The Facts
Licensee issued with a firearms licence
TheΒ licenseeΒ was the holder of aΒ firearmsΒ licenceΒ issued under theΒ NSWΒ Firearms Act.Β
TheΒ licenceΒ wasΒ issued in 2011Β with an expiry date inΒ 2017Β andΒ wasΒ for recreational purposesΒ such as sport, target shooting, hunting and verminΒ control.
Licenseeβs firearms licence revoked following execution of search warrant
In 2012Β theΒ policeΒ executed a search warrant ofΒ theΒ licenseeβsΒ homeΒ and seized a number of items.Β TheseΒ includedΒ aΒ rifle fitted with a stock and aΒ 3D printerΒ which was thought to be used to manufacture weapons.Β Β
TheΒ policeΒ thenΒ revoked theΒ licenseeβsΒ firearmsΒ licenceΒ on the groundsΒ that it was not in the public interest for him to continue to hold such a licence.
Licensee seeks reinstatement of firearms licence
TheΒ licenseeΒ made anΒ unsuccessfulΒ application for internal review of this decision, after which heΒ lodged an application for review by theΒ NSW Civil and AdministrativeΒ Tribunal.Β Β
TheΒ tribunalΒ ruledΒ in favour of the police andΒ theΒ licenseeΒ appealedΒ to theΒ tribunalβs appeals panel.Β
Expert commentary on the court's decision
Court finds in favour of Commissioner of Police
InΒ Masterson v Commissioner of Police, New South WalesΒ [2017] NSWCATAP 206,Β theΒ appeals panel of theΒ NSW Civil and AdministrativeΒ Tribunal dismissed the appeal of theΒ licensee, Tristan Masterson,Β andΒ affirmedΒ theΒ policeβs decision to revokeΒ MrΒ MastersonβsΒ firearmsΒ licence.Β Β
Licence only reinstated if virtually no risk to public
The appeals panel noted that βthe objects of theΒ Firearms ActΒ state there is a need to ensure public safety by imposing strict controls on the possession and use ofΒ firearms and confirms that an authority to use and possess firearms is a privilegeβ.Β
The appeals panelΒ alsoΒ notedΒ that for theΒ tribunal to reach a conclusion thatΒ MrΒ MastersonβsΒ licenceΒ should be reinstated,Β itΒ had to be satisfied thatΒ there isΒ βvirtually no riskβΒ to the public.Β
Rifle fitted with stock operating telescopically is prohibited firearm
Under theΒ Firearms Act, a rifle fitted with a stock βthat is specially designedβ to operate on a telescopic basis is aΒ prohibitedΒ firearm.Β Β
MrΒ MastersonβsΒ licenceΒ did not grant himΒ authorityΒ to possessΒ thisΒ prohibited firearm.Β Β
MrΒ Masterson argued that theΒ modificationsΒ he made meant that theΒ firearm was not prohibited.Β However, the appeals panelΒ rejected this argument.Β Β
Rather, the appeals panelΒ said thatΒ althoughΒ the modifications may have prevented telescopic action being readily engaged at a particular point in time,Β βthe modificationsβ¦Β were not of such a nature so as to permanently modify the original design so that the stock was incapable of operating in a telescopic manner in any circumstanceβ.Β Β
Facts surrounding licenseeβs rifle relevant to determining public interest question
TheΒ appealsΒ panelΒ concluded thatΒ theΒ fitting of a modified stock to a firearmΒ thatΒ MrΒ Masterson was entitled to possess, and the fact that the stock could be altered back to a state where it could operate telescopically,Β were relevantΒ considerations.Β The tribunal was entitled to considerΒ these inΒ determiningΒ whether it was in the public interest to allowΒ MrΒ Masterson to hold a firearmsΒ licence.Β Β
The appeal panelΒ alsoΒ foundΒ thatΒ these matters were sufficient for the tribunal to reach the conclusion thatΒ MrΒ MastersonβsΒ licenceΒ should be revoked andΒ the policeβs decision should be affirmed.Β
Licensee can manufacture firearm parts to maintain legally held firearms
Given the above, theΒ appeals panelΒ said thatΒ itΒ wasΒ unnecessary toΒ deal with the other grounds of appeal.Β However, it chose to do so.Β Β
One of those grounds related to the manufacture of firearm parts byΒ MrΒ Masterson using his 3D printer.Β Β
The tribunal had concluded that the making of firearm parts was not authorised andΒ βeffectively undermines the objects of theΒ Firearms Actβ¦ in promoting public safety through the strict control and possession of firearms.βΒ
The appeals panel accepted the tribunalβs conclusion thatΒ MrΒ Masterson hadΒ in factΒ attempted to manufacture firearm parts,Β even though his printer was not good enough to do it.Β Β
However, theΒ appeals panelΒ said theΒ tribunal was incorrect in finding thatΒ MrΒ Masterson could not manufacture any firearm partsΒ at all.Β Β
Rather, the correct interpretation of theΒ legislationΒ was that heΒ wasΒ entitled to manufacture parts for the repair or maintenance of firearms whichΒ heΒ was entitled to use and possess.
Licensee attempts to manufacture prohibited weapon
TheΒ tribunal also found thatΒ the firearm partΒ thatΒ MrΒ Masterson wasΒ attemptingΒ to manufacture wasΒ a magazine with a capacity of more thanΒ tenΒ rounds, which would be a prohibited weapon.Β Β
Under the firearms legislation, this was somethingΒ thatΒ MrΒ Masterson was notΒ authorisedΒ to do.Β Β
The appeals panel found that the tribunal was entitled to consider this conduct in determining whether it was in the public interest to revoke Mr Mastersonβs firearms licence.
Public policy in protecting against risk from firearms
This case is a good example of the relevance of public policyΒ inΒ the craftingΒ of legislation andΒ inΒ the way that such legislation is applied.Β Β
Both the tribunal and the appeals panel emphasised that possession and use of a firearm is a privilege which isΒ βconditional on the overriding need to ensure public safety.βΒ
MrΒ Masterson behaved in a way that posed a risk to public safety, and so he lostΒ theΒ privilegeΒ of possessingΒ firearms, and consequently, his firearmsΒ licence.Β