Anick and Commissioner Of Police
[2008] WASAT 173
•4 AUGUST 2008
ANICK and COMMISSIONER OF POLICE [2008] WASAT 173
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 173 | |
| FIREARMS ACT 1973 (WA) | |||
| Case No: | CC:1855/2007 | 31 JULY 2008 | |
| Coram: | JUSTICE M L BARKER (PRESIDENT) | 4/08/08 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed Decision of Commissioner to revoke firearm licence affirmed | ||
| B | |||
| PDF Version |
| Parties: | JOHN CHRISTOPHER ANICK COMMISSIONER OF POLICE |
Catchwords: | Firearms Firearms Act 1973 (WA) Whether genuine need established Firearms Regulations 1974 (WA) Exclusion of purpose of 'destroying stock or vermin' as genuine need Whether shooting stock in emergency situation amounts to destroying stock or vermin |
Legislation: | Firearms Act 1973 (WA), s 11A, s 11B, s 22(2) Firearms Regulations 1974 (WA), reg 6A, Sch 3 |
Case References: | Berry-Porter and Commissioner of Police [2007] WASAT 212 |
Orders | 1. The review application of the applicant is dismissed.,2. The decision of the Commissioner to revoke the firearm licence of the applicant for a Smith & Wesson .357 calibre revolver handgun, serial no ACD 3959, by letter served on 1 November 2007 is affirmed. |
Summary | The applicant was the owner and manager of a pastoral station. In November 2007 the Commissioner of Police notified the applicant that his handgun licence had been revoked as he no longer qualified for the handgun under the genuine need test set out in the Firearms Regulations 1974 (WA).,The applicant sought review of that decision.,The Commissioner accepted that the applicant required the handgun to destroy stock or vermin, but argued that pursuant to Sch 3, Category H, subparagraph (2) of the Firearms Regulations 1974, a person does not have a genuine need to acquire or possess a Category H firearm if it is required for destroying stock or vermin.,The applicant contended that he required the handgun because emergency situations arise in the course of operating a pastoral business whereby he needs to defend himself from dangerous stock, and that the discharge of a handgun in those circumstances is in self defence and not for destroying stock.,The Tribunal found that the fact the destruction of stock might happen in an emergency situation does not alter the fact the need to acquire a firearm in such circumstances is to destroy stock.,Accordingly, the Tribunal held the Commissioner was correct in revoking the applicant's licence to hold the firearm and dismissed the review application.,The Tribunal noted that if the government wished to permit pastoralists to have the right to use handguns it could amend the Firearms Regulations 1974. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : FIREARMS ACT 1973 (WA) CITATION : ANICK and COMMISSIONER OF POLICE [2008] WASAT 173 MEMBER : JUSTICE M L BARKER (PRESIDENT) HEARD : 31 JULY 2008 DELIVERED : 4 AUGUST 2008 FILE NO/S : CC 1855 of 2007 BETWEEN : JOHN CHRISTOPHER ANICK
- Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Firearms - Firearms Act 1973 (WA) - Whether genuine need established - Firearms Regulations 1974 (WA) - Exclusion of purpose of 'destroying stock or vermin' as genuine need - Whether shooting stock in emergency situation amounts to destroying stock or vermin
Legislation:
Firearms Act 1973 (WA), s 11A, s 11B, s 22(2)
Firearms Regulations 1974 (WA), reg 6A, Sch 3
(Page 2)
Result:
Application dismissed
Decision of Commissioner to revoke firearm licence affirmed
Category: B
Representation:
Counsel:
Applicant : Mr A Skerritt
Respondent : Mr GTW Tannin SC and CP Wayte
Solicitors:
Applicant : Mr A Skerritt
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Berry-Porter and Commissioner of Police [2007] WASAT 212
(Page 3)
Summary of Tribunal's decision
1 The applicant was the owner and manager of a pastoral station. In November 2007 the Commissioner of Police notified the applicant that his handgun licence had been revoked as he no longer qualified for the handgun under the genuine need test set out in the Firearms Regulations 1974 (WA).
2 The applicant sought review of that decision.
3 The Commissioner accepted that the applicant required the handgun to destroy stock or vermin, but argued that pursuant to Sch 3, Category H, subparagraph (2) of the Firearms Regulations 1974, a person does not have a genuine need to acquire or possess a Category H firearm if it is required for destroying stock or vermin.
4 The applicant contended that he required the handgun because emergency situations arise in the course of operating a pastoral business whereby he needs to defend himself from dangerous stock, and that the discharge of a handgun in those circumstances is in self defence and not for destroying stock.
5 The Tribunal found that the fact the destruction of stock might happen in an emergency situation does not alter the fact the need to acquire a firearm in such circumstances is to destroy stock.
6 Accordingly, the Tribunal held the Commissioner was correct in revoking the applicant's licence to hold the firearm and dismissed the review application.
7 The Tribunal noted that if the government wished to permit pastoralists to have the right to use handguns it could amend the Firearms Regulations 1974.
Issues
8 The main issues for determination in these proceedings are:
• Is the effect of Sch 3, Category H, subparagraph (2) of the Firearms Regulations 1974 (Firearms Regulations) made under the Firearms Act 1973 (WA) (Firearms Act) such that the applicant is not entitled to have a licence for a handgun?
(Page 4)
- • If Sch 3 Category H, subparagraph (2) is not relevant in this case, has the applicant demonstrated that some other firearm, apart from a handgun, being a Category A, B or C firearm would be inadequate or unsuitable for the purpose required?
Facts
9 The Firearms Act prescribes circumstances in which persons may be given an approval permit or licence by the Commissioner of Police to hold a firearm in Western Australia.
10 Amongst a number of control provisions, s 11A of the Firearms Act provides that a genuine reason must exist in all cases before an approval for a licence is granted. Section 11A(1) of the Firearms Act provides as follows:
An approval or permit cannot be granted, and a licence cannot be issued, under this Act to a person who, in the Commissioner’s opinion, has not been shown to have a genuine reason for acquiring or possessing the firearm or ammunition for which the approval, permit, or licence is sought.
11 Relevantly in this case, s 11A(2)(d) provides that a person has a genuine reason for acquiring or possessing a firearm or ammunition if and only if:
(d) it is required by the person in the course of the person's occupation.
12 Section 11B(1) provides that regulations may provide that, for prescribed categories of firearms or ammunition, an approval or permit cannot be granted, and a licence cannot be issued, unless the Commissioner is satisfied that the person has a genuine need to acquire or possess a firearm or ammunition of that category. By s 11B(2), these regulations may make provision as to the circumstances in which a person can or cannot be considered to have a genuine need to acquire or possess a firearm or ammunition of a particular category.
13 The Firearms Regulations, by reg 6A prescribe categories of firearms by reference to Sch 3 of the Firearms Regulations. Regulation 6A(2) provides as follows:
If Schedule 3 specifies a genuine need test for a particular category of firearms -
(a) an approval or permit cannot be granted and a licence cannot be issued to a person unless the Commissioner is satisfied that the
- person has a genuine need to acquire or possess a firearm of that category; and
- (b) a person cannot be considered to have a genuine need to acquire or possess a firearm of that category unless the test specified in Schedule 3 is satisfied.
14 Regulation 6A(3) provides as follows:
The genuine need test specified in Schedule 3 for a firearm of category D prevents an approval or permit from being granted, or a licence from being issued, for the purposes of a firearm of that category forming part of a genuine firearm collection but a genuine need test specified for any other category of firearm does not prevent the Commissioner from being satisfied that a person has a genuine need to acquire or possess a firearm of that other category for the purposes of the firearm forming part of a genuine firearm collection.
15 Regulation 6A(4) provides as follows:
If, for a particular category of firearms, Schedule 3 specifies any restriction on the grant of an approval or permit or the issue of a licence, an approval or permit cannot be granted and a licence cannot be issued except in accordance with that restriction.
16 Schedule 3 specifically prescribes the category of a 'handgun (including an air pistol)' as a Category H firearm.
17 Schedule 3 in respect of Category H specifies the genuine need test of Category H in the following terms:
(1) The applicant is required to satisfy the Commissioner that a firearm of category A, B or C would be inadequate or unsuitable for the purpose for which the firearm is required.
(2) A person does not have a genuine need to acquire or possess a firearm of category H because it is required for -
(a) hunting;
(b) recreational shooting, other than by a person described in paragraph (a) under the heading "Restrictions for category H", and for a purpose described in that paragraph; or
(c) destroying stock or vermin.
19 The Sch 3 categories of the Firearms Regulations were brought into operation on 6 December 1996.
(Page 6)
20 As a result of an ongoing audit by the Firearms Inquiry Unit of the Western Australian Police in relation to possession and use of restricted firearms affected by the Sch 3 requirements, a letter was sent to the applicant on 13 August 2007 requiring him to show cause why his existing firearm licence for a Smith & Wesson .357 calibre revolver handgun, serial no ACD 3959, should not be revoked in line with the legislative changes.
21 Subsequently, on 1 November 2007, the delegate of the Commissioner gave written notice to the applicant of the decision and reasons for decision to revoke approval of this handgun licence.
22 At material times, the applicant was the owner and manager of Weelarrana Station, Newman in regional Western Australia. The letter of the delegate of the Commissioner to the applicant advised the decision to revoke the handgun licence in the following terms:
You no longer qualify under Firearms Act or [Firearms] Regulations to have a genuine need for a category H firearm.
It may be argued under s 11A(d):
"It is required by the person in the course of the person's occupation," as the handgun is being used in your occupation as a Primary Producer.
It is my opinion that this is a consideration, However as your "occupation" is one which involves destroying stock or vermin, it is not a valid reason for acquiring or retaining a category H firearm.
The reason being, in Schedule 3 of the Firearms Regulations 1974, under the heading "Genuine needs test for category H"
(2) A person does not have a genuine need to acquire or possess a firearm of category H because it is required for -
(c) destroying stock or vermin.
The first issue: whether the Category H firearm is required for destroying stock
24 Both the applicant and the Commissioner accepted, in the argument of their legal counsel, that the primary issue of law in this case boiled down to the proper application of the genuine need test for a Category H firearm as specified in reg 6A and Sch 3 of the Firearms Regulations.
(Page 7)
25 Both parties accepted that primarily, under s 11A(2)(d), a person has a genuine reason for acquiring or possessing a firearm if it is required by the person in the course of the person's occupation.
26 In this case, it is generally accepted that the applicant wanted to hold the Smith & Wesson handgun for use in the applicant's occupation as a pastoral station owner.
27 Both parties also agreed that under s 11B, regulations may be made prescribing categories and affecting thereby the application of the genuine need criteria specified by s 11A.
28 The real point of contention between the parties was whether or not the reason the applicant wanted to retain the handgun in question was affected by the genuine need test for a Category H firearm as set out in Sch 3.
29 As noted earlier, under the genuine need test for a Category H firearm, as set out in (2), a person does not have a genuine need to acquire or possess a firearm of Category H because it is required, amongst other things, for '(c) destroying stock or vermin.'
30 On the one hand, the applicant says that he requires the handgun because certain extraordinary or emergency or other convenient situations arise in the course of operating his pastoral business whereby he may need, in effect, to defend himself against dangerous stock - for example, a rampaging wild bull. The applicant says that if he were to discharge a handgun in these circumstances, in order to wound or destroy such stock, his conduct in doing so should be seen as 'self-defence', not 'destroying stock'. For this reason, the applicant says that he is not a person who desires to possess a firearm 'because it is required for destroying stock or vermin'.
31 On the other hand, the Commissioner contends that regardless of the particular circumstances in which the applicant might propose to discharge the firearm in the emergency and other circumstances described by the applicant, the need so expressed to acquire or possess the handgun remains 'because it is required for destroying stock or vermin'.
32 In my opinion, on the ordinary interpretation of the words used, the need to acquire or possess a firearm in order to use it in the sort of emergency or other circumstances described by the applicant in these proceedings, constitutes the need to acquire or possess the firearm 'because it is required for destroying stock or vermin'.
(Page 8)
33 The fact that the destruction of stock or vermin might happen in an emergency situation, for example, does not make the need to acquire the firearm any less the need to acquire or possess the firearm 'because it is required to destroy stock or vermin'.
34 There is nothing in the genuine need test for Category H which suggests that the reason the need to destroy stock or vermin arises governs the application of this test. In other words, it matters not if the firearm is intended to be used in emergency situations or for primary industry management reasons. The issue is whether the need to acquire it is to destroy stock or vermin.
35 The simple fact is that the applicant says he has a genuine need to acquire or possess a handgun because it is required for destroying stock or vermin - in an emergency situation.
36 A similar conclusion to this was reached by Member Ms J Hawkins in BerryPorter and Commissioner of Police [2007] WASAT 212. The Member, having referred to the relevant regulations, noted that those specifically state that a person does not have a genuine need for a handgun if it is required for destroying vermin. In that case, the applicant, who was a dogger, required a handgun for this purpose. Ms Hawkins explained at [47]:
The ultimate use to which Mr Berry-Porter will put a handgun, whether directly or in protecting himself, is to dispatch wild or feral dogs that are vermin. This is unfortunately a specific purpose that has been excluded under the Regulations, as a genuine need, for a handgun. Although the Tribunal accepts that Mr Berry-Porter's work as a dogger may be made easier if he was licensed to use a handgun, the Tribunal is constrained by the provisions of the Act and Regulations in this case. For the reasons set out above, the Tribunal does not consider Mr Berry-Porter has established a genuine need for a handgun licence.
37 For this reason, the Tribunal holds that the handgun of the applicant in question does fall within Category H and that, having regard to the genuine need test for Category H specified in Sch 3, the applicant does not have a genuine need to hold such a firearm, as required by s 11A(1) of the Firearms Act.
38 It follows that it is not open to the Commissioner or the Tribunal on review to support the retention by the applicant of this firearm. Accordingly, the Commissioner was correct to move to revoke the applicant's licence to hold this firearm.
(Page 9)
The second issue: whether the applicant has in any event demonstrated that a Category A, B or C firearm would be inadequate or unsuitable as a substitute for the Category H firearm
39 In light of the finding concerning the proper interpretation and application of Category H of Sch 3 of the Firearms Regulations, there is no need to make any findings in relation to this issue.
40 This issue arises only in the event that subparagraph (2) of the genuine need test for Category H does not apply.
41 If a person is not affected by subparagraph (2) of the genuine need test for Category H, subparagraph (1) of that test then arises.
42 As noted earlier, subparagraph (1) of the test is in the following terms:
The applicant is required to satisfy the Commissioner that a firearm of category A, B or C would be inadequate or unsuitable for the purpose for which the firearm is required.
43 The Category A, B and C firearms include a variety of rifles and shotguns - long arms.
44 The evidence given on behalf of the Commissioner, particularly by Senior Constable Harrison in these proceedings, suggests that long arms are, generally speaking, a better option for dealing with the destruction of stock or vermin in a primary industry setting because of their efficiency, safety and general reliability. The applicant contests this view. In the circumstances, because of the Tribunal's ruling on issue 1, the Tribunal need not make any findings in relation to this further issue in this case.
45 However, the comment should be made that the government of Western Australia, following national action in relation to the desire of most Australians to limit the use of firearms, including handguns, introduced Category H into the Firearms Regulations. If it is thought that persons on pastoral properties, farms or in other relevant occupations should be able to carry handguns in order to destroy stock or vermin, or be able to use handguns in particular circumstances for destroying stock or vermin, then it would be open to the government to change the Firearms Regulations.
(Page 10)
Conclusion and order
46 For the reasons given earlier, the Tribunal is satisfied that it is appropriate for the delegate of the Commissioner to revoke the handgun licence of the applicant.
47 The Tribunal orders:
1. The review application of the applicant is dismissed.
2. The decision of the Commissioner to revoke the firearm licence of the applicant for a Smith & Wesson .357 calibre revolver handgun, serial no ACD 3959, by letter served on 1 November 2007 is affirmed.
I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE M L BARKER, PRESIDENT