Niski, Marcus --- "Gun control madness?" [1994] PrivLawPRpr 75; (1994) 1(5) Privacy Law & Policy Reporter 95

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Gun control madness?

NSW Cabinet Office and NSW Police Service - Discussion Paper on Mental Illness and Firearms Abuse, 1993

In the wake of a mass shooting incident which occurred in the Sydney suburb of Strathfield, the NSW Parliament established a Joint Select Committee on Gun Law Reform on 12 September 1991. The gunman, Wade John Frankum, a 33 year old man with no former convictions, had stabbed one person to death, killed six more people, wounded several others and then turned the gun on himself.

It was against the background of these disturbing events that the Select Committee undertook a review of existing firearms licensing procedures (within the Firearms Act 1989) and other issues surrounding gun ownership and control in New South Wales.

In its report the Committee made recommendations relating to a number of areas including domestic violence, licensing, firearm prohibition and mental illness and firearms misuse. Among its recommendations with respect to mental illness and firearms misuse the Committee proposed that:

2.1 The government should develop procedures, having regard to privacy issues, for the voluntary reporting to police by any of those who would be likely to be dangerous to themselves and/or others if they have access, or continue to have access, to firearms.

2.2 The NSW Police Service [should] introduce a formal system to follow up voluntary reports... and following an investigation, if the person possessesfirearms, remove the firearms pursuant to s35 of the Firearms Act 1989.

2.3 Persons acting in good faith in making voluntary reports referred to in 2.1 shall [sic] be indemnified against any action which may be brought against them.

While the NSW government implemented the majority of the Committee's proposals within its Firearms Legislation (Amendment) Act 1992, the Committee's recommendations with respect to mental illness and firearms misuse were not enacted within the amended legislation.

Following the commencement of the Firearms Legislation (Amendment) Act 1992, the then Premier (Hon Nick Greiner, MP) requested a further examination of these recommendations by the relevant departments. Comments were sought from a wide range of health and community organisations with a view to establishing how a responsible voluntary reporting scheme might be introduced.

In line with the former Premier's request, the Cabinet Office and the NSW Police Service have produced a discussion paper on mental illness and firearms misuse. Having closely examined the range of health and community submissions, as well as legislation operating in NSW and the other States and Territories, the discussion paper supports the establishment of a voluntary reporting scheme for firearms as put forward by the Select Committee. According to the paper, such a system of voluntary reports could be modelled along similar lines to that of the Roads and Traffic Authority (RTA) system for following up reports on persons allegedly medically unfit to continue to hold a driver's licence.

Under the RTA system (amongst other provisions as set out in the Traffic Act and Motor Traffic Regulations), when a report is made to the RTA that a person is allegedly unfit to hold a driver's licence, the RTA sends the reported person a letter with an enclosed medical report form and the person's licence is temporarily suspended. The medical report form must then be completed by the person's examining doctor and returned to the RTA's medical officer. The medical report form is then reviewed by RTA's medical officer and, together with any other relevant information, the medical officer makes a decision as to the person's suitability to drive a vehicle. The medical officer may decide on the basis of the report, and any other relevant information, that a person is permanently unfit to drive; not medically fit at present; or medically fit pending further inquiries. If the person is not medically fit to drive at present, the onus is on that person to prove his or her fitness to drive if he or she wishes to regain a licence. Although reports may be made by any member of the community, indemnity is only granted to medical practitioners.

The paper envisages a similar reporting scheme based on reports supplied by any person who reasonably believes that a person is likely to pose a risk to either themselves or to the community in the event that they gain access to, or continue to have access to firearms. As part of the safeguards to voluntary reporting, the discussion paper recommends that civil and criminal indemnity be granted to medical and health care practitioners, '' but that indemnity not be granted to other members of the public making voluntary reports'.

While the paper outlines the basic framework for a firearms reporting scheme, a number of important questions surrounding the ''mechanics' for the scheme require further critical examination and comment. Issues surrounding the quality and veracity of information obtained through voluntary reports; the storage and security of information being collected; the question of ''about to apply' reports and the duplication of existing firearms licensing procedures must be properly addressed if the scheme is to operate along just, rational and effective lines.

Perhaps the greatest threat to the viability of the scheme however, remains the fact that ''...those who are "mentally ill" (in the psychotic sense) are unlikely to be over-represented [as misusers of firearms]' (Professor Gordon Parker, quoted in discussion paper, at 12). Accordingly, if a voluntary reporting scheme for firearms is to go ahead, the onus should clearly rest with the government to show the scheme is not only capable of delivering effective community protection without compromising civil liberties, but that it will correctly identify those who are most at risk of causing harm to themselves and/or others through firearms misuse.

Although the majority of community members seem to support the implementation of stronger gun control measures, the firearms reporting proposal (at least in its present form) appears likely to create unjustifiable invasions of privacy without any clear gains in terms of community safety or protection. The end product of such a scheme may well be the increased use of surveillance amongst an already stigmatised group without any real or corresponding progress in our ability to properly identify those who are actually or potentially ''dangerous.

Postscript

The NSW Police Service received a small number of public responses. Copies of the Discussion Paper may be obtained from the Ministry for Police and Emergency Services, Level 19, Avery Building, 14-24 College St, Darlinghurst 2010. Following further departmental consultation, a submission will be made to the Minister for Police and Emergency Services outlining alternative strategies

Marcus Niski, formerly Research Officer, NSW Privacy Committee