Court proceedings can adversely impact upon a license
The ability to apply for, renew or retain a license apply for, renew, or maintain a firearm’s license can be affected by:
· Making of a final intervention order (Family Violence or Personal Safety)
· By a sentencing outcome for serious criminal offences (imprisonment or Community Correction Order)
· A finding of guilt for an indictable offence
· A finding of guilt for any offence under the Firearms Act 1996.
Any of these outcomes can result in a person having the status of a “prohibited person” for the purposes of the various provisions of the Firearms Act 1996 (Victoria) that regulate licensing.
The impact of Final and Interim Intervention Orders
It is important to note that it is not only criminal proceedings that might trigger a “prohibited person” status. Any final intervention order (Family Violence or Personal Safety) will activate the “prohibited person” status. It is also the case that the making of an interim family violence intervention order will cause Victoria Police LRD (Licensing & Regulation Division) to issue a ‘Notice of Intention to Suspend and Proposal to Cancel’. This notice must inform the license holder that they have 28 days in which to make written submissions in response to the notice. To avoid cancellation, an initial response must be made within 28 days.
Fit and proper person
Another ground upon which a notice of suspension and proposal to cancel can be issued, is upon criminal activities that suggest to VicPol that the license holder is not a fit and proper person.
The term “fit and proper person” is not defined under the Firearms Act 1996, but some assistance can be derived through information published on the Victorian Licensing and Regulation Division of Victoria Police through their website (www.police.vic.gov.au).
The concept of 'fit and proper' is a broad one that takes account of a number of things including the qualities and characteristics of the applicant, the activities they are seeking to perform and the ends to be served by those activities.
Private security licence holders hold a high level of responsibility as they perform activities with the aim of ensuring public safety and peace. It is important to ensure that only suitable persons are licensed to perform such activities.
When assessing whether an applicant is fit and proper to hold a private security licence, factors assessed include:
· physical and mental health;
· criminal history;
· other contacts with police, and
· any other matters that may be relevant to the applicant's character
and their suitability to be licensed.
The term ‘fit and proper person’ has also been judicially considered by our Courts.
In a case unrelated to firearms, but relevant to the meaning of a statutory ‘fit and proper person’ test, the High Court in Australian Broadcasting Tribunal v. Bond  HCA 33 interpreted the expression ‘fit and proper person’, and the Court’s reasoning has been applied in subsequent cases relating to firearms (Coare v Firearms Appeals Committee  VCAT 2827; Hutchings v. Commissioner of Police, New South Wales Police Service  NSWADT 62;).
In ABT v Bond  HCA at (paragraph 36), the Court observed that the ‘fit and proper person’ test:
“It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of ‘fit and proper’ cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur.
The Court further remarked (at paragraph 63) that:
“The question of whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and proprietary are under consideration”
It has also been held that the term ‘fit and proper person” must be interpreted so as to promote the purpose or object of the relevant legislation I question (Siguenza v Secretary, Department of Infrastructure  VSC 46 & see section 35 of the Interpretation of Legislation Act 1984 (Vic)).
Consequently, one of the relevant purposes underpinning the Firearms Act 1966 (Vic) is public safety.
In responding to an application that raises a license holder’s eligibility to retain a firearm license it will be necessary to ensure the following are addressed:
- Whether the criminal activity relates to an offence which involved a firearm.
- The criminal history (if any) and the nature of those offences (whether old, minor in nature, unrelated to firearms)
- History of compliance with the firearms laws and regulations
- Evidence of good character supported by character references
- Whether there are any physical or mental health conditions that would bear upon the fitness of the person to continue to hold a license
- Whether there are any matters that bear upon fitness due to problematic consumption of drugs and or alcohol (for example several prior convictions for drug related or drink driving related offences)
Where the Notice of Suspension and Proposal to Cancel is about an interim intervention order, the primary ground of suspension will simply be the making of the interim intervention order itself. In such cases, it will be necessary to send a submission that addresses:
- Good character (as evidenced by character evidence)
- Good history of compliance with firearm laws and legislation
- That the intervention order proceeds have not finalised and may in fact be contested,
- A request that any proposal to cancel be stayed until the intervention order proceedings are finalised.
Again, a response within 28 days must be made to keep any proposal to cancel in abeyance until the intervention order proceedings are determined.
By operation of section 189 of the Act, a person may obtain an order that they be deemed a ‘non-prohibited person’. There are limited circumstances under which this application can be made. Critically for intervention orders (family violence or personal safety) that are made on a final basis, the Order must be silent as to firearm conditions (that is a refusal to possess/use firearms).
If a final order does contain notations or conditions adversely impacting a respondent’s firearm license, that person must seek a variation of the final order or appeal the making of the Order to the County Court. Where no appeal or variation is sought, or whether the variation/appeal is unsuccessful, the prohibited person status continues for 5 years (Stephenson v Lebessis  VSC 498).
An application under section 189 of the Act is made by completing the prescribed court form (available on the Magistrates’ Court website: www.mcv.vic.gov.au).
In the application, the person must specify the grounds upon which they seek to be declared a non-prohibited person (employment, recreational shooting). After the form is lodged in the relevant venue of the Magistrates’ Court, a copy of the application must be served upon the police. The Court registrar will then fix a date approximately for the hearing (about 1 month after the application is lodged).
The information in this article is general and is not provided as a substitute for legal advice. If you are at risk of losing your firearms license, please call our office to organise an obligation free consultation to discuss your situation. Early preparation is key to an effective response.
To organise a free consultation call our office on 03 9668 7600.