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Insights

The underlying principles of the Firearms Act are made clear at the very start of the Act. Firstly, owning or using a firearm is a privilege, not a right, and is conditional on the overriding need to protect the public. Secondly, the Act seeks to improve public safety by imposing strict controls and promoting safe and responsible gun storage and use.

It almost goes without saying, these underlying principles are common-sense and appropriate.

The Act sets out strict requirements for obtaining a licence, for safe storage and use of firearms. It also imposes strict penalties for failure to comply with those requirements. Given the extreme importance of protecting the community, and the obvious dangers if requirements are not satisfied, each and every breach of the Firearms Act is vigorously prosecuted by NSW Police. This strict approach to gun safety should be encouraged.

Given the numerous, often technical, requirements of the Firearms Act, many gun owners will find themselves breaching the legislation almost inadvertently. We have seen matters where clients have failed to renew their licence on time. Instead, having realised their error, they have applied for a renewal shortly after the old licence expired. We have seen breaches of safe storage requirements, such as failure to use the correct type of safe (secure but not for the correct category) or failure to properly secure a safe to the floor (bolted but not correctly fastened).

In accordance with the Act’s underlying principles, these matters are prosecuted by NSW Police, and rightly so. Public safety is of primary concern. There should be no tolerance for breaches.

Though we agree this strict policy (bringing prosecutions for any beach) is necessary for public safety, it is important that each matter is dealt with on its merits. This is the reason for an independent and impartial review system, the NSW judicial courts.

Our Magistrates are appointed because of their experience, knowledge of the law and ability to recognise the specific circumstances of an individual case.

In these matters, we see Magistrates weighing up the need to protect the public, against the strong mitigating circumstances in many of these minor, or “technical” breaches of the Act. While the offending gun owner needs to be punished, Magistrates acknowledge the harsh penalties that flow from a gun-related conviction, including mandatory suspension of a licence.

When dealing with these technical breaches, Magistrates will often decide to exercise discretion, making a Conditional Release Order (CRO) without recording a conviction. Under a CRO, the firearms owner enters into a bond for a specified period, during which they cannot possess a firearm.

Although resulting in a “non-conviction”, a bond still appropriately deals with the underlying principles of the Firearms Act. It satisfies the “purposes of sentencing” a Magistrate must consider, including protecting the community and ensuring public safety, because it enforces a period of time during which an offender cannot possess a firearm. Magistrates will often comment that the imposition of a bond is not trivial, it is a burden of significance for firearms owners.[1]

For these types of breaches, we suggest a CRO is a Magistrate’s acknowledgement that, despite needing to punish breaches of the Act’s safety requirements, the person before them is “fit and proper” to hold a licence once their bond period has been served. Importantly, by not recording a conviction (which would trigger a mandatory licence suspension), the Magistrate effectively allows a firearm owner to retain their licence after seeing out the bond.

A system where NSW Police bring charges against any breaches and Magistrates fairly and impartially determine an appropriate punishment is an appropriate method of dealing with Firearms Act offences. Importantly, ensuring the power to enforce and decide laws remains separate is a fundamental requirement in our legal system.

Despite having this system in place, the Firearms Registry (“the Registry”) frequently issue licence suspension notices in circumstances we would describe as concerning.

We have seen that, even when Magistrates make a CRO and do not record a conviction, the Registry often issues a Notice to Suspend regardless, under not “fit and proper” person grounds. Essentially, this overrides the Magistrate’s impartial consideration of the facts and ultimate decision; that the licence should not be suspended once the bond period is complete.

We also see cases of gun owners charged with criminal offences issued with a Notice to Suspend prior to a criminal hearing. The decision to suspend is made on the “balance of probabilities”, a less rigorous standard of proof than the criminal law standard, “beyond reasonable doubt”. While a licence holder could review this Notice, this would necessarily involve disclosing aspects of their criminal matter (which is yet to be determined). Effectively, a gun owner must surrender their right to silence if they wish to dispute the Registry’s decision.

While the Firearms Act appropriately puts public safety at the centre, and NSW Police rightly bring breaches before courts with regularity, the Registry appears to suspend firearms licences despite judicial decisions made by Magistrates, or prior to fair criminal proceedings having finished. This raises the question, why have Magistrates decide charges at all, if the Registry apparently has ultimate decision making power about firearms licences? This is especially concerning where it appears judicial decisions are being disregarded. 

This article was co-authored by Law Cadet Ben Goodhew.

[1] R v Mauger [2012] NSWCCA51, [37]

 

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