BERRY-PORTER and COMMISSIONER OF POLICE - [2007] WASAT 212

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: FIREARMS ACT 1973 (WA)

CITATION: BERRY-PORTER and COMMISSIONER OF POLICE [2007] WASAT 212

MEMBER: MS J HAWKINS (MEMBER)

HEARD: 23 JULY 2007

DELIVERED : 27 AUGUST 2007

FILE NO/S: CC 142 of 2007

BETWEEN: GERARD WAYNE BERRY-PORTER
Applicant
AND
COMMISSIONER OF POLICE
Respondent

Catchwords:

Application to review decision to issue handgun licence - Whether genuine reason or genuine need established - Decision to refuse handgun licence affirmed

Legislation:

Firearms Act 1973 (WA), s 11, s 11(1), s 11(3), s 11A, s 11A(1), s 11A(2), s 11A(2)(d), s 11A(3), s 11B, s 22, s 22(2)
Firearms Regulations 1974 (WA), Sch 3 Category H
State Administrative Tribunal 2004 (WA), s 27, s 29(1), s 29(3)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Mr A Skerritt
Respondent: Sergeant Wilson

Solicitors:

Applicant: Friedman Lurie Singh & D'Angelo
Respondent: Commissioner of Police

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

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Wignall v Commissioner of Police [2006] WASAT 206

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This was an application by Mr Berry‑Porter for review of a decision of the Commissioner of Police in refusing him a handgun licence. The application was made pursuant to s 22 of the Firearms Act 1973 (WA).
The decision to refuse to issue Mr Berry‑Porter with a handgun licence was based on s 11A and s 11B of the Firearms Act 1973 (WA). It also relied on the Firearms Regulations 1974 (WA), Sch 3 Category H. The Commissioner of Police maintained that Mr Berry‑Porter sought a handgun licence in his occupation as a dogger. The Commissioner of Police contended that Mr Berry‑Porter did not have a genuine reason for a handgun licence as he was held firearms licences for three types of rifles. The Commissioner of Police also argued that Mr Berry‑Porter could not show, as required under the relevant regulations, that he had a genuine need for a handgun licence. The relevant regulations stated that a person does not have a genuine need where the handgun is required to destroy vermin. In this case, as Mr Berry‑Porter wanted the handgun in his occupation as a dogger, which involves the destruction of vermin, namely feral dogs, he could not satisfy the relevant regulations.
Mr Berry‑Porter maintained that he did have both a genuine reason and genuine need for a handgun licence. He explained to the Tribunal that his occupation as a dogger required him to work in very remote regions of Western Australia. Sometimes he has to walk on foot and so has to keep what he carries into this remote country to a minimum. He finds it difficult to carry his rifles into these remote areas. He has also experienced his rifles being damaged when being transported on the motorbikes he uses for his work, as they can get caught in thick scrub. He also indicated that he had been experiencing greater difficulty with the feral dogs in remote regions. These dogs are domesticated dogs that have got into the wild and bred with dingos. These dogs are more aggressive than dingos and in many instances do not eat the poisoned baits left in the dog traps. It is necessary for him, therefore, to dispatch the dogs whilst they are trapped. He explained that firstly it is difficult to use the rifles at a short distance when the dogs are reacting aggressively. Further, he was concerned with the prospect of over‑penetration of bullets fired from his rifles which can then ricochet off the steel traps and possibly injure him.
The Tribunal found that despite the difficulties being encountered by Mr Berry‑Porter in his occupation as a dogger, he did not satisfy the Tribunal that he had a genuine reason or genuine need for a handgun licence. The Tribunal found that the rifles Mr Berry‑Porter is currently licensed to use, with the selection of the appropriate ammunition and telescopic sights, are sufficient for his occupation. The Tribunal was also satisfied that means were available to to enable him to transport his rifles to minimise the risk of damage to them. As for the difficulty in walking into remote areas to set and check dog traps, the Tribunal considered that although a rifle may be more bulky than a handgun to carry, given the legislative context concerning the licensing of handguns, the Tribunal was not satisfied that this of itself would be a sufficient reason to justify a genuine reason. The Tribunal therefore did not consider Mr Berry‑Porter had established he had a genuine reason for a handgun licence.
In addition, given that ultimately the use to which the handgun was going to be put by Mr Berry‑Porter in his occupation as a dogger, destroying vermin, the legislature had made it clear that such a use was not a genuine need. The Tribunal was not, therefore, satisfied that under the relevant regulations Mr Berry‑Porter had a genuine need.
The decision not to issue him with a handgun licence was therefore affirmed and the application dismissed.

Background

This is an application by Mr Berry‑Porter for a review of a decision by the Commissioner of Police (the Commissioner) to refuse him a handgun licence. The decision to refuse the handgun licence was set out in a letter from the Commissioner to Mr Berry‑Porter, dated 11 August 2006.
The application is made pursuant to s 22(2) of the Firearms Act 1973 (WA) (the Act). Mr Berry‑Porter maintains that he requires a handgun to properly carry out his occupation as a dogger and for his personal safety in carrying out his work as a dogger. The Commissioner, however, contends that Mr Berry‑Porter possesses numerous firearms which are suitable for Mr Berry‑Porter's occupation as a dogger. In addition, the Commissioner maintains that as the use of the handgun would be for the destruction of vermin, namely feral dogs, that such a use is not considered a genuine need as defined under the relevant regulations concerning the licensing of handguns.
The matter was the subject of a hearing on 23 July 2007.

Relevant statutory framework

The application is for a review of the decision of the Commissioner in respect to a refusal to grant Mr Berry‑Porter a handgun licence. Section 22(2) of the Act enables a person aggrieved by a decision by or on behalf of the Commissioner to seek a review of that decision.
The Tribunal has, in accordance with s 29(1) of the State Administrative Tribunal Act 2004 (Western Australia) (SAT Act), the same jurisdiction, functions and discretions as those of the delegated officer who made the original decision. Section 27 of the SAT Act makes clear that the hearing before the Tribunal is de novo, and not confined to the matters and information that were before the original decision‑maker.
The powers of the Tribunal according to s 29(3) of the SAT Act are to:
a)affirm the decision; or
b)vary the decision; or
c)set aside the decision, and
d)to make appropriate orders.
The relevant provisions of the Act are as follows:
•The long title of the Act states that it is 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 11(1) provides:
"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;
(b)it is not desirable in the interests of public safety; or
(c)the person is not a fit and proper person to hold the approval, permit, or licence."
•Section 11A(1) to s 11A(3) provide:
"11A. Genuine Reasons 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 —
(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;
(b)it is for use by the person as a member of an organisation approved under this paragraph;
(c)it is for use in hunting or shooting of a recreational nature on land the owner of which has given written permission for that hunting or shooting;
(d)it is required by the person in the course of the person's occupation;
(da)in the case of a prescribed paintball gun, it is required by the person to conduct or engage in paintball in accordance with this Act;
(e)it is to form part of a genuine firearm collection or genuine ammunition collection; or
(f)it is for another approved purpose.
(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 as to the person's reason for acquiring or possessing a firearm or ammunition but also that the particular kind of firearm or ammunition can be reasonably justified."
•Section 11B provides:
"11B. Genuine need required in some cases
(1)The regulations may provide that, for prescribed categories of firearms or ammunition, an approval or permit cannot be granted, and a licence cannot be issued, under this Act to a person unless the Commissioner is satisfied that the person has a genuine need to acquire or possess a firearm or ammunition of that category.
(2)The 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."
•Schedule 3 of the Firearms Regulations 1974 (WA) (Regulations) set out the "Genuine need test" for different categories of guns. Handguns are dealt with in Category H of Sch 3 of the Regulations and the relevant provisions in respect to this matter are as follows:
"Category H

sub‑category	description
H1	a handgun (including an air pistol)
H2	an underwater explosive device

Genuine need test for category H
(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."

Evidence

The evidence in this matter constituted all the documentation filed by both parties prior to the hearing. It also constituted the documents tendered at the hearing. The document included Mr Berry‑Porter's firearms licence which shows that he is licenced to hold the following firearms:
•Rifle Lever repeater Marlin .44;
•Rifle Bolt repeater Browning .300; and
•Rifle Bolt repeater CZ .17
Oral evidence was also provided to the Tribunal at the hearing by Mr Berry‑Porter and Senior Constable Harrison.
A summary of Mr Berry‑Porter's evidence in chief is set out as follows:
•He explained that he worked as a dogger in a private contactor capacity. As such, he works in remote areas of the State. In his job, he is required to kill a variety of vermin, including dingos and feral dogs. He uses a variety of methods to kill these animals including the use traps and guns. He told the Tribunal he has no criminal convictions. He also said that he has a professional shooting background and has also attended a variety of firearm training courses.
•He has been working in Western Australia as a dogger for the last seven years. In that time, he has noticed an increase in the feral dog population and says that he is now culling dogs that weigh anywhere between 18 kilograms to 45 kilograms.
•The terrain in which Mr Berry‑Porter works is in remote desert regions. Some of the terrain is thick scrub, and some is in what Mr Berry‑Porter describes as breakaway country, which has creeks and rocky outcrops. Many of the traps he sets for the dogs need to be set in this terrain. This involves him, therefore, having to camp in remote places and often he is unable to use his vehicles to get into the appropriate territory. He therefore has to walk on foot to set and check traps. Half of his work is carried out having to access this remote tight terrain and half is done using a variety of vehicles such as a 4WD and quad bikes. When he goes into such areas on foot he has to carry a range of items including the traps, any guns he wishes to use, a miniature pick, some spare dirt to mask human scent, some paper to cover the traps, and personal supplies such as water and food. The traps currently used by Mr Berry‑Porter weigh approximately 2 kilograms to 3 kilograms. When he has to walk on foot he can only carry two or three traps. Overall he says that he may carry items weighing up to 15 kilograms.
•Mr Berry‑Porter says that he has been having difficulty using long‑arms, or rifles, in the remote tight terrain in which he has to work. This is especially so when he is trying to set traps in the breakaway terrain. He says that he can't have a rifle with him if he is on his hands and knees setting or resetting traps.
•He also suggests that his rifles have been damaged from time to time when he travels on his quad bikes due to rough terrain and thick scrub.
•He is also concerned that he is unable to keep the rifles secure, as required, when he has to leave his quad bike to move into remote country to set and reset traps.
•He also considers it is dangerous to carry a rifle on his back on a two‑wheel motorbike. He says he knows of a person who became a paraplegic as a result of being knocked off his motorbike onto his back whilst carrying a rifle on his back.
•He maintains that the rifles are bulky and awkward to carry when he has to go into remote territory.
•He also says that when dogs are caught in traps and have not eaten the poison baits – and some just don't – then trying to shoot these dogs with a rifle is extremely difficult. He referred to two DVDs which were placed before the Tribunal showing two different dogs that had been caught in traps but had not eaten the poison bait. The traps had been laid under low‑lying trees. The DVDs demonstrated how aggressive and agitated the dogs were when trapped. Mr Berry‑Porter claims that this is not an unusual situation and trying to use a rifle with a telescopic sight to dispose of dogs in such situations can be difficult. Mr Berry‑Porter raised concerns of using a rifle in such situations and the bullet passing through the animal, hitting the steel trap and causing shrapnel to fly around. He said that he had been hit by shrapnel in such circumstances. He also suggests that it is difficult to kill the dogs with one shot and he has, on occasions in such circumstances, severely injured dogs which he considers is not humane.
•He also describes the feral cross‑breed dogs being unafraid of humans. He maintains that they can be very large dogs who stand their ground. He says that his personal safety has been threatened on various occasions where these dogs have come upon him and he has not had ready access to his rifle.
•He maintains that for all these reasons he believes it is mandatory in his occupation as a dogger to be able to use a handgun.
In cross‑examination, Mr Berry‑Porter stated:
•That he can choose the type of bullet for use in his rifles, and for his .44 Marlin he uses a soft point and that type of bullet has similar ballistic characteristics to that of a pistol round.
•He also confirmed that for many inaccessible areas, aerial baiting is used, but it is not effective.
•When he works difficult and remote areas, he said that he and his wife use an off‑road van which he tows with his 4WD. They set up general camp and from there he uses his quad bikes. The rifles he takes when he is culling dogs is the .243 and sometimes a .44. He also explained that he uses telescopic sights. He said that variable scopes can be purchased which have no power at all which overcomes any problem with parallax error. He maintained, however, that irrespective of the type of telescopic sight that is used, if a dog is caught in a trap and is agitated it can be very difficult to get a proper aim on the animal.
•In respect to handgun use, Mr Berry‑Porter stated that he hasn't used handguns in Western Australia but has experience using them when he lived in Queensland.
•He also indicated that a handgun would allow him to more easily dispatch dogs that are caught in traps which haven't died from eating the poisoned bait and where he may not have a rifle at the time he comes upon the dog.
The Commissioner called Senior Constable Steven Frederick Harrison. A summary of his evidence is set out as follows:
•Snr Constable Harrison stated that he had professional and social experience with firearms. He has been a member of the weapons training unit, the operational safety and tactics training unit for 12 years and has formal qualifications in respect to firearms and other tactical equipment. His diplomas covering a variety of areas were tendered which included:
•Western Australia Police Service Diploma in Police Tactical Training 2000;
•Western Australia Police and Australian National Training Authority Certificate IV in Police Defensive Tactics and Training Instructors 1996;
•Western Australia Police Academy Diploma of Training and Assessment Systems 2001;
•Western Australia Police Academy Cert IV Assessment and Workplace Training 2000;
•Glock Pistol Transitional Instructors Workshop 1995;
•Glock Armourers' Course 1995;
•Smith & Wesson Academy Pistol Instructor Course 1996;
•Smith & Wesson Sigma Pistol Maintenance Course 1996;
•Western Australia Police Certificate of Recognition as Instructor in Firearms, etc 1992;
•Snr Constable Harrison explained that he had been a firearms user since the age of 8, and had been involved in a variety of military associations including the Army Cadets and Army Reserve's Officer in Western Australia. He has also been a member of several firearm related clubs including the Western Australia Police Pistol Club. He has also assisted pastoralists whilst stationed throughout Western Australia in controlling and hunting vermin.
•His experience also included carrying firearms on two‑wheel and four‑wheel motorbikes. He explained there were a variety of methods of transporting firearms whilst using these motorbikes including U‑shaped brackets, side scabbards and shoulder slings. Photographs of these various methods were tendered without objection.
•When questioned about the accuracy of a long‑arm, or rifle, as opposed to a short‑arm or handgun, Snr Constable Harrison was of the view that a long‑arm was infinitely more accurate, mainly due the ability to hold a long‑arm with more stability.
•As to the shortest long‑arm that can be used, Snr Constable Harrison indicated that it would be possible to obtain a long‑arm which is just under 1 metre in length.
•In respect to the issue of over‑penetration, Snr Constable Harrison stated that problems with over‑penetration using a pistol would be identical to that when using a .44 rifle. He also considers that taking a second shot at a dog where the first shot had not dispatched the dog, and a person was wanting to dispatch the dog as quickly and humanely as possible, can be done more quickly with a rifle than a handgun. He said a handgun has the propensity to jump substantially more than a rifle. So, to readjust for a second shot takes less time with a rifle.
•He also stated that he thought a .17 rifle could dispatch dogs at a range of zero to 50 metres.
•In respect to the DVDs of the dogs caught in traps as presented by Mr Berry‑Porter, Snr Constable Harrison was of the view that a shotgun would probably be the preferred weapon for a dog that was disturbed and moving, and that appropriate ammunition could be obtained to dispatch a dog.

Under cross‑examination Snr Constable Harrison stated:
•That a shotgun was different to a rifle and handgun, as a shotgun projects multiple pellets. He agreed that it was possible if a shotgun was used to shoot a dog, not all the pellets would go into the dog.
•He was then asked whether in using a shotgun it was possible that some of the pellets could strike a steel trap and ricochet. He answered by saying that under the circumstances identified in the DVDs he thought it would be extremely unlikely but possible.
•He agreed that a shotgun was a long‑arm and on questioning in respect to the difficulties that may be associated with carrying a long‑arm, he stated that it would depend on the length of the long‑arm, going on to state that firearms are not manufactured in standard lengths and, on application, a long‑arm can be modified to quite a short length.
•On questioning in respect to the type of firearms Mr Berry‑Porter was licensed to use, Snr Constable Harrison stated that he considered each one was suitable for dispatching dogs at close range. In respect to the risk of over‑penetration, he accepted that a bullet may pass through a dog in a trap at close range. In respect to a .44 rifle, he thought it unlikely that it would ricochet off the trap but did suggest that predicting all the possible variables was too great for him.
•He did concede that he has not worked as a dogger nor has he ever had to shoot a dog in a trap.
On re‑examination, Snr Constable Harrison stated:
•He also indicated that in respect to Photograph No 3 which shows him seated on a two‑wheel motorbike with a rifle in a U‑shaped mount, he thought it would be possible to obtain a rifle that would fit within the span of the handlebars of the motorbike in question, or come close to doing so.
•He indicated that if a person was endeavouring to more humanely dispatch a dog and avoid over‑penetration it was possible to select ammunition that had less potential to exit the body of an animal and be more frangible on impact.
On questioning from the Tribunal, Snr Constable Harrison stated:
•That there was a possibility of over‑penetration no matter whether a rifle, shotgun or handgun was used; and
•He also explained that to avoid the risk of over‑penetration, he thought Mr Berry‑Porter's .17 MHR may be the firearm least likely to cause over‑penetration and would not jump around once the trigger was discharged.

Submissions of the parties

Both parties filed statements of issues, facts and contentions which are summarised below.
Mr Berry‑Porter's statement of issues, facts and contentions contends in summary that:
•he has a genuine need for acquiring a handgun in his occupation as a dogger. He requires it to humanely destroy wild dogs in the course of his occupation, to facilitate safe transport of a firearm and to protect himself against wild dogs.
•although destroying wild dogs is a collateral use of the firearm and his genuine need is for use in his occupation, the restrictions for Category H firearms, under the Regulations, refers to applications where the sole requirement of the firearm is for destructions of stock or vermin.
The WA Police's statement of issues, facts and contentions contends:
•In such an application, it is necessary for Mr Berry‑Porter to satisfy the Tribunal that the requirements of s 11 of the Act which condition the grant of the licence have been met.
•In this case, the WA Police contend that a handgun is not endemic to the occupation as a dogger and it is sought as a matter of convenience over that of a rifle.
In addition to the written submissions, the applicant's counsel made oral submissions in summary as follows:
•Mr Berry‑Porter maintains that he needs a handgun for use in his occupation. It was argued that although it may be possible to design a firearm for any particular task, Mr Berry‑Porter's occupation is one where a short, handy firearm is something he requires and he has a genuine reason for having such a firearm.
•The applicant's counsel used the analogy of security guards who are entitled in their job to carry a handgun because they are generally involved in carrying things. Mr Berry‑Porter is in a similar position.
In respect to the applicable Regulations, the applicant's counsel submitted that the reason this exclusion was put in the Regulations was to prevent farmers using handguns to kill foxes and put down sheep. It was suggested that, but for this provision, every farmer in the State would have a gun. The applicant needs a handgun for his occupation and so he is in a different position to that of a farmer.
The Commissioner's oral submissions in addition to the written submissions can be summarised as follows:
•The applicant uses his firearms for destroying vermin, so he cannot establish a genuine need under the relevant regulations;
•There is no pressing need for such a firearm. It may be handier, or more convenient, but he has been able to carry out his job as a dogger for seven years without the need of such a weapon;
•As to the safety aspects, the Commissioner maintains that the dangerous situations confronting Mr Berry‑Porter are all a matter of choice. He could choose not to set his traps in places where he is endangered; and
•As to the intent in respect to the relevant Regulations, it was explained that these more stringent provisions in respect to handguns were designed following the Port Arthur massacre. The intent is to remove this type of weapon from the community and the Regulations make it clear the legislature does not want people to have handguns for the purpose of killing vermin.

Consideration

The review of the decision to refuse to issue Mr Berry‑Porter with a handgun licence is a hearing de novo.When reviewing this decision the Tribunal may consider all credible, relevant and significant information. It can have regard to evidence that may be indirect or hearsay or would not fully satisfy the opinion rule that governs expert witnesses.
Further, under the Act, the applicant in review proceedings, bears a practical onus to satisfy the Tribunal that the relevant provisions of the Act have been met: (see Wignall v Commissioner of Police [2006] WASAT 206 [279]‑[285]).
The two issues identified by both parties for determination are:
1)Whether Mr Berry‑Porter has established a genuine reason for acquiring a handgun pursuant to s 11A of the Act; and
2)Whether Mr Berry‑Porter has satisfied the genuine need test for Category H firearms (handguns) under the Regulations.
To establish a genuine reason for a handgun, Mr Berry‑Porter must satisfy the Tribunal that it is required in the course of his occupation and that a handgun can be reasonably justified (see s 11A(2)(d) and s 11A(3)).
Mr Berry‑Porter has worked as a dogger in WA for almost seven years. His work requires him to destroy dingos and feral dogs. His work is carried out in the remote and inhospitable regions of WA. He has noticed during the last seven years an increase in the number of cross‑breed feral dogs. These dogs are domesticated dogs that have been let into the wild. They often breed with dingos. Mr Berry‑Porter considers these dogs to be larger than dingos and less timid than dingos.
He has noticed these dogs are less likely, when caught in the traps he sets, to eat the poisoned baits and are very often still alive when he comes across them in the traps he has laid. As a result, he will often have to try to kill them using one of his rifles.
He is finding it difficult to use his rifles to undertake this task. The reason for this is that the traps are often in dense scrub. Further, the dogs, when trapped, are obviously agitated and trying to take aim can be difficult.
In addition, he is concerned as to the possibility of bullets fired using his rifles over‑penetrating the body of the animal and ricocheting off the steel traps.
He is currently licenced to use the following firearms:
•Rifle Lever repeater Marlin .44;
•Rifle Bolt repeater Browning .300; and
•Rifle Bolt repeater CZ .17
He considers these firearms are not appropriate for the use in dispatching these dogs in these circumstances and considers a handgun should be available for his use.
He also is having difficulties transporting his rifles into the areas he has to work, either due to there being damage on his motorbikes or being unable to carry them on foot when laying traps in more remote areas.
Again, he considers for these reasons a handgun would be appropriate.
The factors to be taken into account when making the assessment as to genuine reason and genuine need for a particular firearm must be judged in the legislative context (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355). The legislature has imposed a stringent licensing regime in respect to handguns. Not only must a person have a genuine reason for seeking such a firearm but they must also establish, under the relevant regulations, a genuine need for a handgun.
One of the key concerns raised by Mr Berry‑Porter is the possibility of over‑penetration and ricochet of bullets fired from one of his rifles when dispatching a dog caught in a steel trap. Indeed, Mr Berry‑Porter described an occasion when this has occurred. However, both parties gave evidence that the risk of over‑penetration in such circumstances can be minimised by selection of the most appropriate ammunition. Further, although it may be difficult to properly sight a dog that is caught in a trap and moving, that difficulty is not necessarily overcome by the use of a handgun. Snr Constable Harrison explained that it can be more difficult to sight an animal for the purpose of dispatching it by use of a handgun, than by use of a rifle. Finally, and more importantly, based on Snr Constable Harrison's evidence, the Tribunal was satisfied that the risk of over‑penetration and possible ricochet may be the same whether a rifle or handgun is used in these circumstances. These are all factors that can be taken into account under s 11(3) of the Act when considering whether a person has a genuine reason for acquiring a particular kind of firearm.
As to the risk of damage to the rifles when transporting them in the course of his work as a dogger on his motorbikes, the Tribunal again accepted the evidence of Snr Constable Harrison, that appropriate racks are available for motorbikes to enable the safe transportation of rifles, including side scabbards, which may minimise the risk of damage to the rifles.
It is accepted that it is difficult for Mr Berry‑Porter, when having to work on foot when setting traps in remote country, to carry his traps, a rifle, as well as other supplies. However, although a handgun might be easier to transport or carry, the decision to grant a handgun licence must be judged in the legislative context. The legislature has sought to impose numerous restrictions on the licensing of handguns. When judged in that restrictive legislative context, the Tribunal does not consider that the difficulty of carrying a rifle in such remote areas is of itself sufficient to establish a genuine reason for a handgun licence to be issued to Mr Berry‑Porter in his occupation as a dogger.
The Tribunal considers for the reasons set out above, that although Mr Berry‑Porter's work as a dogger may be made easier if he were licenced to use a handgun, it is not satisfied that he has established a genuine reason for a handgun licence.
The remaining issue, therefore, is whether Mr Berry‑Porter has a genuine need for a handgun in his occupation as a dogger. The Regulations provide that a person does not have a genuine need to acquire or possess a handgun unless he can show that his rifles are unsuitable or inadequate for the purpose for which the firearm is required. For the reasons expressed above, as to genuine reason, the Tribunal is not satisfied that the rifles that Mr Berry‑Porter is currently licenced to hold are unsuitable or inadequate in his occupation as a dogger. The Regulations also provide that a person does not have genuine need if a handgun is required for destroying stock or vermin. It could be argued that some of the reasons Mr Berry‑Porter requires a handgun relate to issues of personal safety. He has explained that there have been some occasions where he has been set upon by dogs whilst he has been trying to dispatch other dogs caught in his traps. He also described an incident in his written application where he had to hide in a tree to escape a scrub bull. However, he did confirm that each of these animals are vermin and he is authorised to dispatch them. He is a declared animal operator, or "dogger", which requires him to destroy vermin. Whether it be to assist in protecting himself from attacks by wild dogs, to enable him to set and check traps in remote country more easily or to dispatch dogs caught in traps that have not taken the poisoned bait, the ultimate purpose to which a handgun would be used by Mr Berry‑Porter would be to kill vermin.
The Regulations restricting the licensing of handguns do not indicate that the restriction only applies where the sole purpose of the use of the handgun is for destruction of vermin. However, even if such an interpretation was applied, it seems to the Tribunal that, in Mr Berry‑Porter's case, the ultimate purpose for which he requires the handgun is in his occupation as a dogger, to destroy wild or feral dogs which are vermin.
It was contended by Mr Berry‑Porter's counsel that the purpose of the restriction in the Regulations was to prevent every farmer in Western Australia from having a handgun to use in destroying stock or vermin. However, counsel confirmed that he had been unable to find any references in Hansard to the second reading speeches which supported this contention.
The Regulations must therefore be given their ordinary and proper meaning. If the legislature had intended to prevent every farmer in Western Australia being able to use a handgun to destroy livestock or vermin, it could have easily done so, by including reference to such an occupation in Sch 3 Category H of the Regulations. Those Regulations specifically state that a person does not have a genuine need for a handgun if it is required for destroying vermin. 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.
Accordingly, the decision not to issue Mr Berry‑Porter a handgun licence is affirmed and the application is dismissed.

Orders

1.The decision of the Commissioner of Police made 11 August 2006 refusing Mr Berry‑Porter a handgun licence is affirmed.
2.The application is dismissed.

I certify that this and the preceding [48] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS J HAWKINS, MEMBER