BERRY and COMMISSIONER OF POLICE - [2005] WASAT 105

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: FIREARMS ACT 1973

CITATION: BERRY and COMMISSIONER OF POLICE [2005] WASAT 105

MEMBER: DR B DE VILLIERS (MEMBER)

HEARD: PRIMARY HEARING: 3 MAY 2005; DIRECTONS HEARING: 17 FEBRUARY 2005; DIRECTIONS HEARING: 1 APRIL 2005

DELIVERED : 10 MAY 2005

FILE NO/S: CC 201 of 2005

BETWEEN: SETH MEADOWS BERRY
Applicant
AND
COMMISSIONER OF POLICE
Respondent

Catchwords:

Firearm - Refusal to issue licence - Genuine need - Type of firearm

Legislation:

Firearms Act 1973, s 5A(3), s 11(1), s 11A, s 18, s 22, s 22(2),

State Administrative Tribunal Act 2004, s 17, s 29(1), s 27 (1), s 27(3), s 29(3), s 29(5)

Result:

The application for review is dismissed
The decision of the delegated officer dated 6 December 2004 is affirmed

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Sgt Rundle

Solicitors:

Applicant: Self-represented
Respondent: Self-represented

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

Brown, Re; Scudds, Ex parte (14 WAR 270, 1995)

Case(s) also cited:

Nil

DR B DE VILLIERS (MEMBER):
REASONS FOR DECISION

Issue

The applicant applied for a review of the decision by the respondent to refuse his application for a licence to hold two high calibre rifle licences classified as category B licences under the Act. The application for review is lodged under s 22 of the Firearms Act 1973 (any reference to a section of an Act is, unless otherwise specified, a reference to the said Act).
The applicant contends that he provided the respondent with the required information to enable approval of the application. This includes passing a standard written test, providing authorisation from the landowners of the land where he intends to discharge the rifles and explaining the reasons why he requires the rifles. The decision of the delegated officer should therefore be set aside and the licences issued.
The respondent contends that the applicant has not provided adequate motivation of the genuine need for such high-powered rifles; the land where the rifles are to be discharged is not suitable for this purpose; public safety may be jeopardised; and insufficient evidence has been submitted to support the claims that substantial stock and crop losses have occurred. The decision of the delegated officer should therefore be affirmed.

Background

The applicant applied for licences for two Category B high calibre rifles on 20 May 2004. On the application form the applicant described the rifles as two Single Rifle Shot, Nagant, 7.76millimetres, date of manufacture 1944. The intended use of the rifles as set out in the application form is for the hunting of foxes, kangaroos, crows, cats and rabbits. During his evidence the applicant indicated that he requires the rifles only for the hunting of kangaroos as the calibre would be excessive for the other animals listed in his original application. The applicant referred to the Department of Conservation and Land Management (CALM) in his original application. He indicated that he has 2 years experience in the use of firearms. Following lodgement of the application he passed the written test as required by the respondent. Pursuant to requests from the respondent for additional information, the applicant provided information in regard to his understanding of the ballistics of the rifles and the intended places where the rifles would be discharged. He also responded orally to questions by the respondent as to why he needs two rifles of the same calibre.
The delegated officer wrote to the respondent on 30 September 2004 to request more information regarding his understanding of the ballistics of the rifles, the suitability of the properties where the rifles are to be used and his need for the rifles. The respondent replied on 14 October 2004. The respondent notified the applicant on 6 December 2004 that his application was refused due to his failure to satisfy the requirements of s 11 in particular his failure to properly address the questions put to him in the letter dated 30 September.

Applicant, Respondent and witnesses

The applicant is Mr Seth Meadows Berry from RMB 8601B, Nannarup Rd, Lower Kalgan, 6330.
The respondent is the Commissioner of Police being represented by Sgt Rundle, Law Chambers, Level 9, 573 Hay Street, PERTH WA 6000.
The applicant called one witness Mrs Elspeth Berry. The applicant and witness appeared via video link from Albany.
The respondent called three witnesses – Superintendent Great Southern Police District John Patric Watson, Sgt David Tadic and Senior Constable Robin Scott.

Application lodged with State Administrative Tribunal

The application was lodged on 1 February 2005 with the State Administrative Tribunal.
The State Administrative Tribunal ("SAT") was established on 1 January 2005 pursuant to s 7 of the State Administrative Tribunal Act 2004 ("SAT Act"). In exercising its review function SAT deals with a matter in accordance with the SAT Act (s 17) and the enabling Act (s 22(2)). The Tribunal comprised of Dr B De Villiers.
Section 22(2) enables a person aggrieved by a decision by or on behalf of the Commissioner to seek a review from SAT thereof. The decision in this matter is the refusal of the delegated officer appointed by the Commissioner pursuant to s 5A(3). The delegated officer who determined the application was Superintendent Great Southern Police District John Patric Watson.
The Tribunal has in accordance with s 29(1) SAT Act the same jurisdiction, functions and discretions as those of the delegated officer.
The Tribunal is not limited to the statement of reasons given by the delegated officer (s 27(3) 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) SAT Act).
The review hearing is therefore "de novo" (s 27(1) SAT Act) and is not confined to the matters and information that were before the decision-maker at the time of the decision.
The powers of Tribunal according to s 29(3) SAT Act are to –
(a)Affirm the decision; or
(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) SAT Act).

Order sought

The applicant is seeking an order to set aside the decision of the delegated officer not to issue two rifle licences and for the licences to be issued.

Firearms Act 1973

Key provisions of the Act dealing with an application for a firearm licence are:
Long title of the Act: "An Act to make provisions for the control and regulation of firearms and ammunition, the licensing of persons possessing, using, dealing with or manufacturing firearms and ammunition…."
Section 5A(3): The Commissioner may delegate to a member of the Police Force the power to issue a firearm licence under the Act.
Section 11(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 the regulations under section 11B or 11C……; (b) it is not desirable in the interests of public safety; (own emphasis)
…

(8) Where the Commissioner, in writing, requests an applicant for an approval, permit or licence to supply information, or further information, which the Commissioner considers to be necessary to enable the application to be properly determined, if that information is not supplied – (a) within 28 days, or such further period as the Commissioner may approve; and (b) in the manner and form requested by the Commissioner, the application lapses and the approval, permit, or licence sought cannot be granted or issued." (own emphasis)

Section 11A: "(1) An approval or permit cannot be granted, and a licence cannot be issued, under this Act to a person who, in the Commissioners 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. (own emphasis)
(2) A person has a genuine reason for acquiring or possessing a firearm or ammunition if and only if –(own emphasis)
(a)it is for use by the person as a member of an approved shooting club and the person is an active and financial member of the club;
…
(c) it is for use in hunting or shooting of a recreational nature on land the owner of which has given written permission for the hunting or shooting…"

…
(3) A person does not have a genuine reason for acquiring or possessing a firearm or ammunition of a particular kind unless the Commissioner is satisfied not only the person’s reason for acquiring or possessing a firearm or ammunition but also that the particular kind of firearm can be reasonably justified." (own emphasis)

Section 18"(8) Where the Commissioner refuses an application…the Commissioner is to forthwith notify the applicant, in writing, of the reasons for the decision." (own emphasis)
Section 22"(2) A person aggrieved by a decision made by or on behalf of the Commissioner may apply to the State Administrative Tribunal for a review of the decision."

Direction Hearings and Primary Hearing

The application was initially listed for hearing on 23 March 2005. Due to the unavailability of the respondent for reasons set out in a letter dated 15 April 2005, the hearing was re-scheduled for 1 April 2005. It appeared that the date did not suit the applicant for reasons set out in an email dated 30 March 2005. The hearing was subsequently rescheduled for 2 May 2005.
At the primary hearing the nature of the proceedings as set out above was explained to the parties. Their attention was also drawn to s 98 SAT Act that makes it an offence to give false or misleading evidence to the Tribunal. The Tribunal confirmed that it had received and read the submissions made by the parties as well as copies of correspondence exchanged between them. The parties were invited to put any additional evidence and submissions to the Tribunal. A practical arrangement was made for the respondent to commence with the proceedings followed by the applicant.
The applicant called one witness: Mrs Elspeth Berry and also gave evidence himself.
The respondent called three witnesses: Superintendent Great Southern Police District John Patric Watson, Sgt David Tadic and Senior Constable Robin Scott.

Applicant submissions

The applicant filed the following documents (note that the respondent also filed document that the applicant is relying on):
(a)Application for review: 1 February 2005;
(b)Letter from Attorney General: 28 January 2005;
(c)Letter from Mr Seth Berry: 23 August 2004;
(d)Letter from Dr Peter Gilet: 18 August 2004;
(e)Letter from Mrs Alspeth Berry: 13 August 2004;
(f)Letter from District Superintendent JP Watson: 30 September 2004;
(g)Email from Mr Berry: 14 October 2004; and
(h)Letter from District Superintendent JP Watson: 6 December 2004.
The following paragraphs summarise the evidence and submissions on behalf of the applicant:
(i)He applied for 2 high calibre rifle licences (Single shot Nagant 1944, 7.62millimetres) on 20 May 2004. In June 2004 he sat and passed the written test as required by the respondent. Since then he has responded in full to further oral and written queries made by the respondent in regard to his application;
(ii)The respondent has shown ongoing prejudice towards his family in general and this application in particular. This is evident in the long time it took to respond to his letters, the delay in processing his application and the irrelevant information regarding the behaviour of his younger brother the respondent took into account in considering the application;
(iii)He has two years experience in handling firearms and although he is not a member of a rifle club he has attended target practice at a club in Albany;
(iv)He responded to the full extent required by law as to his knowledge of ballistics and the genuine reason for possessing these firearms. The delegated officer did not define what is meant by "ballistics" and there is no statutory basis for the applicant to be required to provide additional information in regard to his understandings of the concept;
(v)The delegated officer acted outside of his powers by requiring additional information that is not sanctioned by the Act, such as the size and location of the properties where the rifles would be discharged. The Act only requires written authorisation from the relevant landowners and the applicant complied by submitting such letters;
(vi)The letter of refusal by the delegated officer of 6 December 2004 did not constitute a proper statement of reasons because it merely referred back to questions that were put in the previous letter dated 30 September 2004 without indicating why the response of the applicant was inadequate;
(vii)The discretion of the delegated officer does not include the right to undertake “individualised competence testing”. The delegated officer erred by adopting a subjective approach. The additional information sought by the delegated officer is "beyond legal requirement";
(viii)In regard to the genuine need for the rifles the applicant holds that he has fulfilled the statutory requirements due to –
(a)The crop losses amounting to an estimated $5 000 his family has suffered; and
(b)The second rifle would be used for spare parts and to replace the first rifle if it gets worn out.
(ix)He concludes that has fulfilled all legal obligations as set out in s 11 and that the application should be granted.

Respondent submissions

The respondent filed the following documents:
(a)Form 1 Application for a firearms licence completed by Mr Berry. 20 May 2004;
(b)Report on application for firearm completed by Mr Berry: 20 May 2004;
(c)Statutory declaration completed by Mr Berry: 20 May 2004;
(d)Test for applying for a firearm licence completed by Mr Berry: undated;
(e)Letter from Sgt Hildebrandt to Mr Berry: 26 July 2004;
(f)Letter from Mr. Berry to Sgt Hildebrandt: 23 August 2004;
(g)Letter from Sgt Hildebrandt to Mr Berry: 30 August 2004;
(h)Internal memorandum from Sgt Hildebrant to Officer in Charge, Albany: 30 August 2004;
(i)Letter from District Superintendent JP Watson to Mr Berry: 30 September 2004;
(j)Email from Mr Berry to Senior Constable Tadic: 14 October 2004;
(k)Letter from Sgt Scanlon to Mr Berry: 19 October 2004;
(l)Letter from Mrs E Berry to Sgt Scanlon: 25 October 2004;
(m)Letter from Dr Gilet to Senior Constable Tadic: 2 November 2004;
(n)Internal memorandum from Senior Constable Tadic to Officer in Charge, Firearms Branch: 3 November 2004;
(o)Internal memorandum from Sgt Hildebrandt to Senior Constable Tadic: 5 November 2004;
(p)Letter from District Superintendent JP Watson to Mr Berry: 6 December 2004;
(q)Affidavit by Mr Terrence Davey: 23 April 2005;
(r)Maps of the areas of intended use of rifles: Exhibits R5A, R5B, R6A, R6B; and
(s)Print-out of a basic description of the rifle for which an application is sought: Exhibits 7A and B.
The following paragraphs summarise the evidence and submissions made on behalf of the respondent:
(i)The delegated officer has the discretion to take into account any information that relates to the exercise of his statutory powers. The delegated officer "cannot" issue a licence if he is on the "opinion" that to do so would be contrary to section 11A or if it is "not desirable in the interests of public safety." (s 11(1)).
(ii)The delegated officer has to be satisfied of (a) the genuine need for the rifles, (b) that permission has been given by the land owner where the rifles would be discharged and (c) that the use of this "particular kind of firearm or ammunition can be reasonably justified." (s 11A(1)-(3)).
(iii)The applicant has erred in his submission that the delegated officer cannot "individualise" an application. In fact the delegated officer is required to individualise an application by taking account relevant information that relates to the provisions of sections 11 and 11A. The firearm licence is applied for by the applicant and the delegated officer is therefore required to take into account relevant information in regard to the genuine reason for the use of the firearm provided by the applicant. It is not a hypothetical question but a decision that relates directly to the circumstances of the applicant.
((iv)The initial written test was intended merely as part of the application process and the delegated officer retains the discretion to require additional information from the applicant pursuant to ss 11 and 11A. The application form makes it clear that "in the case of a Category B (high powered) firearm the applicant needs to satisfy the Genuine Need test as well."
(v)The delegated officer may take into account the expert advice he received from his staff – in this application advice was received from Sgt Tadic who was the firearms officer at the time of the application and who has wide ranging expertise in firearms and ammunition. The delegated officer therefore considered the application on the basis of advice he received, his own consideration of the application and any other relevant information.
(vi)Constable Scott attempted to explain to the applicant that a smaller calibre Category A type may be more appropriately for the purposes he mentioned or in the alternative that if he joined a rifle club it may provide greater justification for the issuing of a licence for a high calibre rifle. Sgt Tadic also encouraged the applicant to "work with us so we can come to a mutual acceptable arrangement." The applicant did not take up the invitation.
(vii)The calibre applied for would be "extreme" for the purposes listed namely the hunting of crows, rabbits, feral cats and kangaroos. Although the calibre may be effective for the hunting of kangaroos, it would hold serious risk and be inappropriate for use against crows (a protected species), rabbits, cats and foxes – especially within the confines of such small blocks of land.
(viii)There is no justification for the applicant to hold two rifles of the same calibre for mere reason of "spare parts". The applicant is not trained to repair rifles and spare parts for this calibre are readily available.
(ix)The type of firearm applied for is designed as a military sniper-firearm and not suited for the intended purpose listed by the applicant. The danger range of the projectile is up to 2 700m. This would put members of the public, users of public infrastructure and particularly neighbouring properties and persons at serious risk. The applicant shows little understanding of the ballistics of the rifles. This is evident in his response to Sgt Tadic that the range of the projectile is approximately 400m.
(x)The properties listed by the applicant are not suitable for the discharge of this calibre of rifle. The applicant originally indicated he would use the rifle on the farm of Mr Davey, his previous employer, but Mr Davey withdrew his authorisation and stated in his affidavit that: "I had known Seth for seven or eight months and during this time I formed the opinion that Seth should not hold a high powered firearms licence because I'd see him off day dreaming and the thought of him holding a rifle scares me." The two other intended properties where the rifles would be discharged suffer serious shortcomings for the intended purpose. Both blocks are very small, with neighbours, livestock, public infrastructure and residential units in close proximity. The properties are not suitable for the discharge of these calibre rifles. The owners of both properties have said they possess little or no knowledge of firearms.
(xi)Although the applicant may have had limited training in the handling of pistols and rifles, the delegated officer had a concern of apparent lack of appropriate knowledge or experience in use of particularly high power centre fire rifles. The applicant could not provide during evidence detailed examples of his training in the use of such rifles. He could not name any person who trained him in the use of rifles and admitted that he mainly had training in the use of pistols.
(xii)There was little, if any, evidence of primary production on the two properties and no evidence has been submitted to substantiate the alleged losses incurred by the applicant and his family. There is also no evidence that the applicant approached the Conservation and Land Management Department for assistance with the kangaroo problem, if any. The reference in his application to "CALM" is therefore misleading.
(xiii)The letter dated 30 September 2004 by the delegated officer made it clear to the applicant what additional information was sought for the application to be considered. He responded to the letter by writing to Sgt Tadic but he failed to address the questions satisfactorily and have therefore not shown that he has a genuine reason to be issued with the licences and he also failed to demonstrate that the use of the rifles can be reasonably justified.
(xiv)In light of the above the delegated officer concluded that he cannot issue a licence as in his opinion the applicant failed to satisfy the requirements of s 11.
(xv)The decision of the delegated officer to refuse the application should be upheld.

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) SAT Act). The Tribunal is placed in the position as delegated officer under the Act. The Tribunal is also not limited in its review to the reasons for decision by the delegated officer. The purpose of the review is therefore for the Tribunal as delegated officer to produce a correct and preferable decision (s 27(2) SAT Act).
In the same way that the applicant had to satisfy the delegated officer that he fulfils the requirements of the Act to have his application for the 2 licences approved, he now has to satisfy the Tribunal. The Tribunal has to rely on the Act and any 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) SAT Act) and may "inform itself on any matter it sees fit." (s 32(4) SAT Act).
In considering the application the Tribunal has taken into account the written and oral evidence, the exchange of correspondence and submissions made by the parties.
The key question on which the applicant relies is whether the delegated officer has discretionary powers in considering the application, and if so, what are the limitations for the exercise of such discretion. The applicant takes issue particularly with the “subjective” testing by the delegated officer to determine whether the applicant had fulfilled the requirements of the Act. The applicant is of the view that the delegated officer does not have "discretionary powers in relation to assessing competence" and that some of the questions put to him by the delegated officer in the letter of 30 September 2004 were "beyond legal requirement".
If the applicant is correct in his argument, the Act would have set out a "tick the box" test comprised of objectively determined criteria for completion by an applicant of a firearms licence. The Act would also have used words such as the delegated officer "must" issue a licence if an applicant complies with the test.
However, the wording of the Act and the implications thereof are the opposite of what the applicant contends. The 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"…. (s11(1). S 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…"
These provisions clearly 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 under the Act is not unlimited. It has to be exercised within the framework of the Act and in particular against the provisions of s 11 and s 11A.
The delegated officer is not constrained in the exercise of his discretion to the information provided in the application form and written test completed by the applicant. The delegated officer may require additional information from the applicant to assist him in the exercise of his discretion. Hence the provision in s 11A(8) that enables the delegated officer to request from the applicant "information, which the Commissioner (delegated officer) considers to be necessary to enable the application to be properly determined…" (own emphasis)
Rather than reducing the function of the delegated officer to a mechanical tick-the-box, the Act requires from the delegated officer to apply his mind and take into account all relevant information that may have a bearing on his decision under s11.
This has been confirmed by the Supreme Court of Western Australia in Brown, Re; Scudds, Ex parte (14 WAR 270, 1995) where the court held that "the grant of a licence under the Firearms Act 1973 WA, s 22, 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 s11." (own emphasis)
The Tribunal therefore has a discretion similar to that of the delegated officer in considering the application and any information of relevance thereto.
The Tribunal now turns to the requirements of s11 and the evidence and submissions of the parties.
In his letter dated 30 September 2004 the delegated officer highlighted three issues on which further information from the applicant was required. In doing so the delegated officer relied on the powers granted to him by s 11(8). The three issues on which additional information were required were –
1.A statement that the applicant understands the ballistic characteristics of large calibre centre fire firearms;
2.The genuine need for two firearms of the same type and calibre; and
3.Supporting documentation relating to the access to properties suitable for the discharge of these types of firearms.
In the submissions of the applicant he contends that the delegated officer acted outside of his powers by putting questions 1 and 3. According to the applicant the delegated officer was not entitled to request more information in regard to the applicant's understanding of the ballistic characteristics of the rifles or the suitability of the said properties where the rifles were intended to be discharged as there is no reference in the Act to such criteria.
Section 11(1) (a) and (b) enable the delegated officer to refuse to issue a licence if in his opinion it would be contrary to s 11A or not desirable in the interests of public safety.
The Tribunal holds that the delegated officer was entitled to request the type of information set out in his letter of 30 September prior to him making a decision under s 11.
The location and size of the land where the rifles are intended for discharge are indeed relevant factors to take into account by the delegated officer when he considers the interests of public safety. It has been shown convincingly by the respondent that the two blocks of land where the rifles would be discharged are not only very small, they are surrounded by other farming, residential, tourism, commercial, and other public interests as well as public infrastructure such as roads and railway line within the 2 700m danger zone of the rifles. It is therefore within the lawful powers of the delegated officer to have made enquiries about the suitability of the properties. In his statement of reasons of 6 December 2004 the delegated officer should indeed have expanded on his reasons as to why he had reached his conclusion rather than to merely rely on his letter dated 6 September 2004. The Tribunal nevertheless is satisfied that the respondent has shown convincingly that the suitability of the properties is a relevant consideration and that to issue the licences for use on these properties may endanger public interests.
In regard to the applicant's understanding of the ballistics of this calibre rifle, the delegated officer has a duty to ensure that applicant, who was seeking two licences for Category B high powered rifles, was sufficiently acquainted with the ballistic characterises of the rifles as not to endanger the public. In seeking a statement or explanation the delegated officer was acting within his powers under s 11(1)(b). The applicant was given opportunity in evidence to expand on the limited information he provided to the delegated officer. The question is particularly relevant if account is taken of the proximity of the said properties to other public interests. In response to the question by the delegated officer the applicant merely states that he has a "broad understanding of the term ballistic in relation to firearms, but any demand for proof of that which has already been supplied would be beyond legal requirement." The applicant did not expand satisfactorily in his evidence on his understanding of the ballistics or risks associated with the use of the rifles.
The Australian Pocket Oxford Dictionary (Moore, B. (ed.) 2004: Oxford University Press) refers to "ballistics" as relating to the movement under force of gravity and the science of projectiles and firearms. An understanding of the ballistics of such a high powered firearm could relate for example to the possible uses of the firearm, the trajectory of the bullet, the danger range of the bullet, risks of a bullet ricochet due to high speed and the required area and circumstances for the save discharge of the rifle. The brief response by the applicant and the cursory and rather uninformed way in which he responded in cross-examination to the risks associated with a bullet ricocheting is unsatisfactory and completely inadequate. The applicant demonstrates a serious lack of knowledge regarding the ballistics of this calibre rifle. The Tribunal finds that the applicant has failed to demonstrate a proper understanding of the ballistics of these high powered rifles and the possible risks their discharge may hold to the public interest.
In addition to taking into account the public interest, the Act also requires that the delegated officer must be satisfied of the applicant's reason for acquiring "that particular kind of firearm…" (S11A(3). This requirement is dealt with below.
Section 11A(1) precludes the delegated officer from issuing a licence if in his opinion the applicant has not shown to have a "genuine reason" for possessing the firearms.
The "genuine reason" provided by the applicant is that he requires the firearms for hunting on land of which the owners have given permission. (s 11A(2)(c). The applicant indicated on the application form that he intends to hunt kangaroos, feral cats, crows and foxes on the said properties. In evidence the applicant conceded that the specific calibre would be excessive for use against some of these species he listed and that he would only require it for the hunting of kangaroos.
Although he contends that kangaroos have caused an estimated $5 000 damage to agricultural activities and crop losses, no supportive evidence to sustain this estimation was offered in submissions or evidence. In fact Mrs Berry gave evidence that damage to the fruit trees was caused by parrots and crows and that the kangaroos had only been responsible for eating "new shoots" of the bamboo trees that were planted 18 months ago. Mr Berry confirmed in evidence that although he had listed CALM as a reference on his application form, no complaint of damage had been lodged with CALM and no request for assistance to control kangaroos had been submitted to CALM.
The Tribunal notes the observations by Senior Constable Tadic that he could not detect on either of the properties major commercial primary production activities when he undertook an inspection. There is also no evidence from Dr Gilet that he requires the assistance from the applicant to combat vermin on his property. The applicant did not provide evidence to refute the observations by Senior Constable Tadic.
The applicant provided written authorisation from the two landowners where he intends to discharge the rifle. The Tribunal notes however that both the landowners notified the Tribunal that they knew little or nothing about rifles. It is of concern that the landowners would authorise the applicant to discharge a high calibre rifle on their property without satisfying themselves of some basic information regarding the calibre of the rifle, possible danger the discharge might hold to persons on the said property, possible risks to neighbours and possible risks to the wider public.
Section 11A(3) provides further clarification of the type of information that may be taken into account by the delegated officer. It specifies that a person "does not have a genuine reason" for possessing a firearm "of a particular kind" unless the delegated officer is satisfied "not only as to the persons reasons…but also that the particular kind of firearm or ammunition can be reasonably justified." (own emphasis) This means that the delegated officer is not constrained in the exercise of his decision to the stated reasons offered by the applicant. The delegated officer must also take into account the kind of firearm and if the use thereof can be "reasonably justified".
The question for the Tribunal is therefore whether the applicant has reasonably justified that he requires these particular calibre firearms for the purpose of hunting kangaroos on the said properties.
In exercising his discretion the delegated officer can take into account various factors including the intended use of the rifles and the place where they are to be discharged. In his explanation why he requires this calibre rifle the applicant indicated it was for the "humane" destruction of kangaroos and foxes. Although the respondent admitted in evidence that this calibre rifle is indeed more effective to hunt kangaroos, the respondent contended that the use of these specific calibre rifles cannot be "reasonably justified" if account is taken of the place where the hunting is to occur, the size of the properties and possible danger to members of the public.
The Tribunal finds that the applicant has not reasonably justified that he has a genuine reason for the use of this particular calibre firearm as required by s 11A(3).
The Tribunal further finds that the applicant has failed to demonstrate the genuine reason for the issuing of two licences for the same calibre rifle. His explanation is that one rifle may become worn and then he has a replacement and also that one may be used for purposed of spare parts. The applicant admitted however that he does not have any training or experience in repairing rifles of any kind. These reasons are not convincing and do not meet the requirements of s 11A(3).

Finding

The Act is unequivocal in s 11(1) that the Tribunal cannot issue a licence under the Act to the applicant if the Tribunal is of the opinion that to do so would be contrary to s 11A or it is not desirable in the interests of public safety (s11(1)(b)).
The Tribunal finds that for the reasons set out above that –
1.it is not desirable in the interests of public safety to issue the licences to the applicant (s 11(1)(b)); and
2.the applicant has failed to reasonably justify a genuine reason for acquiring these particular firearms (s 11A(3)).
The Tribunal therefore finds that the application for review must be dismissed and the decision of the delegated officer affirmed pursuant to s 29 SAT Act.

Order

The application for review is dismissed.
The decision of the delegated officer dated 6 December 2004 is affirmed.

I certify that this and the preceding 19 pages comprise the reasons for decision of the Tribunal.

___________________

B De Villiers - Member