Court Overturns Tribunal Decision to Remove Firearms Licence from Domestic Violence Order Subject

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In Singh -v- The Registrar of Firearms the Supreme Court has examined an apparent inconsistency between powers granted to Magistrates under the Domestic Violence and Protection Orders Act and the powers of the Registrar of Firearms to strip a Firearms Licence from someone who is the subject of a DVPO final order.

Background

Firstly let me cover myself by saying that Domestic Violence and Personal Protection Orders are not criminal offences. There is no finding of guilt. They are civil proceedings without the usual evidential burdens and there are numerous reasons they can be made. They do deal with some heavy stuff but frequently they are ludicrously overblown and often parties don’t fight them because the undertakings are mutual such as both parties agreeing they want nothing to do with each other. My personal go-to story is the neighbour who felt personally threatened by a tree growing over the fence and both parties agreed to trim the tree and stay 10 metres away from each other and only communicate through their lawyers. This counts as my disclaimer by the way.

Now, down to business.

Following the 1996 Port Arthur massacre, there was a review of firearms laws all over Australian and in the already relatively gun-safe ACT it took the guise of amendments to the Firearms Act to prevent someone applying for a licence if, in the last 10 years, they had been the subject of a gun control order. Under s57 of the DVPO act once a final order is made by a Magistrate, the subject’s Firearms Licence is automatically cancelled unless the Magistrate otherwise orders. s81 of the Firearms Act the Registrar of Firearms is able to cancel a licence under a number of pre-conditions including if the licensee is not suitable satisfied on reasonable grounds. Being the subject of a Domestic Violence Protection Order is arguably a reasonable ground to lose your firearms licence…but thats the entire point…arguably.

In Singh the Appellant had a final order made against him by the Magistrate who elected to grant an application to not strip the applicant of his licence. However, following the making of the final order the Registrar of Firearms, who is the ACT Deputy Chief Police Officer (Crime), Commander David Price, exercised his discretion to take away the licence of the Appellant.

Appeal Points

On appeal the Appellant raised dual issues of an absurd/unreasonable construction of the acts and an inconsistency in the reading of the acts.

On the point of absurd/unreasonable reading the Court found that there may be a “tension” between the acts but was able to rely on (the gift that keeps on giving) Eastman [2010] ACTCA 15 at [88]:

…the word “absurd”…mean[s] “(o)ut of harmony with reason or propriety; incongruous, inappropriate; unreasonable; ridiculous, silly”. The word “unreasonable” means “(n)ot endowed with reason; irrational … . Not based on or acting in accordance with reason or good sense”.

Neither Act can be described as such. Neither Act is internally absurd or unreasonable; any absurdity or unreasonableness arises from the tension between the Acts.

The Court found essentially that there was no absurd or unreasonable construction in the drafting of the acts. Under the Legislation Act, specifically ss138-140, an act must be interpreted by reading the act as a whole and preferring the interpretation which gives effect to the act.

Inconsistency

The Appellant raised the second point of the decision being inconsistent on the difference between a power specifically given to the Registrar versus the apparent guidance provided by the Magistrate.

On the point of inconsistency the court examined a number of authorities including the hansard from the passage of the bill from Mr Bill Stefaniak, then opposing the bill, who now sits on the ACAT, from which the appeal was based, stated:

I am aware that there are firearms enthusiasts who feel that the provisions [the precursor suitability provisions] are too stringent and could result in people having their weapons taken off them, for reasons that are not logically connected with their holding a firearms licence. I have some sympathy with these concerns. By way of hypothetical example, it seems unfair that someone who is a target pistol enthusiast and who perhaps stores their guns in an armoury at a firing range should automatically lose their licence if they had 10 years ago been subjected to an interim protection order and recently had their drivers licence suspended. But that is the automatic effect of [the precursor section].(Australian Capital Territory, Hansard, Legislative Assembly, 3 July 2008, 2754 (Dr Deb Foskey).

The Court’s conclusion of inconsistency included a few biting comments about the operations of the act and the need for the legislature to remedy the inconsistency:

52. Finally, it would be an unusual outcome if the considered decision of a judicial officer is to be rendered otiose by the virtually simultaneous mandatory action of an administrator.53. There is no relevant area in which the provisions can operate consistently. The Tribunal found (at [54]) that the relevant provisions of the DVPO Act were enacted after the relevant provisions of the Firearms Act. That finding was not challenged on the appeal. Therefore, there are strong grounds to conclude that the power granted to the Magistrates Court to make a non-cancellation order in specific cases was intended to repeal the mandatory but general cancellation effected by the Firearms Act.54. I accept that implied repeal leads to odd results, including the result that a licence that is saved by a non-cancellation order cannot be renewed because a renewal is treated as a new licence application and refusal of a new licence is mandatory under the Firearms Act.55. I support the recommendation of the Tribunal at [61] that “…legislative action [should] be taken to clarify the relationship between the DVPO Act and the Firearms Act where a PPO is made against the holder of a firearms licence.”

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Queensland Rugby moves to Wind-Up Brisbane Roar [updated]

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In definitive proof that Rugby is the game for Lawyers, Queensland Rugby Union (QRU) have moved to have the A-League’s Brisbane Roar placed into Liquidation.

QRU has obtained the consent of a liquidator and the matter will be heard on the 19 August unless full payment is received by that date, from the Indonesian owners, the Bakrie Group. To reach the point of a winding-up Creditor’s Petition usually means that a Statutory Demand has gone unpaid. Once the 21 day period for the Statutory Demand lapses there is a presumption of insolvency which the Brisbane Roar must displace at the very least to avoid insolvency and liquidation.

The Roar apparently owes 12 months of rent over its use of Ballymore Stadium. This is on top of allegations of financial distress over unpaid dues to players and officials, and the financial plunge handed to them of late (latte?) by the dropping of major sponsor the Coffee Club.

Given the success of the Roar, now is probably a prime time for some ailing mining giant to step in, assume the debts and take the Bakrie Group up on their months long effort to offload the twice-champions.

[update] The winding up application has been dismissed after a settlement was apparently reached between the parties. The settlement is confidential but the inside word is that the Brisbane Roar’s financial woes are far from over with players and staff still awaiting payment.

Leak Reveals “Evilest Technology on Earth” Used by Australian Authorities

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Earlier this month a deluge of emails was uploaded to Wikileaks via, as always, an anonymous source. This leak is particularly noteworthy as the “victim” is one of the internets most notorious surveillance providers and proliferators of hacking technology. Gigabytes of emails and source code revealed an insight into one of the world’s shadiest organisations, unapologetically called, the Hacking Team and their clientele includes top Australian agencies.

Who are the Hacking Team?

The Hacking Team produce and facilitate the use of malware to exploit gaps in security and sell their wares to law enforcement and security agencies all over the world. Their services are billed as offensive security services meaning proactive monitoring and data collection. The Hacking Team’s specialty is zero-day flaws; finding flaws which companies have missed, or spent zero-days fixing. This is a much cheaper and efficient way of accessing devices as it is exploiting flaws the producer is unaware of as opposed to known weaknesses. A popular product they provide is Remote Control Systems which they describe as “A Stealth, Spyware-Based System for Attacking, Infecting and Monitoring Computers and Smartphones. Full intelligence on target users even for encrypted communications (Skype, PGP, secure web mail, etc.)”. RCS allows the infiltrator to completely clone a device and engage in live monitoring through hosting a live version of the device on a server.

The Hacking Team are based in Italy and were founded in 2003 and have offices in Milan, Washington DC and Singapore. They are a surprisingly lean operation with only a handful of employees operating under the philosophy that interesting data doesn’t make it to the internet, and stays on the device requiring stealth, untraceable access. They purchase the codes for the flaws and market their services to law enforcement and security agencies through a range of systems including some more outlandish ones such as developing the ability to hack systems from a wi-fi emitting drone.

The leaker could have made a tonne of money from the codes but instead uploaded it, indicating that it was probably someone looking to expose the activities of the organisation and the reach of their technology all over the world. The current theory is that it is an ex-employee was responsible prompting Italian prosecutors to begin an investigation.

“you say terrorist, I say freedom fighter, nothing matters lol.”

Gleamed from the leak was information about the company’s clients, revealing that The Hacking Team peddle powerful surveillance technology to some of the words most repressive regimes to an extent that would usually be enough to have a company awarded a seat at the SPECTRE table in a Bond flick.

Human Rights Watch describes Bahrain’s record on human rights as “Dismal” including a violent crackdown on democracy protestors in 2011…but they’re good enough for the Hacking Team.

The US State Department considers Mongolia major violators of human rights including police abuse of detainees, wide-spread corruption and a lack of transparency, particularly in the legislative and judicial branches….but they’re good enough for the Hacking Team.

Ethiopia just wanted to do their bit in the war on terror for the good of all man-kind. The only problem is that Ethiopia considers journalists to be terrorists...but they’re good enough for the Hacking Team.

On selling to Libya, the Hacking Team debated the ethics briefly. The CEO wrote “I’m skeptical, it’s a failed state, we can ask for authorization but I really don’t know if it is a blacklisted country.”

Perhaps most egregiously, the Hacking Team was forced to halt sales to Sudan after pressure from the UN over concerns that the sale appeared to violate a UN ban on selling weapons to the Government which extended to digital weapons.

The Hacking Team apparently wanted to make sure it hit all the number one tourist destinations including Egypt, Kazakhstan, Morocco, Russia, Saudi Arabia, Azerbaijan, Turkey.

“Imagine this: a leak on WikiLeaks showing YOU explaining the evilest technology on earth! :-)”

Boy, talk about foreshadowing.

Just for good measure the Hacking Team also sold its wares to several US agencies including the FBI, NSA and Department of Defence. As well as other powerhouses like Israeli law enforcement annnnddddd Australian law enforcement and private companies.

There’s no adequate narrative I can provide in this format to highlight the extent of the Australian involvement so let’s just resort to our old friend known as dotpoints:

  • Australian company Miltect sought their services for its clients including the Indonesian National Police, Bureau National Intelligence, Bureau National Narcotics and Military.
  • The Australian Federal Police canned them for not responding quickly enough to their urgent servicing enquiries prompting the Hacking Team to improve its service capabilities for Australian and Asian customers.
  • On behalf of the ADF Special Forces, security intelligence company Providence, which specialises in UAVs and Robotics sought the services of the Hacking Team.
  • Criterion Solutions from Kingston in Canberra desired their services claiming to hold amongst its clients “a number of government agencies”.
  • IBAC, the Victorian Independent Broad-Based Anti-Corruption Commission, used services they provided to seek to access private devices including enquiring about hosting Virtual Private Systems, used to run their own copy of a mirror operating system remotely. Mirror operating systems can provide live access to how any device is being used, key-stroke by key-stroke.

We even barely missed a couple of their reps in Canberra trawling for business at a security intelligence event at the QT hotel in May 2015.

So What’s the Big Deal?

Well frankly, I’m not sure there is a big deal. On the face of it this is a legal company selling its capabilities to law enforcement agencies and private providers. Government agencies constantly align with private companies to provide capabilities they are not able to provide themselves for whatever reason.

For me though, the issues this revelation raises are four-fold.

What capabilities does the Hacking Team have that Australian Government agencies don’t have that they need? Organisations like the AFP and IBAC can already access information held on private systems and phones through warrants. Presumably then the issue is a technological one. This implies that there is a shortfall in our technological capabilities that requires us to hire an Italian company to assist them in hacking private devices. Telecommunication companies complying with warrants are not usually able to provide access to exchanges that occur on secure web-based networks such as Viber, Facebook Messenger, Skype or even my pun-eriffic favourite Snapchat. Warrants have the power to provide this information but that doesn’t necessarily address the tech or practical shortfall, given that these companies are all based overseas. With all the legal power in the world, even more so thanks to the panicked legislative response to the Sydney siege, our agencies still apparently don’t have the capabilities without outsourcing. Whether this means that our agencies need more powers or more funding…or less is a conclusion I’ll leave to the reader.

Is there an inherent security risk? Once again, not necessarily. The Hacking Team supply capabilities to tens of law enforcement agencies and from the material leaked appear to have no interest in breaching their commitment to their clients. But the emails display a concerning amount of interest in providing services to 5-eyes nations; a reference to the powerful intelligence sharing agreement between Australia, Canada, the US, Great Britain and New Zealand.

Thirdly, I take issue with these capabilities being provided to private companies and not just law enforcement agencies. It is apparent from the emails that the Hacking Team have no qualms about servicing private companies. The obvious question here is why do private companies need access to the same capabilities as our govt agencies, even if they are claiming to on-sell these services. Our systems of law-enforcement apparently need to access intrusive “offensive intelligence gathering capabilities” via two degrees of private companies to be able to provide the defences we expect and require of them.

Lastly and for me the most important. Let me start with a story. Last year the ANU was forced by student action and the resulting negative public sentiment to divest itself of holdings in companies that negatively affected the environment such as coal and fracking companies. You know where I’m going with this. In the wake of the Snowden, Assange, Schwartz, Greenwald, Manning etc. why are taxpayer dollars supporting a company that supplies capabilities to such nefarious regimes…see above.

If my computer and phone are hacked as a result of this please forgive any late responses…ladies.

None of the companies mentioned were approached for comment and all of the information in this article is compiled from publicly and widely available information.