RECENT CASE INVOLVING EXCEEDING TERMS OF LICENCE IN ORDER TO PROTECT PEOPLE
Fortunately, an election was pending in his electorate, and a number of lobby groups, and the Shooter’s Fishers and Farmers Party, became involved. This led to National Party MP’s making representations to the Firearms Registry, and the Farmer’s licence was reinstated.
John Barillaro commented at the time, and at a subsequent public meeting in Queanbeyan, that if he were a licence holder and faced with the same circumstances as the Riverina farmer, he hoped that he would have done the same, and that he intended to seek to reform the law.
If Mr Barillaro has attempted, his government has failed to accede to his wishes.
The recent case of HERMANN V COMMISSIONER OF POLICE 2020 NSWCATAD 127 is another clear example of the difficulties that are faced by a citizen who exceeds the conditions on his licence, and uses a firearm- even without firing it, under circumstances where such action was reasonable.
Mr Hermann (‘H’) held a Cat H licence issued for the genuine reason of business and employment in respect to his duties as an armed security guard.
On 2 May 2019 H was one of three guards undertaking guard duties at a Jewish school in Sydney’s Eastern Suburbs.
The licence conditions on the firearms licence under which he operated restricted use of firearms to ‘static guarding, uniformed and strictly for the protection of cash and valuables’’ and not for any other purposes.
Days before the incident, there had been a heightened alarm about threats to Jewish institutions and community following some events overseas.
A person was sited in fenced scrubland near the school and observed by security cameras. When he became out of sight of cameras, H and colleagues were directed to investigate.
H challenged an individual when he was 15-20 M away, crouched and observing the school. H could not determine the level of threat, although the individual failed to respond to a warning.
H drew his pistol. His finger was outside the trigger. He called for backup. The individual was handcuffed and the firearm holstered.
The individual had a bum bag, a wallet and pocket knife with a blade of less than 5cm in it. Interestingly Police did not ‘consider this a proper knife’ and returned it to him.
The individual had a bulge under his clothing that could not be readily identified. He had taken deliberate and unauthorised action to enter an enclosed area and failed to respond to H’s challenge to explain his behaviour.
The school was in lock down, and the conduct was very suspicious.
H had not drawn his sidearm in 16 year of work.
The Police report acknowledged that the incident was reasonable based on the victim’s behaviour and the raised risk rating issued by the Jewish Community Services Group. Nonetheless his licence was revoked because the use of the firearm was contrary to the authority conferred by his licence.
H was not charged with offences related to contravention of any licence condition nor was he charged with assault. I am not aware of any action being taken in respect to his security licence.
All references to sections relate to sections of the Firearms Act 1996.
Section 3 provides that Firearms ownership is a privilege, and that the laws are intended to improve public safety s3(1)(a)(b) and to impose strict controls on possession and use s3(1)(c).
Section 11 (3) provides one must be a ‘fit and proper person’ and that s11 (4) that the Commissioner must not issue unless the licensee can exercise continuous and responsible control over the firearm.
Section 24(2)(b)(iii) provides a discretion regarding revocation for licence condition contravention, but s8 (1) provides that a Cat H licensee is authorised to possess and use but only for the purpose established as being the genuine reason on the licence s8(2)(a) provides that personal protection or the protection of another person or the protection of property other than established in the genuine reason is not grounds for possession or use.
Section 12 provides for business and employment as a genuine reason.
H’s barrister submitted that ‘Genuine reason’ is only relevant when an application is made for a licence but that thereafter a firearm may be used in a manner inconsistent with the genuine reason when as here the applicant believed that he was genuinely entitled to use it’.
This I would have thought would be a practical solution, however, the Tribunal did not accept this contention as this does not consider other aspects of the Act, particularly offences set out in s7 and s7A, which is a valid point that shall bring me to my suggested remedy at the end of this paper.
The Tribunal considered that there was a real justification for H drawing his firearm and the Senior Member observed that she:
‘did not accept the Respondent’s contention that the Applicant’s action of pointing a firearm at Mr A outside the boundaries of the school, in the absence of observing a weapon or any reasonable imminent threat was unreasonable or unjustifiable’.
It noted that he had carried a firearm as a security guard for sixteen year without incident.
However, the licence conferred no authority to use the firearm to protect or defend people.
So, H was guarding children at a school on the basis of a licence that authorised use of a firearm for the protection of cash and valuables but not children.
The Act is sadly clear, firearms may only be used to protect money and property, and not human life, which is infinitely more valuable.
Why you may ask is this so? This question is best asked of the major banks, who lobby inevitably influenced Politicians at the time that the law was introduced.
In reinstating the licence, the Senior Member of the Tribunal who heard the decision has reached the right decision here, for the right reasons.
Courts and Tribunals are there to apply the law and not to make it. There is a limited scope for a Court or Tribunal to exercise a little intellectual massage here and there, but its role is limited.
The incident at the school occurred on 2 May 2019, and tribunal orders ordering reinstatement on 20 May 2020. I shudder to think of the cost to Mr Hermann, in terms of loss of income, legal cost, and emotional wear and tear that action taken to use a firearm for defence of school children, brought.
The problem, consistent with the position adopted by Police in respect to this matter, is that there is a belief that the only people who can lawfully use a firearm in order to defend themselves are Police, and this is reflected in the legislation. Furthermore, any permissive allowance of the defence of a person other than by Police, shall somehow lead to the replication of American gun culture in Australia.
This is an absurd proposition.
Having said this, H was at a school to protect children and staff, from the very real threats that the Jewish community face in Australia, and not buildings and assets that are presumably insured, and thus his actions were therefore in flagrant breach of licence conditions imposed under strict legislation.
This is a very difficult position for a regulator charged with the position of policing and implementing an Act to deal with.
One solution may be the adoption in the Act, of a defence that is broadly analogous to the Criminal law defence of Necessity. So that conduct is excusable if- and I quote from the Criminal Trials Court Bench Book.
‘In R v Cairns  2 Crim App Rep 137, it was held that an accused will have a defence of necessity if —
(i) the commission of the crime was necessary, or reasonably believed to have been necessary, for the purpose of avoiding or preventing death or serious injury to himself or herself, or another;
(ii) that necessity was the sine qua non of the commission of the crime; and
(iii) the commission of the crime, viewed objectively, was reasonable and proportionate, having regard to the evil to be avoided or prevented.
This defence is very rarely used, and I would not anticipate that such a provision in the Firearms Act would ever be used much either.
However, it would help avoid situations such as this where application of the law, and stance of the Regulator, adds to the public perception that ‘the law is an Ass’ and further discredits the Firearms Laws.
The take home point from this case for most shooters is however that Firearms Laws are deliberately strict, and if one wishes to keep ones licence they must be obeyed to the letter.