Australia: Firearm and Private Security Licensing Regimes – Police discretion and its limits

Within the firearm and private security licensing regimes lie many discretionary decisions which can often leave people with legitimate and genuine purposes to be licensed without the confidence to have these decisions reviewed.

It is fundamental that where there is discretion, there is accountability.

The internal review process can at times seem insurmountable. Our lawyers can assist you in convincing the Licensing and Regulation Division of the Victoria Police that you are a suitable candidate to hold a license.

I use the word "candidate" because the way that the Licensing and Regulation Division ('LRD') suspend and cancel licenses, or hold disciplinary inquiries, make it clear that these licenses are a privilege.

In the case of firearms, this has been the experience ever since the Port Arthur Massacre.

There are obviously important policy reasons for this that Australians are acutely aware of.

Unfortunately, there are many cases in which these policy reasons are not appropriately reflected in practice.

We are often approached by clients who have had their license suspended with impending cancellations, who require licenses for their employment and, in certain cases, for their livelihood.

Other times our clients are lifelong collectors, avid sport shooting fans or just an average person who wants to bond with family at their local shooting range.

At the heart of the regulatory regime is public safety.

This is why certain criminal offences and final intervention orders carry with it the ability to change your status to a " prohibited person" under the Firearms Act 1996 and the Private Security Act 2004.

Firearm Licences

It is not often mentioned at the stage of a final intervention order that when a person is consenting "without admissions" that they will then be deemed a prohibited person.

When faced with the pressure of losing their place in the family home or contact with their children – how can one blame you that it becomes an afterthought?

But that doesn't mean that there is no recourse. Just be mindful that the recourse is time-limited, and you contact one of our lawyers immediately because if the period expires, you will retain your "prohibited person" status for 5 years.

We can apply to the Magistrates' Court seeking an order deeming you a non-prohibited person.

There is a process to this, and there are many factors to take into consideration which form the substance of our written and oral submissions to the Court.

Important starting considerations are:

• Was a firearm mentioned in the narrative/allegations that founded the ¹
• Was the protected person aware that you had firearms?
• Does the Chief Commissioner (who effectively represents the public interest²) oppose the application?
• Do you have a history of gun-related or other convictions or any other criminal conduct?³

Private Security Licences

Requirements under the Private Security Act (2004) are stringent. They require an assessment of what is in the public interest, whether you are fit and proper and whether you are prohibited or have been charged with a disqualifying offence.

The assessment of "fit and proper" necessarily overlaps with the public interest consideration in that it extends to any aspect of your fitness and propriety relevant to the public interest⁴ and it takes its meaning from the activities that you will be engaged in.⁵

The disciplinary process and available sanctions are "by their nature punitive".⁶ This is particularly the case when you are left without employment pending the decision of LRD.

Not to mention the angst of not knowing what consequences may flow; if for example, you are charged with a disqualifying offence "involving assault or violence against a person." ⁷

Enquiries with our lawyers by a security guard charged with such an offence will reveal two priorities – firstly, to get you the best outcome for the criminal offence, given that the difference between a conviction and non-conviction can be 5 years of prohibition; and secondly, to put all relevant matters to the LRD to convince them that despite this you remain a suitable person to hold your license.

There is significant overlap between the firearm and private security licensing regimes.

Both have public safety as one of their guiding principles. Both require a person to be "fit and proper" to hold a license. Both decisions are at the LRD's wide discretion.

And this discretion ought to be challenged and reviewed.

A case in point as to why this is important are cancellations on the basis of mental illness.

It appears paradoxical that the LRD, at their discretion, can suspend with impending cancellation of a person's license due to mere suspicion of a mental illness. Yet they themselves have acknowledged that "it is not for the Chief Commissioner [or] his delegate to diagnose mental illness; rather, it is task for a properly qualified medical practitioner".⁸

I could go on and on critiquing the proper exercise of police discretion. But better to save that for the content of the submissions we file on your behalf.

Footnotes

¹ Pickford v Chief Commissioner of Police [2002] VSC 435 at [7].

² Clark and Chief Commissioner of Police [2010] VSC 144 (Justice Osborn) [7].

³ Ibid.

⁴ Australian Broadcasting Tribunal (1990) 170 CLR 321, 348 (Mason CJ).

⁵ Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 [380].

⁶ Quinn v Law Institute of Victoria Limited [2007] VSCA 122 at [30].

⁷ Private Security Act (2004), s 47.

⁸ Mazur v Firearms Appeal Committee (Review and Regulation) [2016] VCAT 1776 [37]; ZZN v Firearms Appeals Committee (Review and Regulation) [2017] VCAT 1563 [75].