

 

DATA ACCURACY PROBLEMS BUT NO COMMENT ON SERIAL NUMBER RECORD ERRORS

There are also clear problems with their information regarding accuracy of data regarding addresses.

Interestingly the audit report did not look at the accuracy of serial numbers recorded and focussed on errors in recorded addresses. I anticipate a significant error factor exists in recorded registration numbers, and I would assume that there is, as was the case in WA an error factor of up to 20% in serial numbers recorded.

I was left wondering if this omission was deliberate, since its inclusion would have eroded the validity of the licensing regime.

 

DECEASED ESTATES

The report was also critical of loss of firearms via deceased estates. 

I periodically receive calls from colleagues who work in the estate field for advice on firearms.  Estate lawyers are familiar with succession legislation, but they have no knowledge of firearms law.

It would be a simple matter I believe for the Registry to make information available to the general legal profession that would minimise this problem, such as an article or advertisement in the Law Society Journal or activities in the continuing legal education environment in this regard and they are remiss in not having done so.

 

JUSTICE DENIED AND JUSTICE DELAYED

The audit report commented that about 27% of revocation decisions were ultimately overturned on internal review, largely as a result of additional information being provided. 

The report failed to comment upon the breach of natural justice that occurs in processing in NSW, that sees decisions being made without an individual being asked to comment upon a matter as occurs in Victoria, which currently has one of the best regulatory models in Australia.

Nor is there any monitoring of trends in NCAT decisions, with those trends being fed into decision making, leaving me to assume, that my conclusion that the Registry was often off on a frolic of its own was quite correct. 

Thus, there is no attempt at the Registry to get decisions right in the first place.  Something that as a regulatory lawyer I consider shambolic. But more importantly lacking basic human consideration for clients that the agency is failing.

In commenting on the error rate, the Audit report was silent on the question of considerable delays in processing reviews, which is now upwards of five months, and clearly unacceptable.

 

FAILURE TO COMMENT ON STATE RECORDS ACT 1998 BREACHES

Nor did the audit report address the loss of documents sent to it, which is a considerable concern given the obligations of the agency under the State Records Act 1998.

 

RECOMMENDATION OF RE-COMMENCEMENT OF RISK BASED ASSESSMENTS

The Audit report recommends recommencement of risk-based safety inspections, without there being any evidentiary basis for it presented in the report, such as a spike in crime after this practice ceased.

This reiterates the question largely on many shooters’ minds about the what the NFA achieves as far as public safety is concerned.

 

LICENSING PROCEDURE

Another area missed by the audit is licensing procedure.

The Registry refuse to provide forms to many people who wish to apply for a Firearms Licence and this procedure has continued under the electronic lodgement system. 

In many instances the refusal is somewhat whimsical, and is at odds with the requirements in the legislation.

For example, I had a call today from a 28-year-old farm manager who has a need of a firearm for animal husbandry reasons, who was involved in an ‘affray’ when he was 18 that did not result in a conviction.  He is not therefore caught by the 10-year bar in obtaining a licence.

Unfortunately, the Registry electronic licensing system is not allowing him to lodge an application, suggesting that the code base developed for the licensing software was not adequately scrutinised to ensure that it complied with the legislation.

 

REGULATORY PROGRAM

The audit report does not comment upon the Firearms Registries regulatory programme.  I would have expected a policy review cycle that monitors Tribunal and Court decisions, reports to a policy unit in respect to this that performs an analysis of impact that feeds into a Regulatory review programme which involves adequate opportunity for public comment.

Certainly, the latter was missing when the Regulations were last revised, and considerably less opportunity for comment was provided than is provided for in the Government’s own best practice guidelines.  There was also a failure to publish submissions to the review and even sensible suggested change were not accommodated.

The Registry speaks of Co-Regulation, and part of this program may occur at the hand of the Department of Justice or other units within Police, however there is no comment in respect to this.

 

NEED FOR CULTURAL CHANGE

My view is that there needs to be a cultural change at the Registry, with the Registry acknowledging that shooters are ‘good people’ who are by and large sensible and need to be encouraged to do the right thing, rather than the current excessively punitive model, which promotes a ‘them and us’ culture.

There also needs to be an on audit conducted on every stage of registry processing to ensure that the Registry is complying with the law and NSW Government best practice.

 

FUNDAMENTAL IRONY OF AUDIT REPORT

A government audit has as its function the assurance of good governance, however, the Registry seeks to apply, in a fashion, legislation that is based upon a false premise that upon objective examination fails to achieve its stated aims. That is to say, neither the legislation nor the Registry is efficient or effective.

For example, does Registration, as opposed to possession of a firearms licence, by any reasonable analysis have any impact on public safety in respect to Cat A, B & C licences? (Leaving aside for a moment the question of its impact in respect to Cat D & H?) or does it waste resources by distracting Police from their primary role of public safety and crime control.

When I worked for the Commonwealth, I sat on more committees than any reasonable person should ever have to in their life time.  For this reason, I have declined invitations to sit on consultancy groups conducted by the NSW Registry, however, I extend an invitation to the Registry to contact me directly should he wish to have my input in respect to ways that their procedures can be made more compliant, fairer and also perhaps less toxic to those it regulates.

 

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
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