BERGMANN and COMMISSIONER OF POLICE - [2009] WASAT 233

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: FIREARMS ACT 1973 (WA)
STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA)

CITATION: BERGMANN and COMMISSIONER OF POLICE [2009] WASAT 233

MEMBER: DR B DE VILLIERS (MEMBER)

HEARD: 20 NOVEMBER 2009

DELIVERED : 25 NOVEMBER 2009

FILE NO/S: CC 1300 of 2009

BETWEEN: FERDINAND BERGMANN
Applicant
AND
COMMISSIONER OF POLICE
Respondent

Catchwords:

Firearm licence - Revocation of licence on grounds that it is not required for purposes of the applicant's occupation - Self-protection - Genuine reason Calibre reasonably justified - Applicant requires handgun to protect himself against sharks and crocodiles when he fishes barramundi in the swamps of Derby Public interest

Legislation:

Firearms Act 1973 (WA), s 11, s 11(1), s 11A, s 22, s 22(2)
Firearms Regulations 1974 (WA), Sch 3
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 27(3), s 29(1), s 29(3), s 29(5), s 32(2)(a), s 32(4)

Result:

The application for review of the decision to revoke the applicant's firearm licence is unsuccessful
The decision to revoke the licence is affirmed

Category: B

Representation:

Counsel:

Applicant: M C Syme
Respondent: Sgt S Bagley

Solicitors:

Applicant: Syme & Co Lawyers Pty Ltd
Respondent: Commissioner of Police

Case(s) referred to in decision(s):

Anick and Commissioner of Police [2008] WASAT 173
BerryPorter and Commissioner of Police [2007] WASAT 212
Re Brown; Ex parte Scudds, (1995) 14 WAR 270

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Bergmann applied for a review of the decision by the Commissioner of Police to revoke his .357 handgun licence on grounds that the licence is not required in the course of Mr Bergmann's occupation as a fisherman of barramundi.
Mr Bergmann is a commercial fisherman who catches barramundi in the river and swamps around Derby in the northern Kimberley. He says he needs the handgun to protect himself against attacks by crocodiles and to kill sharks that become entangled in his fishing nets. He has held a licence for this firearm since 1991 but it was recently revoked on grounds that he does not have a 'genuine reason' to continue to be licensed.
The Commissioner of Police contended that Mr Bergmann should not continue to be licensed to hold a handgun for three reasons: first, his reasoning that he requires a firearm for self-protection is explicitly excluded from the Firearms Act 1973 (WA) as a genuine reason to be licensed; secondly, he does not have a genuine need for the purposes of his occupation to carry such a weapon; and thirdly, the calibre handgun he applied for is not reasonably justified for the purpose for which he wants to use it.
The Tribunal found that the application for review should be dismissed on the three grounds raised by the Commissioner: firstly, that the Firearms Act 1973 (WA) precludes a person from being licensed for the purposes of selfprotection; secondly, Mr Bergmann has failed to demonstrate that, as a commercial fisherman of barramundi, he has a genuine reason to be licensed for the purposes of his occupation - there was insufficient evidence that in this occupation it was a standard practice or a required fit-out to be licensed in this manner - and thirdly, even if a permit were issued for crocodiles to be killed, the calibre he applied for is not reasonably justified for that purpose.
Flowing from the conclusion, orders were made for the decision of the Commissioner of Police to be affirmed and for the application to be dismissed.

Background

Mr Bergmann is a self-employed licensed fisherman who operates from Derby. He owns a 10 metre fishing boat and a 14 foot dinghy. He fishes with nets. He specialises in catching barramundi in river and swamp areas. He often traverses across mud flats to collect his catch or to access his boat. He supplies fish to local restaurants and also further afield. He contends that he requires a .357 handgun to fend off crocodiles and to kill sharks that become entangled in his nets.
Mr Bergmann was licensed in 1991 to hold a .357 revolver, subject to conditions that it was used only for the purposes of his occupation. He has held the revolver without any incident since the time he was licensed.
The Commissioner of Police recently conducted a review of handgun licences and informed Mr Bergmann on 23 April 2009 that the licence had been revoked.
The application for review of the decision was lodged on 26 August 2009. The application for review was lodged under s 22 of the Firearms Act1973 (WA) (Firearms Act). Section 22(2) of the Firearms Act enables a person aggrieved by a decision by or on behalf of the Commissioner to seek a review thereof.
The first directions hearing was held on 10 September 2009 but it was adjourned due to the non-attendance of Mr Bergmann. The second directions hearing was held on 24 September 2009 at which the matter was set down for a hearing on 20 November 2009. The parties were also ordered to file documents in support of their respective positions.
The Commissioner of Police filed its statement of issues, facts and contentions on 30 October 2009. Attached thereto was a bundle of documents. Mr Bergmann filed his statement of issues, facts and contentions on 12 November 2009. Attached thereto was also a bundle of documents.
The hearing took place on 20 November 2009. Mr Bergmann gave evidence via video link. The Tribunal took into account the statements and documents, as well as the evidence and submissions of the parties in coming to its decision.

Statutory framework

The Tribunal has, in accordance with s 29(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the same jurisdiction, functions and discretions as those of the delegated officer. The Tribunal is not limited to the statement of reasons or the submissions during the hearing given by the delegated officer: s 27(3) of the SAT Act. The Tribunal may also take into account any additional or new information that was not at the disposal of the delegated officer at the time when the decision was made: s 27(1) of the SAT Act.
The review hearing is de novo (s 27(1) of the SAT Act) and is not confined to the matters and information that were before the decisionmaker at the time of the decision.
The powers of the Tribunal, according to s 29(3) of the SAT Act, are to:
a)affirm the decision;
b)vary the decision; or
c)set aside the decision,
and to make appropriate orders.
The decision of the Tribunal is regarded as a decision of the delegated officer: s 29(5) of the SAT Act.
The key provisions of the Firearms Act dealing with the regulation of dealer licences are:
Long title of the Firearms Act:
An Act to make provision for the control and regulation of firearms and ammunition, the licensing of persons possessing, using, dealing with, or manufacturing firearms and ammunition ...
11. Exercise of Commissioner's discretion
(1)The Commissioner cannot grant an approval or permit or issue a licence under this Act to a person if the Commissioner is of the opinion that
(a)to do so would be contrary to section 11A or regulations under section 11B or 11C;
… (Emphasis added.)
11A. Genuine reason required in all cases
(1)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.
(2)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;
…
(f)it is for another approved purpose.
(3)A person does not have a genuine reason for acquiring or possessing a firearm or ammunition … unless the Commissioner is satisfied not only as to the person's reason for acquiring or possessing a firearm or ammunition but also that the particular … firearm or ammunition can be reasonably justified.
….
(5)Approval cannot be given under subsection (2)(f) to the possession of a firearm or ammunition for the purpose of personal protection.
… (Emphasis added.)

Contentions by the Commission of Police

The key contentions of the Commissioner of Police can be summarised as follows:
a)The onus is on Mr Bergmann to satisfy the Tribunal as decisionmaker that he has a genuine reason for the licence. It is not by right but a privilege to hold a firearm's licence.
b)Although Mr Bergmann had been licensed to hold the firearm in 1991, the Firearms Act has been amended to include the stricter conditions regarding 'genuine reason'. The Commissioner was therefore entitled to reconsider the grounds upon which Mr Bergmann was licensed and to revoke the licence since he would not, if he applied for the licence now, be successful.
c)Mr Bergmann has not shown that he requires the licence for the purposes of his occupation. The Tribunal has previously determined that it is not a genuine reason to be licensed for the purposes of defending oneself against vermin as part of one's profession.
d)Mr Bergmann does not need this calibre for the purpose he contends. A .357 revolver is not suitable for killing crocodiles.
e)The Firearms Act explicitly excludes as a genuine reason to be licensed with a firearm, the justification of personal protection.
The decision of the Commissioner to revoke the licence should therefore be affirmed.

Contentions by Mr Bergmann

The key contentions made by Mr Bergmann can be summarised as follows:
a)He has held a licence for this firearm since 1991; he has had no offences under the Firearms Act; he is a fit and proper person to hold a firearm and nothing in his circumstances as far as his occupation has changed.
b)He requires the firearm for the purposes of his occupation. He conducts his business in shallow, muddy waters and is exposed to crocodile attack. He would not shoot at a crocodile but would, rather, aim close to it in order to frighten it away. The revolver is also used to kill sharks that may be caught in the nets. If he does not remove a shark from the net, it would take a while for the shark to drown and in the process it would attract other sharks. Removing the carcass then becomes so much more risky and difficult.
c)A rifle cannot be used for these purposes since it is too large and cumbersome to operate while he is in a small boat or waist level in mud.
d)Sharks and crocodiles cannot be classified as 'vermin' and therefore are not covered by the provisions of the Firearms Act that explicitly states that the killing of vermin is not a 'genuine reason' to be licensed with a firearm.
The decision of the Commissioner should therefore be set aside and his licence should be reinstated.

Consideration

This review is conducted by way of a hearing de novo. The Tribunal's consideration of the application is therefore not confined to the matters that were before the delegated officer when the decision was made (s 27(1) of the SAT Act.)
The Tribunal is placed in the position as delegated officer under the Firearms Act. The Tribunal is not limited in its review to the reasons for decision by the delegated officer but can take new information into account prior to making its decision. The purpose of the review is therefore for the Tribunal, as delegated officer, to produce a correct and preferable decision: (s 27(2) of the SAT Act).
In the same way that Mr Bergmann had to satisfy the delegated officer that he continues to fulfil the requirements of the Firearms Act to retain his licence, he now has to satisfy the Tribunal that if he were to apply for a .357 revolver licence today, it would be issued. The Tribunal has to rely on the Firearms Act and all relevant evidence and information to determine if the application for review must succeed.
The Tribunal is not bound by the rules of evidence (s 32(2)(a) of the SAT Act) and may 'inform itself on any matter it sees fit' (s 32(4) of the SAT Act).
In considering the application, the Tribunal has taken into account the written and oral evidence, the exchange of correspondence and the submissions made by the parties.
The Firearms Act makes provision in the long title for the 'control and regulation of firearms' and stipulates that the delegated officer 'cannot' issue a permit for a licence if he is 'of the opinion …' (s 11(1) of the Firearms Act). Section 11A(1) further provides that 'a licence cannot be issued' to a person who in the 'opinion' of the delegated officer 'has not shown to have a genuine reason for acquiring or possessing the firearm …'. Section 11A(2)(d) of the Firearms Act provides that a 'genuine reason' is if a person requires to be licensed 'in the course of the person's occupation'. (Own emphasis.)
These provisions provide the delegated officer with the discretion to take into account information that is relevant and applicable to the specific application under consideration to determine if a licence can be issued. The discretion of the delegated officer is, however, not unlimited. It has to be exercised within the framework of the Firearms Act and, in particular, against the provisions of s 11 and s 11A of the Firearms Act.
This has been confirmed by the Supreme Court of Western Australia in ReBrown; Ex parte Scudds, (1995) 14 WAR 270, where the court held that 'the grant of a licence under s 22 of the Firearms Act 1973 (WA), is discretionary and it will not be granted if the commissioner, or a magistrate on appeal, determines that the applicant does not have a "good reason" within s 11'. (Own emphasis.)
The Tribunal now turns to the requirements of the Firearms Act and the evidence and submissions of the parties.
Section 11A(1) precludes the delegated officer from issuing a licence if in his opinion Mr Bergmann has not shown to have a 'genuine reason' for possessing the firearm.
The Commissioner challenges the reasons to be licensed put forward by Mr Bergmann. The objections raised by the Commissioner rest on four pillars, namely:
a)Mr Bergmann does not have a genuine reason since this type of firearm is not required in the course of his profession.
b)This type of firearm is not suitable for the purpose Mr Bergmann wants it for since it is not capable of killing a crocodile.
c)Personal protection is not a valid ground to be licensed to hold a firearm.
d)The Firearms Act and decisions of the Tribunal provide that a genuine reason to be licensed does not include the killing of vermin in the course of one's profession.
Mr Bergmann was issued with a licence to hold a .357 revolver in August 1991. The licence was subject to conditions that were related to his profession as a fishing boat operator. He has not been found noncompliant in adhering to those conditions.
Mr Bergmann explained to the Tribunal the dangerous nature of his profession. According to him, he catches barramundi where few fishermen would dare to go. He often operates in swamps where he has to traverse in mud up to his waist trying to empty nets. It is especially in those circumstances where he is exposed to the risk of crocodile attacks. He says that in case of an emergency he would shoot at a crocodile but only with the intent of frightening it and not to kill. He estimates that he shoots about once per year at a crocodile. It also happens that sharks may be caught up in his nets. The sooner he removes the shark the better, otherwise it drowns and attracts other sharks to the net. He would therefore pull the net out, kill the shark and dump the carcass in the river. He says this has not happened for some time, perhaps once in the last three years. A rifle is not suited for this purpose since it is heavy, cumbersome to operate and not easy to carry in a small vessel or when walking in the muddy waters.
Mr Bergmann therefore says, as follows, in reply to the contentions of the Commissioner:
a)He has a genuine reason to be licensed and this was acknowledged as far back as 1991.
b)The type and calibre of handgun is suitable for chasing away crocodiles and killing sharks. Although a high calibre rifle may be more effective, the benefit of a revolver is that it is easier to carry and to operate.
c)Crocodiles and sharks cannot be classified as 'vermin' and therefore the restrictions that apply to handguns being licensed for pastoral owners do not apply to him.
d)The conditions that were applied to the keeping of the revolver since 1991 were adequate and should be reinstated.
The Tribunal accepts that Mr Bergmann operates in very hazardous circumstances, but in its opinion he should not be licensed to hold this calibre handgun for the following reasons.
The Tribunal is not satisfied that Mr Bergmann has demonstrated that this type of firearm is required in the course of his occupation. The Tribunal accepts that he is licensed to commercially fish barramundi, but it is not satisfied that the issuing of a .357 revolver is a requirement for the typical risks associated with that occupation. In fact, when the Tribunal asked Mr Bergmann whether other fishermen also carry revolvers to protect themselves, he said, 'No' since they do not operate in such hazardous areas. There was no other evidence from commercial fishermen or from the Department of Fisheries to support his contentions that he needed this licence for the purposes of his occupation. The Macquarie Concise Dictionary (3rd ed, 2004) defines occupation as 'business, trade, or calling; one's habitual employment'.
It is the Tribunal's view that Mr Bergmann exposes himself to very dangerous parts of Western Australia for fishing and, although the area in which he fishes may be his choice, it cannot be concluded that being issued with a .357 revolver is standard equipment for his occupation. He can minimise his risks and exposure, and he has done so; hence his evidence that he only rarely requires the actual use of the revolver. The Tribunal notes Mr Bergmann's evidence that he has only shot at or killed a shark once in the past five years and a crocodile once in the past year.
The Tribunal is further not satisfied that, even if Mr Bergmann needed a firearm for the purposes of his occupation, this type of calibre is suitable for the purpose for which Mr Bergmann wants to use it. Even if Mr Bergmann had a genuine reason to be licensed, s 11A(3) of the Firearms Act requires that the 'particular kind' of firearm must be adequate for the purpose of the occupation for which it is required. Mr Bergmann has not succeeded in demonstrating that his needs meet this requirement. It may be easier to carry a revolver on a small boat or while walking in mud, but the question is if[the calibre is suited for the killing of sharks and crocodiles. The evidence before the Tribunal is that such a calibre revolver is not suited for killing a crocodile. According to the Commissioner, a .308 rifle is the minimum calibre required for the killing of a crocodile. Mr Bergmann agrees and says, therefore, that he only aims next to a crocodile to frighten it away. The Tribunal is, therefore, of the opinion that Mr Bergmann failed to show that the firearm he is seeking to be licensed for, namely a .357 revolver, is 'reasonably justified'.
The Tribunal further notes that crocodiles are a protected fauna and can only be taken under special permit. Mr Bergmann does not have such as permit. By granting him the handgun licence, the Tribunal might be seen to, in effect, authorise him to shoot and kill crocodiles rather than to encourage him to take precautions and remove himself from harm's way.
The Tribunal understands the frustration of Mr Bergmann that his licence is being revoked after he has held it for close to 19 years. But the Tribunal must apply the law as it stands. The Firearms Act has been amended since the licence was issued and it is now far more complex for a licence to be obtained. The requirements for a 'genuine reason' to be demonstrated have been tightened and that is the law that the Tribunal must apply. The Firearms Act empowers the Commissioner to revisit previously issued licences to determine if those licences were applied for today whether they would be issued. In the case of Mr Bergmann, the Commissioner concluded, and the Tribunal concurs, that a licence to hold a .357 calibre revolver would not be issued today for the purposes that he proposes it be used. The Commissioner therefore acted within its powers by revoking a licence that had previously been issued.

The Tribunal further notes the public interest considerations raised by the Commissioner as to why strict requirements are in place to regulate the issuing of handguns. Handguns constitute a specific potential threat to public peace and order and the licensing thereof should only be in compliance with the strict requirements of the Firearms Act. The Tribunal is of the opinion that if all interests are taken into account, Mr Bergmann ought not to be licensed.
The question also arose whether the licence should be refused on grounds that Firearms Regulations 1974 (WA), Sch 3, Category H specifically precludes the holding of a handgun for the purposes of killing vermin. Schedule 3, Category H provides as follows:
…
(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.
The Commissioner contended that the killing of sharks and crocodiles in the course of Mr Bergmann's occupation would bring into operation Sch 3, Category H. Mr Syme opposed this contention on the basis that it would mean that sharks and crocodiles are regarded as 'vermin'. In the matter of BerryPorter and Commissioner of Police [2007] WASAT 212, the Tribunal considered these provisions and concluded that it had no discretion to issue the handgun licence since it had been explicitly excluded by the Regulations. The Regulations specifically state that a person does not have a genuine need for a handgun if it is required for destroying vermin. Mr Syme made submissions to show why sharks and crocodiles cannot be classified as 'vermin' for purposes of these Regulations.
In the matter of Anick and Commissioner of Police [2008] WASAT 173, the Tribunal affirmed that a handgun licence cannot be issued for the killing of vermin or stock even if it were to be used only in emergency situations. The Act and regulations explicitly preclude those reasons from the discretion of the Tribunal. The Tribunal observed as follows:
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.
There is no need for the Tribunal to make a determination whether the killing of sharks and/or crocodiles is covered by Category H of the Regulations since it has already found that in its opinion a genuine reason to be licensed does not exist.

Finding

The Tribunal finds that Mr Bergmann should not be issued with a licence to hold a .357 magnum revolver on grounds that the Tribunal is of the opinion that:
a)Mr Bergmann does not have a genuine reason for the licence to be issued.
b)The licence is not required by Mr Bergmann in the course of his occupation.
c)The calibre of firearm cannot be reasonably justified for the purposes it is intended to be used.
c)The licence may not be granted for the purposes of selfdefence.
d)It is not in the public interest for the licence to be issued.

Orders

1.The application for review of the decision to revoke Mr Bergmann's firearm licence fails.
2.The decision to revoke the licence is affirmed.

I certify that this and the preceding [48] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
DR B DE VILLIERS, MEMBER