Victoria Police v Firearms Appeals Committee (Review and Regulation) (Amended) [2016] VCAT 2069 (9 December 2016)

Last Updated: 14 December 2016

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION

ORDERS

1. The decision of the Firearms Appeals Committee dated 9 August 2016 is set aside.
2. The decision of delegate of the Chief Commissioner of Police, dated 16 February 2016, cancelling the firearms licences held by the second respondent is affirmed.

REASONS

What is this proceeding about?

1. This case is about whether I can be satisfied that Mr Christopher Shortis is a fit and proper person to hold a firearms licence.
2. Until 16 February 2016, Mr Shortis held firearms licences, which were issued for the purpose of sport or target shooting.
3. That day, a delegate of the Chief Commissioner of Police cancelled the licences, under s 49(1)(f) of the Firearms Act 1996 (the Act) on the basis that Mr Shortis was no longer a fit and proper person to hold such licences.
4. Being unlicenced, Mr Shortis placed his firearms with a licenced firearms dealer and asked the Firearms Appeals Committee (the Committee) to review the decision.
5. On 9 August 2016, the Committee found Mr Shortis to be a fit and proper person to hold firearms and decided his firearms licences should be restored to him.
6. Victoria Police seeks review of that decision by VCAT, submitting Mr Shortis is no longer a fit and proper person to hold firearms licences given videos and material Mr Shortis published via the Internet and him in 2016 being part of a group which beheaded a life-size human manikin in Bendigo.
7. Mr Shortis maintains he is a law-abiding citizen who has held firearms licences for years without incident, is a responsible firearms owner and gun club member and who has expressed his religious views concerning Bible prophecy and his political views concerning Islam and Muslims in Australia. Further, Mr Shortis says when concerns were raised about videos he had published, he removed them from the Internet.
8. With its decision being the subject of this review, the Committee took a neutral stance, not participating in this proceeding, saying it would abide by VCAT’s decision.

The Legislative Framework

9. The Act’s purpose is to:

give effect to the principle that that the possession, carriage, use, acquisition and disposal of firearms are conditional on the need to ensure public safety and peace by establishing a system of licensing, regulation and registration of firearms.^[1]

10. No citizen of Victoria has an absolute right to own a firearm: an applicant for a firearms licence must meet certain requirements, and a firearms licence may be suspended or cancelled for a number of reasons. One of those reasons is in s 49(1)(f) of the Act – if the holder of the licence is no longer a fit and proper person.
11. In Justice Abolish Child Support and Family Court v State of Victoria (Victoria Police) (Human Rights) [2015] VCAT 771, Harbison J said:

The Firearms Act 1996 provides for extremely stringent conditions to be satisfied before a person is allowed to possess firearms. Paragraph 1 of that Act establishes the principle that possession of firearms by a citizen is conditional on the need to ensure public safety and peace.

Thus, possession of a firearms licence is not a right under that Act but a privilege. The Act gives to Victoria Police the responsibility to assess whether or not a person is a fit and proper person to obtain a firearms licence.

12. Concerning who is a fit and proper person, the following statements of the High Court in Australian Broadcasting Tribunal v Bond have been widely adopted:

...the statutory concept of fit and proper person to hold the licence which is undefined, takes account of qualities and characteristics of the licensee apart from the matters mentioned in [the Act]...the concept should not be narrowly construed or confined. It must extend to any aspect of fitness and propriety that is relevant to the public interest.^[2]

...

The expression ‘fit and proper person’ standing alone carries no precise meaning. 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 person cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities.^[3]

13. Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 concerned whether Mr Barlow was a fit and proper person to hold a firearms licence. Higgins JM said [at 22]:

In my opinion, the term "fit and proper person" in s. 11(3)(a) of the Act should also be given a wide meaning. As stated by Mason CJ the breadth and content of the concept must be derived from the Act and the purposes of the Act. In this case, Parliament has expressly stated what the underlying principles of the Act are. This includes the principle that the possession of a firearm is a privilege and that it is conditional on the overriding need to ensure public safety (see s. 3(1)(a)). Accordingly, the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety. In my opinion Parliament has made this clear with the additional words in s. 11(3)(a) of "... and can be trusted to have possession of firearms without danger to public safety and the peace." That is, s. 11(3)(a) of the Act requires the Commissioner to determine the fitness and propriety of an applicant for a licence by having regard to the applicant's conduct and whether that conduct is such that he can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace.

VCAT’s role

14. On review, VCAT stands in the shoes of the original decision-maker and considers the matter afresh. VCAT considers all the material before the decision-maker and any additional relevant evidence available at the time of the hearing. VCAT may affirm, vary or set aside the decision, or remit the matter to the decision-maker with recommendations.

Evidence

15. The following is drawn from the evidence before me consisting of witness statements from Superintendent Paul Millet, documents, video and Mr Shortis’ explanations of his actions, both written and oral.
16. Mr Shortis describes himself as a Seventh-Day Adventist and a person with political views who is a member of a political organisation and intends to run for political office. A 2013 National Police Certificate shows only two relatively minor offences in the 1990s.
17. At the time Victoria Police cancelled his licences, Mr Shortis held:
    • (a) Categories A and B Longarm Licence (No 717-067-20B) for the purpose of hunting and sport/target shooting; and
    • (b) General Category Handgun licence (No 717-067-80H) for the purpose of target shooting.
18. He has held long arm licences for many years and a handgun licence for two or three years, all without incident. He holds Range Safety Officer accreditation with the gun club to which he belongs. I have no reason to doubt his evidence that he appropriately stores his firearms as the Act requires.
19. In April 2015 Mr Shortis published an image of a forbidding figure in mediaeval Crusader armour overlaid with the words:

In the Classic Battle between Good and Evil!

God’s Will be Done!!

This time,...

... Will be the last!!

And by GOD!,... We will finish! What you started!

NO! Submission To Islam!

20. It appears that in mid-2015, Victoria Police were concerned about his Mr Shortis’ conduct. According to Mr David Cipillone, a fellow member of the Northern Districts Pistol Club, Victoria Police informally contacted him suggesting that he suggest to Mr Shortis that he “calm things down”.^[4]
21. On 4 October 2015, Mr Shortis was part of a small group who, nearby to the Bendigo City Council Offices, beheaded a life-size manikin. The manikin’s head had been replaced with a balloon filled with red liquid, intended to symbolise blood. The liquid spilled onto the footpath. A short video of this was shown during the VCAT hearing.
22. Mr Shortis said this was intended as political comment concerning the potential for an increasing Muslim population in Bendigo.
23. While not relevant to this proceeding, I note Mr Shortis faces charges concerning this conduct to be heard in 2017. Of course, he is presumed innocent unless proven guilty.^[5]
24. In November 2015, the Sunday Age described Mr Shortis as:

A central figure in the anti-Islam Street movement the United Patriotic Front [and] a self-described “Biblical Crusader” with a long history of posting videos to social media in which he poses with semiautomatic weapons and threatened to take up arms against the government and Muslims.

25. The Sunday Age article went on to, through the quotes of others, publish opinion that material Mr Shortis published was similar in nature to material published by Anders Brevic, the extremist who killed 77 people in Sweden in 2011, and discussed appropriate monitoring of what were described as ‘far-right extremist world views’.
26. Victoria Police primarily relied on videos Mr Shortis had published via the Internet.
27. I summarise his video ‘Gun Control 2013 USA+ Bible Prophecy Parts 1 to 3’, in the context of his oral evidence at hearing as expressing his view, which he says is consistent with beliefs of Seventh-day Adventists (about which I express no view). He says the Bible’s Book of Revelations predicts the Papacy of the Roman Catholic Church, and the United States of America in the context of gun-control law, would through the United Nations impose a one world government through the Papacy. Mr Shortis sends a message to USA gun owners not to form a militia in an attempt to overthrow the USA Government. He argues such an attempt will fail in the face of American military might and, I gather more importantly, should the militia succeed the one world government will not be created, which must be created before Christ returns.

28. He describes weapons as tools that have provided liberty against tyrants and anticipates using his weapon for self-defence when, after the enforcement of tyranny begins, he has fled to the wilderness (drawing an analogy with the Bible speaking of fleeing to the hills of Judea). He claims governments have set up national parks in order to prevent people being able to flee into the wilderness.
29. In the video, Mr Shortis is seen standing in a small study at his home. He uses one of his long arm firearms as a prop as he seeks to assure his viewers that he is the gun owner and on their side. Behind him are some cartridges, which he gave evidence were simply props and not live.
30. Mr Shortis’ video, ‘Uncovering Islam’ shows him sitting in his study putting forward his opinion that Islam is not a religion of peace by quoting from the Quran and providing commentary. To an extent his views and commentary may be heard from some in mainstream media. However, one does not see in mainstream media his comments that Islam will not be defeated by negotiation, that ‘We’ll end up fighting them one way or another, but we should be doing it with absolute brutality’, drawing comparisons with nuclear weapons in Japan and wiping out the German army in World War II. He says:

Our freedom is under threat. So I asked all you listeners. Will you ignore the evidence? Will you continue to have your head up your arse? Or will you take heed?

31. Mr Shortis’ video ‘Is Islam a Religion of Peace?’ again shows him sitting in his study putting forward his opinion that Islam is not a religion of peace by quoting from the Quran and providing commentary. Again, to an extent his views and commentary may be heard from some in mainstream media. However, he goes on to say he is angry and ‘pissed off’, that the West has been at war with Islam for nearly 1400 years and gives the message the war continues and tells Muslims to stop lying and repent.
32. In his video ‘5 Best Survivalist Pistol Calibres’ Mr Shortis describes the weapons he and his partner would take into the bush in a ‘shit hits the fan scenario’, which he says is a ‘when not if prospect’.
33. Mr Shortis gave oral evidence before me and provided a few references from those who supported his position and gave evidence about his responsible conduct as a member of his gun club.
34. He presented before me as a polite, intelligent, articulate man, who expressed views with force but not inappropriately, with a very good knowledge of his subject in terms of his understanding of historical events and dates.
35. He described the guns he owned for hunting and target practice.
36. He confirmed his beliefs concerning a coming one world government and why a militia should not rise against the USA Government. He spoke at significant length and in detail concerning his understanding of the relevant history stretching back through the centuries. In his view the world is currently in ‘end times’, experiencing social upheaval and moral decay. He noted that the videos presented in this proceeding were a small part of his ‘activism’. He said the videos should be seen in the context of 20 or so other published videos concerning theology.
37. Mr Shortis claimed that his USA Bible Prophecy video was seen by approximately 600 people before he deleted from his website. Therefore in practical terms, it had little impact on the community.
38. He claimed when he spoke of fleeing to the wilderness with his firearms, he was speaking of a time that he hoped he would never see — an Armageddon when law and order had broken down, society was in crisis and firearms legislation and decisions of chief commissioners of police would have no authority. That Armageddon will look something like Europe toward the end of World War II. Therefore, there was no basis to conclude he had any plan at this time or in the foreseeable future to retreat into the wilderness with his firearms.
39. He described the beginnings of his political activism when he attended the Reclaim Australia Rally in April 2015, his short involvement with Rise-Up Australia Party, with the United Patriots Front and in July 2016 joining the political party, Australia First, and his ambitions to run for the Australian Senate.
40. He claimed he seeks to address issues through political change, not violence, a response to, in his view, a risk of an increase in the Muslim population in Australia to the point where Australia will experience terrorism, as Europe now experiences. He described the Bendigo action as a political stunt to highlight this concern in a regional city which may well experience an increase in its Muslim population.
41. Mr Shortis described himself as having respect for the rule of law under the Australian Constitution, with the law of the land inspired by Christianity.
42. He spoke of finding it very disturbing to have his conduct compared with the conduct of Anders Brevik and to be characterised as some sort of ‘Christian nutter’.
43. While I considered all the evidence before me, I have not included all that evidence in these reasons. It is not appropriate to provide publicity for Mr Shortis’ views beyond that necessary to explain this decision.

Discussion

44. I accept Mr Shortis has no criminal history relevant to this proceeding, has held firearms licences for years without incident, has been a responsible member of his local club, has stored his firearms responsibly and has used firearms only for hunting and target shooting and has become active in political matters.
45. The evidence before me provides no basis to, and I do not, draw any parallels between him and Anders Brevik.
46. However, I conclude Mr Shortis is no longer a fit and proper person to hold firearms licences. He has forfeited the privilege under the Act to hold such licences.
47. He has no need for licences for primary production, occupational or official or prescribed purposes.
48. Based on the videos he published, and media coverage which it is reasonable to assume Mr Shortis has attracted to him by his actions, reasonable members of the community may fear what will happen if Mr Shortis, equipped with firearms, decides to flee to the wilderness believing he needed to act in self-defence or decided it had reached the point where the Muslim community must be responded to with ‘absolute brutality’, in his words.
49. Concerning the possibility that Mr Short may use firearms in self-defence, noting he says he would only consider such in a ‘end of times’ scenario, self-defence is not under the Act are permissible reason to obtain a firearms licence.
50. In the words of the High Court in Bond, concerning whether or not a person is a fit and proper person, his conduct and resulting reputation is sufficient to cause the community to lack confidence that he would use firearms appropriately.
51. Reasonable members of the community may also lose confidence in the firearms licensing regime if a person with Mr Shortis’ extreme views is able to retain firearms licences.
52. Also, Mr Shortis, in his intemperate publications predicting what he seems to see as inevitable conflict to be responded to with ‘absolute brutality’, even if he did not intend it, has conducted himself in such a way that he risks inciting members of an unknown audience on the Internet and/or encouraging violence by members of that audience.. This is in the context that he has presented himself on the Internet as a gun owner, he has published his views that he and others are at war with Islam and that viewers should prepare for that conflict. That is not the conduct of a person who is fit and proper to hold firearms licences.
53. I turn to Mr Shortis’ oral evidence at hearing. Given his published views and his willingness to engage in conduct such as the ‘Bendigo manikin beheading’, I have not accepted his milder articulate presentation before me as sufficient to allay the concerns his publications and activity cause. I am not confident I met the ‘real’ Mr Shortis. The references he provided were not sufficient to reassure me on this point.

54. I rejected Mr Shortis’ submission that him not being licensed to hold firearms breaches his right under the Australian Constitution to express opinions on political and governmental matters. Whether or not he holds such licences can have no impact on his ability to express his opinions.^[6]
55. Similarly, the Charter of Human Rights and Responsibilities Act 2006 (Vic) does not alter the outcome. Most relevantly, Mr Shortis’ rights to freedom of political expression (s 15) and to take part in public life (s 18) are not impinged by him not holding firearms licences. To the extent that the Act impinges on any other right Mr Shortis holds under the Charter, the Act reasonably limits those rights (see s 7 of the Charter), as it ensures the safety of the community with respect to firearms ownership and licensing.

Decision

56. The decision of the Committee dated 9 August 2016 is set aside.
57. Standing in the shoes of the Committee, exercising its review function,^[7] the decision of the delegate of the Chief Commissioner of Police, dated 16 February 2016, under s 49(1)(f) of the Act is affirmed.
58. Mr Shortis’ firearms licences, previously held under the Act, are once again cancelled on the basis that he is no longer a fit and proper person to hold such licences.

Ian Proctor

Senior Member

^[1] Firearms Act 1996 (Vic), s 1.

^[2] [1990] HCA 33; (1990) 170 CLR 321, 348 (Mason CJ).

^[3] Ibid, 380 (Toohey and Gaudron JJ).

^[4] Statutory declaration by Mr Cipillone dated 24 October 2016.

^[5] On my suggestion to Mr Shortis as a self-represented party.

^[6] See Tajjour v New South Wales; Hawthorne v New South Wales; Forster v New South Wales [2014] HCA 35.

^[7] s 154 of the Act.