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Legislative Assembly for the ACT: 2018 Week 09 Hansard (Thursday, 23 August 2018) . . Page.. 3612 ..

(2) Have there been any court or tribunal rulings on the validity of the ACT Government or AFP Registrar demanding these mental health checks; if so, how do they impact the issuing of firearms licences.

Mr Gentleman: The answer to the member’s question is as follows:

(1) The Firearms Act 1996 (ACT) (Firearms Act) establishes the licensing and registration scheme for all firearms possessed or used in the ACT. Part 7 of the Firearms Act provides the regulatory framework governing the issue of firearms licences. The ACT Policing Firearms Registry is responsible for the delivery of regulatory and licensing functions in accordance with the Firearms Act.

The general authorisation mechanism for licensing and registration is broadly a two-step process under the Firearms Act. First, a person must obtain a firearms licence (either Category A, Category B, Category C, Category D, Category H, collector, heirlooms, dealers or paintball markers), and second, a licensee must obtain a permit to acquire a firearm.

In assessing an application made by a person under the Firearms Act, the Registrar of Firearms (Registrar) must consider any discretionary criteria under section 18 that apply to the individual, which includes whether the Registrar believes on reasonable grounds that, because of the individual’s mental health, the individual may not handle firearms responsibly.

Under Part 7 of the Firearms Act the Registrar may give the applicant written notice requiring the applicant to give the Registrar stated further information or documents that the Registrar reasonably needs to decide an application. If the Registrar believes on reasonable grounds that the applicant’s mental health may affect the applicant’s ability to handle firearms responsibly, this may include the Registrar asking the applicant to consent to the disclosure of personal health information about the applicant from a health record (for an adult pursuant to section 56; for a child pursuant to section 86; and for a composite entity licence pursuant to section 102). The Registrar may refuse to consider an application further if the requested information is not provided, but failure to consent to the disclosure to the Registrar of personal health information, alone, does not allow the Registrar to refuse to consider the application.

(2) As there is no power for the Registrar to demand mental health assessments under the Firearms Act, the question of whether any Court or Tribunal decisions have been made about the validity to demand any such assessments does not arise. Relevantly, in P v Registrar of Firearms (Administrative Review) [2018] ACAT 20, the ACT Civil and Administrative Tribunal considered whether section 56 of the Firearms Act extends to allowing the Registrar, and the Tribunal, to require an applicant to undergo a mental health assessment. The Tribunal observed that there is no explicit indication in that provision that the power extends to requiring the applicant to create new information or new documents, in particular by undergoing a mental health examination which results in a report. Having regard to the text of section 56, context and purpose of the provisions in the Firearms Act, the terms of the Mental Health Act 2015, the principle of legality, and provisions in the Human Rights Act 2004, the Tribunal concluded that section 56 does not extend to require a person to undergo a mental health assessment without their consent.

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