Clyne v Commissioner of Police, New South Wales Police

[2004] NSWADT 52

CITATION:	Clyne v Commissioner of Police, New South Wales Police [2004] NSWADT 52
DIVISION:	General Division
PARTIES:	APPLICANT George Courtenay Clyne RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	033307
HEARING DATES:	28/01/2004
SUBMISSIONS CLOSED:	01/28/2004
DATE OF DECISION:	03/11/2004
BEFORE:	Rice S - Judicial Member
APPLICATION:	Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Firearms Act 1996
CASES CITED:	Christianos v Commissioner of Police [1999) NSW ADT 66 Perder Investments Pty Limited v Lightower (1990) 101 ALR 151
REPRESENTATION:	APPLICANT In person RESPONDENT M Buchanan, solicitor
ORDERS:	The Commissioner's decision to refuse the issue of a permit is affirmed

1 For the reasons given below, the decision of the Commissioner of Police is affirmed. That means that Mr Clyne is unsuccessful in his application. .

Background

2 Mr Clyne holds Firearms Licence No 405851014, in categories A, B and C. That licence was most recently re-issued on 15 March 2003, and remains current. It is with this licence that Mr Clyne uses the longarm rifle referred to below.

3 Mr Clyne was the holder of a Primary Production Pistol Permit No 405989110 which was issued on 17 June 1998. On 16 July 2003 he applied for the re-issue of the permit, and on 18 August 2003 the Commissioner of Police gave him Notice of Refusal to re-issue the permit, along with a Statement of Reasons for the refusal. After an unsuccessful internal review Mr Clyne applied to this Tribunal for review of the Commissioner’s decision to refuse to issue the permit.

4 The permit authorised Mr Clyne to use a category H firearm – a pistol – for primary production purposes. The Commissioner stated in his reasons for refusing the permit that he “does not consider it appropriate for a permit to be issued for the purpose of possessing and using category H firearms by reason of carrying out duties as a primary producer.”

The relevant law

5 The Commissioner’s power to issue a permit is in s28 of the Firearms Act 1996 (NSW) (‘the Act’):

The Commissioner may issue permits for any one or more of the following purposes:
(a) to authorise a person to acquire a firearm,

(b) to authorise the possession or use of firearms by minors in accordance with section 32,

(c) to authorise the possession or use of firearms in such circumstances as may be prescribed by the regulations (including film or theatrical productions or other artistic purposes),

(d) to authorise the acquisition, selling or transfer of firearms in such circumstances as may be prescribed by the regulations,

(e) to authorise the shortening or conversion of firearms,

(f) to authorise the use of a firearm (being a firearm to which a category A, category B or category H licence applies) that is part of a licensed firearms collection in order to test it, or on a special occasion as specified in the permit,

(g) to authorise the possession or use of firearms in such circumstances as the Commissioner considers appropriate,

(h) to authorise anything else that is required by this Act or the regulations to be authorised by a permit.

6 Mr Clyne seeks a permit pursuant to the Commissioner’s discretion in s28(g). The licensing provisions of the Act make no provision for the issue of a licence for a Category H firearm for the purpose of primary production, hence Mr Clyne’s reliance on the Commissioner’s discretion to issue a permit.

Commissioner’s approach to the discretion

7 The Commissioner filed with the Tribunal, and I admitted into evidence, a letter dated 27 August 2003 from Mr Garry Richmond, manager of the Firearms Registry of the New South Wales Police, addressed to the Firearms Registry staff. The letter is headed “Commissioner’s Permits” and refers to the power the Commissioner has, pursuant to section 28(g) of the Firearms Act, to issue a permit to authorise the possession and use of firearms in such circumstances as the Commissioner considers appropriate. The letter confirms that its author, Mr Richmond, has been delegated the Commissioner’s functions under the Firearms Act, and goes on to say:

I advise that I do not consider it appropriate for a permit to be issued under section 28(g) for the purpose of possessing and using a category H firearm (a pistol) by reason of carrying out duties as a primary producer or for the purpose of recreational hunting/vermin control or for vertebrate pest animal control. (Emphasis in the original).

8 In his Statement of Reasons the Commissioner, referring to Mr Clyne’s extensive submissions regarding his need to control feral pigs, states: “I do not dispute that you have a problem with these animals on your property”. Having noted that Mr Clyne is not entitled to the issue of a category H firearms licence for primary production purposes, as is undoubtedly the case, the Commissioner goes on to address the question of whether, in his discretion, he ought issue a permit for a category H firearm for primary production purposes.

9 On this point he says: “I am satisfied that it would not be appropriate to issue you with a permit ‘outside the licencing restrictions and provisions’ of the Act”. In so saying, the Commissioner cites a decision of this Tribunal: Christianos v Commissioner of Police (1999) NSW ADT 66, at paragraph 19. The relevant parts of the paragraph cited are:

The respondent submitted, and I accept, that t he intent of the firearms legislation is that a permit be issued in such cases where the granting of a licence is not appropriate or possible, or where other or special circumstances exist outside the “licencing provisions and restrictions”. The respondent added that applying for a permit to possess and use a firearm should not be used as a means of circumventing the restrictions that apply to the granting of a license.

10 I note that while the Deputy President explicitly accepted the respondent’s contention in the first sentence of paragraph 19, she merely notes without accepting the respondent’s contention in the second sentence. I note further that the decision in Christianos did not involve consideration of the Commissioner’s discretion to issue a permit, because in the Tribunal’s view that power did not arise on the facts: Mr Christianos ought to have been an applicant for a licence, not a permit.

11 Based on the observations of the Tribunal in Christianos, the Commissioner’s submission is that applying for a permit to possess and use a firearm is a means of circumventing the restrictions that apply to the granting of a licence. The solicitor for the Commissioner argued that Mr Clyne’s application for a permit is an effort to circumvent the licencing provisions, and to be able to lawfully use a firearm “by the back door”.

12 The solicitor for the Commissioner submitted, quite rightly as an observation on any attempt to circumvent the licencing provisions, that to do so would be contrary to the spirit of the Act. However, I do not accept that an application for a permit must necessarily be characterised as an attempt to circumvent the licencing provisions. The permit provisions must have some work to do in the Firearms Act. Clearly they are intended to operate “in such circumstances as the Commissioner considers appropriate”, and those circumstances are not limited by the circumstances in which a licence would be issued.

13 The Act makes clear that a licence will be issued only in limited circumstances. However, a permit might nevertheless be issued “in such circumstances as the Commissioner considers appropriate”. It may be that those circumstances are circumstances for which a licence will not be issued. Whether through the issue of a licence or of a permit, a person is able to use a firearm lawfully. The issue of a permit is not circumventing the restrictions on the issue of a licence; rather, it is supplementing those provisions with a discretion in the Commissioner, according to circumstances.

14 It is evident from Mr Richmond’s memo that the Commissioner has formed a view that it will never, in any circumstances, be the case that a permit will be issued for possession and use of a category H firearm for the purpose of primary production.

15 First, this appears problematic, as a matter of good sense: there are primary producers and primary producers. A small scale grape grower is likely to have less need, if any at all, for a category H pistol, but a sheep farmer may well have such a need. As Mr Clyne said in his written submission to the Tribunal: “Some primary producers have a special need for a category H firearms permit which the Commissioner would consider appropriate for a permit to be granted for a category H firearm”.

16 However I think the Commissioner’s position is more problematic as a question of law. It offends against the ‘rule against fettering’.

17 Aronson and Dyer (Judicial Review of Administrative Action, Sydney LBC Information Services, 2000, 2nd ed) describe the rule against fettering in this way. It is permissible for the Commission to “at least be ‘guided’ by a predetermined rule, provided, of course, that the guidance rule conforms to the Act’s subject matter, scope, purpose and detail” (at page 236). That predetermined rule must be a lawful one and it is not lawful if it “omits considerations which the decision maker is bound to take into account (at page 236).

18 They go on to say at pp 237-238: “Most of the cases have stressed that the predetermined ‘rule’ must never be so inflexible that the decision maker refuses to listen to an argument for exemption. In other words the rule against fettering requires guidance rules either to contain their own waiver rule within them, or to be capable of being put to one side where an individual argues against its application to their case”(emphasis in the original).

19 In Perder Investments Pty Limited v Lightower (1990) 101 ALR 151 the relevant authority decided that the discretion to allow the transfer of commercial fishing licences would not be exercised for any licence to fish for prawns; the decision-maker “shut his ears” to the application. The case is cited by Aronson and Dyer as illustrating a policy which was unlawful because it omitted considerations by stating that a discretion will never be exercised in certain cases.

20 In this case the Commissioner has promulgated a ‘guidance rule’ in terms set out in Mr Richmond’s memo. Similarly to the approach in Perder Investments, the Commissioner in this matter has issued a ‘guidance rule’ that the discretion to issue a permit for the possession and use of firearms will never be exercised for any permit to possess and use a category H firearm for the purpose of primary production.

21 There is no suggestion of a waiver within that guidance rule. There is no suggestion in the Commissioner’s Statement of Reasons that he was prepared to countenance putting the guidance rule to one side on the basis that Mr Clyne might argue against its application in his circumstances; despite acknowledging the force of Mr Clyne’s circumstances, the Commissioner merely applied the guidance rule and refused a permit.

22 The Commissioner’s ‘guidance rule’ offends the rule against fettering. The Commissioner cannot properly give a direction to his delegates the effect of which is not to guide the exercise of the discretionary power but to prevent its exercise absolutely. The consequence of the decision-maker’s acting on the direction of the Commissioner was that he ‘shut his ears’ to Mr Clyne’s application.

23 I would therefore not approach Mr Clyne’s application in the same way that the Commissioner approached it. My determination as to the correct and preferable decision is arrived at by giving effect to the discretion in the legislation.

24 In doing so I take account of the Commissioner’s view as to the undesirability of a permit being issued for the possession and use of a category H firearm, and of his reasoning for arriving at that view. At the same time I take account of the circumstances of Mr Clyne as set out in his application and his evidence before me. I will turn my mind to the particular circumstances and will determine whether in my view the issue of a permit is appropriate in such circumstances.

The Commissioner’s argument

25 I note that while there are restrictions on the issue of a permit in s29 of the Act, the Commissioner does not rely on any of those restrictions as they relate to Mr Clyne. There is, for example, no suggestion that he is not a fit and proper person, or that he has been convicted of relevant offences or made the subject of relevant orders.

26 The Commissioner does however rely on the ‘public safety’ and ‘public interest’ considerations. He argues that those issues, that unarguably underpin the legislation and guide its interpretation and application, outweigh any need Mr Clyne has arising from his circumstances.

27 The Commissioner makes the point that the licencing regime of the Act creates a very high threshold for the issue of a firearms licence. He submits that the issue of a permit should be informed by an awareness that the Act clearly anticipates the issue of a category H firearm in limited circumstances. Specifically, the Commissioner makes the point that a licence for a category H firearm would not be issued for primary production purposes. Thus, he submits, an application for a category H permit should be approached with considerable circumspection.

28 This is, I think, the source of the misguided submission that the application for a permit is an attempt to circumvent the licencing provisions. Rather, the application for a permit is a request to the Commissioner to consider particular circumstances and to decide whether, despite a licence not being available for the particular purpose, a permit might be made available for the same purpose because of those circumstances. I agree however that the approach taken in the Act to licensing is a relevant consideration in exercising the discretion to issue a permit.

29 I turn therefore to the circumstances.

The applicant’s circumstances

30 Mr Clyne’s circumstances are that he had been making lawful use of a category H firearm, under the issue of a permit, for some years for primary production purposes. His circumstances have not changed, and he submits that the Commissioner’s view of his circumstances similarly should remain unchanged and that he should continue to be eligible for a permit. There is some force in this argument. At the same time the application for a re-issue of a permit is an application that must be considered afresh, and it is both possible and proper that a different view can be reached under the same legislation on this occasion.

31 Mr Clyne’s evidence is that he needs a firearm to manage feral pigs. He has a firearm but it is a longarm rifle and the particular circumstances in which Mr Clyne operates makes it both easier and safer to use a pistol. When he uses motorbikes or a four-wheel drive he can use the rifle, but he cannot cover all his land in that way. He needs to ride horses through difficult terrain – which he has illustrated in photographs he provided to the Commissioner and the Tribunal – and when there are floods. He does not carry a rifle on a horse as it is difficult to carry load and shoot; a pistol is more convenient to use when on a horse. Although he actually prefers to use a longarm rifle as it is more accurate and has a bigger caliber, he says that he must use a pistol is when he is riding in floods or in close country.

32 Mr Clyne acknowledges that over the last three months he has had no reason to use the pistol, and that there are time when he would use it perhaps only once, and perhaps three or four times, a year. It is really only in floods or in close country that he needs to use it. He doesn’t need to use it very often, but it is convenient when he does. And Mr Clyne emphasis that the need, when it arises, is genuine. It is, he says, a good, clean, convenient method of shooting for a need that arises “now and again”. Mr Clyne reiterated that use of a longarm is dangerous while riding a horse.

33 Mr Clyne acknowledges that authorised campaigns by the Pastoral Protection Boards to address the feral pig problem do happen from time to time, but says that he nevertheless he must engage in his own culling. The Commissioner did not dispute this.

34 Mr Clyne notes that a number of other farmers keep pistols and have permits for them. The Commissioner advises the Tribunal that more than 400 farmers are currently seeking review of a refusal to issue them with permits.

35 The Police Commissioner submitted that Mr Clyne’s need arises only rarely, and that Mr Clyne has conceded that he could carry a rifle in a scabbard while on a horse on the rare occasions that he needs it.

Reasoning

36 It is the case that the Firearms Act has adopted an approach to the possession and use of pistols which make them harder to obtain than longarm rifles. The circumstances in which a licence can be issued for a pistol are limited. I agree that it follows that circumstances in which a permit for a pistol will be issued should be viewed with considerable caution and conservatism. It will also be viewed in light of the paramount considerations of public safety and the public interest.

37 The legislation does not acknowledge that primary production can constitute a ‘special need’ for the purposes of a category H firearm licence. This may well be overly restrictive, or may fail to properly reflect the range of special needs faced by primary producers, and could warrant legislative review. It is however the state of the legislation. It does indicate the narrow basis on which the Firearms Act anticipates category H pistols will be possessed and used.

38 Nevertheless a permit can be issued for a pistol for primary production, when appropriate in the circumstances. The licensing provisions do not, on a proper construction of the Act, limit the range of activities for which a permit may be issued – the only limitation is the Commissioner’s assessment of what is appropriate in the circumstances, subject to any proper guidelines for the exercise of that discretion. If the licensing provisions did set the outer limits of the activities for which a permit could be issued then there would be no need for a provision such as s28(g).

39 Mr Clyne’s need for a pistol is only occasional. Alternative methods, although less convenient, are available. Informed by the approach taken by the Act to the issue of licences for primary production, by the paramount concern for public safety, and by Mr Clyne’s evidence as to when and how his need for a pistol arises, I am not satisfied that Mr Clyne’s circumstances are such that the issue of a permit is appropriate.

40 My view might be different were Mr Clyne’s need more frequent or constant, and the alternatives were non-existent or were inherently dangerous. I do not understand from the evidence that that is the case.

Decision

41 Accordingly, on reasoning different from that of the Commissioner when arriving at the original decision, I affirm the Commissioner’s decision to refuse the issue of a permit requested by Mr Clyne.