: Firearms licences and the ‘public interest’

Firearms licences and the ‘public interest’

NSW Editorial Committee
New South Wales

Should the right to possess and use firearms be considered a protected individual civil right? Or a privilege regulated by governments and balanced against the ‘public good’?

In 1996 all Australian governments agreed that personal protection would not be regarded as a genuine reason for owning, possessing or using a firearm. Section 3 of the Firearms Act 1996 (NSW) lists as one of its underlying principles ‘to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety’ and regulation 19 of the Firearms Regulation 2006 provides that the Commissioner of Police may revoke a licence if satisfied that it is not in the public interest for the licensee to continue to hold the licence. Despite this, there is evidence of support within Australia for recognition of a right to firearm ownership. However, it is difficult to know whether these views are reflective of the wider community or not.

For example in an interview published on the Sporting Shooters’ Association of Australia website, the Federal Independent MP Bob Katter commented, ‘You are allowed to have a rifle for sporting purposes, but you are not allowed to have one to protect your wife and family from the monsters of the night. The towering brainlessness in our country is demonstrated here. What sort of values say you can use a firearm for sport, but not to protect your children?’

The article goes on to say that ‘Bob doesn’t want the government to usurp his responsibility of protecting his wife and children’. ‘That is a responsibility that I will discharge,’ he said. He’s quick to acknowledge that the state’s intervention is necessary in some cases, but ‘only a brainless and irresponsible person’ would give up his right to protect his family as he sees fit. He says Australians, whether consciously or not, have empowered the state increasingly while sacrificing individual rights and that ‘the politicians have betrayed away our rights. ‘All of our laws should incorporate the right to protect ourselves, where suitable and where necessary, with a firearm.’ - ssaa.org.au

The Firearms Policy of Australia’s Liberal Democratic Party also includes the following:

Australians have a right to decide how best to protect themselves, their families and property. Many have relied on guns in their homes to sleep more comfortably for over two hundred years. Indeed firearms may be the only means by which people such as women, the elderly and infirm can hope to defend themselves against rapists, robbers and murderers. - ldp.org.au

The use of firearms for self-defence has also long been of interest to the NSW Shooters’ Party (now the Australian Shooters’ and Fishers’ Party).

In late 2010, the Administrative Decisions Tribunal of NSW released a judgment which appears to favour the rights of an individual to continue to hold a firearms licence over public safety concerns, despite the legislative and regulatory provisions outlined above.

In Potts v Commissioner of Police, [2010] NSWADT 311, the ADT found that, despite a range of factors, including anti-Semitic statements, concerns expressed by police and a mental health professional, and an incident at his former partner’s home, a firearms licencee was entitled to continue to hold a licence, in the public interest. The Judicial Member presiding found that,

The fact that he holds political and religious views and opinions that are offensive is not, in my opinion, sufficient to find that the public interest requires that he no longer hold a firearms licence. To do so would be to embark on a slippery slope towards rights and privileges being granted to those who hold approved opinions, and to give significant power to those who determine what those approved powers are. This is the road to totalitarianism. The position would be different if there was any evidence that Mr Potts has advocated or attempted to use force in order to advance his views. There is no such evidence.

This reasoning would appear to support the existence of a ‘right’ to a firearms licence in NSW — a necessary pre-cursor to lawful ownership of a firearm. Such a right, if indeed it does exist, would appear at odds with both the NSW Firearms Act and the National Firearms Agreement upon which it is based.

NSW EDITORIAL COMMITTEE

(2011) 36(2) AltLJ 131
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