Testing the dragon of authority

Yesterday's post considered a NSW Administrative Decisions Tribunal (ADT) judgment regarding questions of identity. There has been more media attention to two other decisions regarding firearms - and the construction of identity through denial of access to weapons - than the ADT stance on CV enhancement.

In Potts v Commissioner of Police, NSW Police Service [2010] NSWADT 311 the ADT noted that Mr Potts -

has a propensity to "test the dragon" of authority in order to provoke and test responses, yet he is by all other measures a law-abiding member of the community and of apparent good character.

His firearms licences under the Firearms Act 1996 (NSW) had been suspended following a Domestic Violence Order in 2009 (since discharged). He sought reinstatement of the licences, indicating that -

If my licence is revoked, particularly working in the ACT, it could seriously affect my ability to obtain police and security clearances to work in many Defence, ACT and Commonwealth government department buildings due to the stigma that may be associated with a revocation of a licence to keep and use firearms. The ability to provide for my Children could be seriously affected.

Potts is a lift technician at Parliament House in Canberra.

In considering his request for reinstatement of the licences he was required to undergo a psychiatric assessment, during which he described himself as "a very angry man" and it became apparent that he held what the ADT characterises as "unorthodox views with respect to political and religious role of the Judaism, the nature of the Holocaust, and those responsible for the events of September 11". Those views appear to include Holocaust denial and anxieties about "racial mixing". The Commissioner of Police, in refusing to reinstate the licence, indicated that the views as such were not the basis for a public interest revocation of his firearms; instead 'the issue is what those view say about his mental state' -

The Commissioner argued that the revocation was justified in the public interest on the basis of concerns arising from Mr Potts's behaviour at his former partner's home on 21 July 2009, his attitude towards those in authority, alleged threats made with respect to his children, and as a result of [the psychiatrist's] report.

The Daily Telegraph report of 20 January reads that -

he believed Jews were plotting to dilute other races by encouraging mixed-race children and he had unwittingly played into their hands by having children with his Korean-born wife - from whom he has separated.

"If I had've known this information I would not have participated in mixed-race marriage," he said.

He also said Jewish spies, posing as "Israeli art peddlers" were visiting his house because he was "a person of interest" to them.

Ah, the ingenious Mossad boys disguised as art peddlers!

The ADT took a conservative position, stating that -

There is no doubt that Mr Potts holds political and religious view that can be fairly categorised as highly unusual, if not extreme, and would be regarded by many in the community as offensive and racist. He is, however, a man who has no convictions for offences and whose past demonstrates that he is a law-abiding, hard working member of the community. There is no evidence that he has ever used violence, or advocated its use in pursuit of his religious or political objectives. Similarly, there is no suggestion that, as the holder of firearms licence, he has ever used his weapons inappropriately, failed to store them as required, or otherwise breached the responsibilities which the privilege of a firearms licence carries with it.

It is apparent that Mr Potts is an intelligent man with his own idiosyncratic views, and little tolerance or respect for those in authority, especially if they give him reason to doubt their ability and competence. He said that he respects laws (as his history would appear to justify) but has little respect for its functionaries. His evidence was that his comments to Constables Young and Lawler about conspiracies and the Jewish hierarchy were said, deliberately, to gauge their reactions. He deliberately escalated the conflict with his wife to the point where Police were called, and then pushed the boundaries with them as far as he could go without being arrested. He described his actions as “recalcitrant”.

His correspondence with the Firearms Registry concerning the revocation decision reveals his contempt for the view they expressed to Dr Tym that Mr Potts had expressed white supremacist and anti-Islamic views. There was no evidence to justify that conclusion. Mr Potts was scathing in his resultant commentary. He was equally scathing in his criticism of Dr Tym’s conclusions.

In his presentation to the Tribunal Mr Potts was equally willing to test the boundaries. From the commencement of the hearing he told me that he didn’t really care about his firearms licence, but was pressing on with his appeal in order to prove a point. His principal point was that his political views do not lead to the conclusion that he has a mental illness.

The ADT went on to

whether Mr Potts’s firearms licence should be revoked in the public interest. This question has troubled me. Mr Potts holds views which are offensive to many. He has a propensity to "test the dragon" of authority in order to provoke and test responses, yet he is by all other measures a law-abiding member of the community and of apparent good character.

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.

Mr Potts' calculated provocation of those in authority is the matter which has concerned me. Ms Tillott submitted that, in the light of his propensity to test the dragon, I could not be satisfied that Mr Potts would co-operate as required with Firearms Registry with respect to his firearms licence and exercise the responsibilities required of a firearms licensee. Ms Tillott submitted that I should conclude that Mr Potts has little insight into the consequences of his provocative behaviour, and that he displays poor judgement. I do not accept this. In my view the evidence show that Mr Potts makes some very calculated judgments and goes as far as he can without overstepping the legal boundaries, while being aware of the likely consequences.

The issue for the Tribunal is whether it is contrary to the public interest for Mr Potts to hold his firearms licences as a consequence. I think that, whether he holds a firearms licence or not, Mr Potts will continue to test the dragon. If he does not hold a firearms licence, the Firearms Registry may not be the subject of that testing. That, however, is not the test.

It concluded that -

There is, my view, no evidence that Mr Potts poses a risk to the public if he is allowed to continue to have a firearms licence.

As a result I conclude that the public interest does not require that his firearms licences be revoked.

I'm hoping not to encounter Mr Potts when I visit Parliament House next month.

In Sydney Pistol Club v Commissioner of Police, NSW Police Force [2010] NSWADT 28 the ADT stayed the NSW Police Commissioner's suspension of licences held by the pistol club. That suspension reflected a murder -

in August 2010 an unlicensed shooter ... stole a pistol which was registered to the Applicant and which had been on loan to the unlicensed shooter. The unlicensed shooter who stole the pistol was undergoing Club training. That pistol, and ammunition obtained from the Applicant, was subsequently used in a murder.

From other information it would appear that the shooter killed her father.

The rationale for the stay appears to be that -

f the stay application is refused, it is to be expected that the process of renewal of memberships will be affected. Members who are unable to participate in club activities could be expected to seek alternatives and this would most probably result in their joining other clubs. It is also probable that a proportion of those members who join another club would not rejoin the Applicant if the application was ultimately determined in the Applicant’s favour.

Apart from being a major inconvenience to the members, is also detrimental to the ongoing training of new members who need continuity in their induction program. It is also detrimental to the external range users such as the Police and Security organisations that utilise the range for training purposes as it is the only facility in that part of Sydney that meets their requirements.

If the Applicant ceased its operations as a result of the condition, there would be no point in the Tribunal subsequently making an order that the imposition of the condition was not the "correct or preferable" decision.

If the Tribunal grants the stay, the Applicant will be able to process membership renewals and continue to conduct club activities. When the Tribunal comes to assess the merits of the decision, the immediate threat to its continued operation will not be a factor for consideration.

... the Applicant’s senior vice president, gave evidence in regard to the potential impact on the Applicant if the condition remains in place. His evidence is that the ultimate impact would be that the Club would have to close. The Club has already had to cancel a scheduled competition. In his opinion, it is improbable that existing members will renew their membership if the Applicant cannot conduct club activities. The would most likely join another club and most would be reluctant to pay the membership fees associated membership of more than one club.

The Commissioner argued that there are -

safety issues associated with the practices of the Applicant and that the level of knowledge of senior members of the club is a relevant factor to be considered by the Tribunal ... the events of 22 August 2010 clearly demonstrate the cause for that concern. She says that Mr George’s answers under cross-examination were illustrative of the deficiency in the level of knowledge of senior members of the Applicant.

... the underlying principle of the Act is public safety. The Commissioner accepts that 150 people will be inconvenienced as a result of the imposition of the condition, but the Commissioner says that that is a very small price to pay when ensuring public safety. Ms Tillott submits that it is in the public interest for shooting to be suspended at that particular range, until all of the safety issues are able to be addressed. The Commissioner contends that the accounts that have been provided from various witnesses and interviewees, along with the answers given by Mr George as the senior vice president, indicate a disturbing lack of knowledge of the relevant legislation and the requirements of the club itself.

The ADT concluded that -

In my view the Applicant will suffer irreparable loss if a stay is not granted because it is likely that it would have to cease operation. It is likely that it will suffer a loss of which could not be overcome by any order of the Tribunal. For those reasons I am satisfied that a stay is appropriate to secure the effectiveness of the determination of the application.

... I also note the assertion that the unlicensed shooter was loaned a firearm by a licensed member of the Applicant. There appears to be some uncertainty about what actually took place in that regard on 22 August 2010, however it is my view that a record should be maintained where there is lending of firearms by a licensed member of the Applicant.

We might instead ask restrictions on access to pistols are too permissive; in 2011 there are a plethora of ways for people to entertain themselves without shooting holes in cardboard targets or each other.

Other recent ADT licensing cases include Wells v Commissioner of Police, NSW Police Force [2010] NSWADT 246, Wells v Commissioner of Police, NSW Police Force [2010] NSWADT 246 and Burrett v Commissioner of Police, NSW Police Force [2010] NSWADT 210.

The SMH, in discussing the pistol club dispute, notes that -

More than 191,000 firearms licences and permits are issued at present and nearly 750,000 firearms are registered in NSW

and that -

The tribunal also ordered the police-run Firearms Registry to reconsider its refusal of an application by a teenager who, police allege, was an associate of the Rebels motorcycle gang and had assaulted a man in 2006. Police had found 12 unregistered firearms hidden in a cavity in his bedroom when he was 15. His DNA was found on three of them.

The tribunal found it was possible he did not know the guns were hidden in the room, ruled he was a fit and proper person and rejected the police decision to revoke his licence