Commissioner of Police, New South Wales Police v Martin (GD)

[2007] NSWADTAP 61

Appeal Panel - Internal

CITATION:	Commissioner of Police, New South Wales Police v Martin (GD) [2007] NSWADTAP 61
PARTIES:	APPELLANT Commissioner of Police, New South Wales Police RESPONDENT Paul John Martin
FILE NUMBER:	079020
HEARING DATES:	19 June 2007
SUBMISSIONS CLOSED:	17 July 2007
DATE OF DECISION:	10 October 2007
BEFORE:	O'Connor K - DCJ (President); Molony P - Judicial Member; Bolt M - Non Judicial Member
CATCHWORDS:	Prohibited Weapons - Theatrical Weapons Armourer Permit - Genuine Reason Requirement - Purpose and Operation - Misapplication of Policy - Reconsideration - Weapons Prohibition Act 1998 ss8, 11
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	063225
DATE OF DECISION UNDER APPEAL:	04/02/2007
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms (General) Regulation 1997 Firearms Act 1996 Interpretation Act 1987 Veterinary Practice Act 2003 Weapons Prohibition Regulation 1999 Weapons Prohibitions Act 1998
CASES CITED:	Osborne v Commissioner of Police, NSW Police Service [2000] NSWADTAP 10 Commissioner of Police, New South Wales Police v Macdonald (GD) [2007] NSWADTAP 13
REPRESENTATION:	APPELLANT W Pisani, solicitor, New South Wales Police RESPONDENT P Cuddy, agent
ORDERS:	1. Appeal dismissed.; 2. Order the Commissioner to reconsider the decision of 9 May 2007 in light of these reasons and those of the Tribunal below, and to advise the appellant of the decision within 28 days.; 3. Tribunal to list the review application for further directions if the applicant wishes to continue to proceed with the application for review.

1 The Weapons Prohibition Act 1998 (the WPA) regulates the circulation of ‘prohibited weapons’. ‘Prohibited weapons’ are defined in s 4 of the WPA to mean anything that is described in Schedule 1. The Schedule divides these weapons into four general categories, which we describe in this decision as Categories 1 to 4, being (1) ‘Knives’, (2) ‘Miscellaneous Weapons’, (3) ‘Replicas, imitations, concealed blades etc.’ and (4) ‘Miscellaneous articles’. Under each of these main headings, there are numerous weapon types, in total 45. It is an offence to possess, use or deal in other ways with a prohibited weapon without a permit granted by the administrator, the Commissioner of Police. Holders of permits are subject to a number of general and specific offence provisions.

2 This appeal has, as its origins, an application by the respondent, Mr Martin, for renewal of a permit. The Commissioner initially refused to renew the permit (decision 22 May 2006). Mr Martin applied for review by the Tribunal. The matter has since had a complicated history.

3 The present position is that Mr Martin has a permit, but it carries restrictions with which he is dissatisfied. The Commissioner is the appellant, as the Commissioner is dissatisfied with the reasoning of the Tribunal below, which endorsed a number of the criticisms made by Mr Martin, and remitted the matter to the Commissioner for reconsideration in accordance with the Tribunal’s reasons. The Commissioner disputes the Tribunal’s reasons, and has brought this appeal.

Background

4 The WPA creates three permit categories: the General Permit, the Weapons Dealer Permit and the Theatrical Weapons Armourer Permit (see s 8). Section 8(2) provides that the regulations may prescribe different types of General Permit. The regulations (Weapons Prohibition Regulation 1999 (the WPR), Part 3) list 14 types of General Permit.

5 The permit sought by Mr Martin was the Theatrical Weapons Armourer Permit (henceforth called the TWA Permit). He had held such a permit for many years. Theatrical armourers supply weapons for use in theatrical productions such as plays, television programs and films involving the use of weapons. They provide training in the use of the weapons. They supervise stage hands, film crew and actors in the safe handling of these weapons.

6 It is clear that under the WPA that in issuing a General Permit of whatever type the Commissioner must ensure that the authority conferred meets the general requirement laid down by s 8 of the WPA as well as the more specific requirements found elsewhere in the WPA and in the WPR.

7 The WPA Permit is one of three categories of permit created by the WPA. Section 8 provides:

‘(1) The categories of permits and the authority they confer are as follows:

General permit

Authorises the holder of the permit to possess or use a prohibited weapon of the kind specified in the permit, but only for the purpose established by the holder as being the genuine reason for possessing or using the prohibited weapon.

Weapons dealer permit

Authorises the holder of the permit, and any authorised employee, to possess, buy, sell and manufacture prohibited weapons of the kind specified in the permit, but only in the course of carrying on business as a weapons dealer and only at the premises specified in the permit (or at such other premises as may be approved).

Theatrical weapons armourer permit

Authorises the holder of the permit, and any authorised employee, in the course of carrying on business as a theatrical weapons armourer:

(a) to possess, use, buy, sell and manufacture prohibited weapons of the kind specified in the permit, and

(b) to supervise and train persons who are involved in a cinematographic, television or theatrical production in the use of prohibited weapons to which the permit relates.

The authority conferred by a theatrical weapons armourer permit also authorises those persons who are involved in the cinematographic, television or theatrical production concerned to possess and use prohibited weapons to which the permit relates, but only while under the supervision of the holder of the permit or an authorised employee.’

8 It will be seen that it is necessary that to be issued with a General Permit the applicant must possess a ‘genuine reason’ for possessing or using the prohibited weapon. The importance of the ‘genuine reason’ within the regulatory scheme is reflected in the WPA’s objects at s 3(2)(a). Section 3 provides:

‘ 3 Principles and objects of Act

(1) The underlying principles of this Act are:

(a) to confirm that the possession and use of prohibited weapons is a privilege that is conditional on the overriding need to ensure public safety, and

(b) to improve public safety by imposing strict controls on the possession and use of prohibited weapons.

(2) The specific objects of this Act are as follows:

(a) to require each person who possesses or uses a prohibited weapon under the authority of a permit to have a genuine reason for possessing or using the weapon,

(b) to provide strict requirements that must be satisfied in relation to the possession and use of prohibited weapons,

(c) to provide an amnesty period to enable the surrender of prohibited weapons.’

9 This matter is taken up again at s 11 of the WPA which requires the Commissioner not to issue a permit to possess and use a prohibited weapon unless a genuine reason for having the permit is shown. Section 11 provides:

‘ 11 Genuine reason

(1) The Commissioner must not issue a permit authorising the possession or use of a prohibited weapon unless the applicant has, in the opinion of the Commissioner, a genuine reason for possessing or using the weapon.

(2) Without limiting the reasons that the Commissioner may be satisfied are genuine reasons, the Commissioner may determine that an applicant has a genuine reason for possessing or using a prohibited weapon if the applicant:

(a) states that he or she intends to possess or use the weapon:

(i) for any one or more of the reasons set out in the Table to this subsection, or

(ii) for any other reason prescribed by the regulations, and

(b) is able to produce evidence to the Commissioner that he or she satisfies the requirements (if any) specified in respect of any such reason.

Table

Reason: recreational/sporting purposes

The applicant must demonstrate that the recreational or sporting activity concerned requires the possession or use of the prohibited weapon for which the permit is sought.

Reason: business/employment purposes

The applicant must demonstrate that it is necessary in the conduct of the applicant’s business or employment to possess or use the prohibited weapon for which the permit is sought.

Reason: film/TV/theatrical purposes

The applicant must demonstrate that the film, television or theatrical activity concerned requires the possession or use of the prohibited weapon for which the permit is sought.

Reason: weapons collection

The applicant must demonstrate that the applicant’s prohibited weapons collection has a genuine commemorative, historical, thematic or financial value.

Reason: public museum purposes

The applicant must demonstrate that the public museum concerned is involved in the collection and display of prohibited weapons.

Reason: heirloom

The applicant must demonstrate that the applicant has inherited the prohibited weapon for which the permit is sought and that the weapon has a genuine sentimental value.

Reason: animal management

The applicant must be a veterinary practitioner (within the meaning of the Veterinary Practice Act 2003), or an organisation that has responsibilities for animal management, and demonstrate that it is necessary in the conduct of the applicant’s responsibilities to possess or use the prohibited weapon for which the permit is sought.

Reason: scientific purposes

The applicant must demonstrate that the prohibited weapon for which the permit is sought is required for legitimate scientific purposes.

(3) The possession or use of a prohibited weapon for personal protection, or for the protection of any other person, is not a genuine reason for the possession or use of the weapon. However, any such reason may constitute a genuine reason in the case of a prohibited weapon referred to in clause 4 (1) of Schedule 1 or in the case of a prohibited weapon that is of a kind prescribed by the regulations for the purposes of this subsection.

(4) Subsection (3) does not limit the reasons that the Commissioner may determine are not genuine reasons for the purposes of possessing or using a prohibited weapon.’

10 The Commissioner has seen the Genuine Reason requirement as being applicable to applications for TWA Permits and Weapons Dealers Permits, even though there is no reference to ‘genuine reason’ in the descriptions of the scope of these permits given by s 8. We return to this point later in these reasons, but it is important to an understanding of the Commissioner’s approach in this case to understand that the Commissioner sees the Genuine Reason requirement as applicable to TWA Permits.

History of Commissioner’s Decisions

11 Mr Martin applied for renewal of the permit he had held for several years. The Commissioner initially rejected the application on the basis that Mr Martin had supplied no adequate evidence with his application to explain why he needed a permit. The Commissioner confirmed the decision to refuse to renew the permit (22 May 2006). That led Mr Martin to lodge his application for review (15 June 2006). The Tribunal decided after the first day of hearing (4 September 2006) to remit the matter to the Commissioner for reconsideration. As a result of the reconsideration on the basis of evidence, the Commissioner granted Mr Martin a permit limited to one weapon type (26 October 2006).

12 In the past, Mr Martin had had a permit unrestricted as to weapon types. The basis for this decision was that Mr Martin had supplied evidence of a current business transaction involving a request from the producers of a television film series on the Kokoda Track to supply bombs, grenades and the like and to assist in their depiction in the film. This met the requirement laid down in a policy issued by the Firearms Registry requiring applicants for TWA permits to provide an ‘end user certificate’ to show that there was a need for them to deal in a particular type of prohibited weapon.

13 Mr Martin, in our view rightly, complained that he could not do business as a theatrical armourer if he did not have in stock the array of weapons that might be sought by producers of plays and films. Responding it would seem to concerns of this kind, the Legal Services Unit of the Police advised the Tribunal in November 2006 that the Commissioner was prepared to issue a wider permit allowing Mr Martin to hold 19 of the 45 weapon types listed in Schedule 1. However an amended permit giving effect to this commitment did not issue until May 2007.

14 In the meantime the matter returned to the Tribunal, and it gave directions to the Commissioner to file an affidavit explaining what the policy and practice of the Registry was in relation to the exercise of the discretion in respect of TWA permits.

15 The result was that the Acting Manager of the Firearms Registry, Mr Craig Capper, filed an affidavit on 20 February 2007 which dealt with that subject. It included a detailed explanation of what prohibited weapons the deponent thought were required by theatrical weapons armourers, and indicated that the grant of permits would be restricted to weapons that fell within that field. This was said to be the application of a standard called the ‘industry standard’. The deponent saw the policy as giving effect to the Genuine Reason requirements of the legislation. The hearing proceeded on 26 March 2007. In a decision issued 2 April 2007, the Tribunal criticised a number of aspects of the reasoning process that had led to the grant of a truncated permit. For that reason it remitted the matter to the Commissioner for reconsideration.

16 Five weeks later, on 9 May 2007, the Commissioner issued a new amended permit to the appellant covering 20 weapon types, in line with the position foreshadowed in November 2006.

17 The amended permit was expressed to operate for five years from 26 October 2006. The varied permit covers (as previously) item 2.1 (bombs, etc). It also covered the following types of Knives in clause 1: 1.1 flick knives, 1.3 sheath knives, 1.6 butterfly knives, and 1.7 star knives; the following types of Miscellaneous Weapons in clause 2: 2.3 any device to propel or launch a bomb, etc, 2.4 – spear guns, 2.6 – slingshots, 2.11 – dart projectors, 2.12 – mace, 2.13 – flails or similar articles, 2.14 – whips, 2.15 – cat-o’-nine-tails, 2.16 – kung fu sticks, 2.17 – side handled batons, 2.17A – extendable or telescopic batons; the following types of Replicas, imitations, concealed blades in clause 3: 3.1 – bombs, grenades, rockets, etc; and 3.2 – of firearms; and finally the following types of Miscellaneous Articles in clause 4: 4.1 body armour vests and 4.2 – handcuffs. He remains barred from 25 of the 45 sub-categories. As compared to Mr Capper’s affidavit, there are two extensions in coverage. One, the further amended permit authorises the use of sheath knives (1.3) and propulsion devices for bombs etc (2.3), the latter in line with the Legal Service submissions of November 2006.

18 It is clear that the Tribunal had approached the matter on the assumption that a wider permit had been agreed.

19 At that hearing (and again before the Appeal Panel) Mr Martin had argued that he should, at the least, be given a permit which extended to 25 of the weapon types. He put submissions that there was a regular demand for weapons falling of those additional types, as well as the ones already agreed. The additional five were: 1.5 trench knives; 1.19 knuckledusters; 4.3 silencers, 4.4 firearms magazines and 4.5 brass catchers.

20 The Tribunal dealt sympathetically with his submissions in that regard, and clearly intended that they be reconsidered by the Commissioner. The Commissioner has not reconsidered the position in relation to the 5 additional types pending this decision.

The Appeal

21 The Commissioner’s appeal is made under ss 112 and 113 of the Administrative Decisions Tribunal Act 1997 (the ADT Act). An appeal may be made as of right on a question of law, and, by leave, the appeal can be extended to the merits. The Commissioner’s appeal raised a question of law, and applied for extension to the merits.

22 The Commissioner’s notice of appeal gives as the question of law:

‘The Tribunal Member erroneously considered and/or limited the test to be applied when considering what was required by the Applicant to demonstrate he had a genuine reason for the possession of a prohibited weapon in operating the business of a theatrical weapons armourer.’

23 In reply to the Commissioner’s appeal, Mr Martin continued at the hearing before the Appeal Panel to express concern that he had not been dealt with on a fair basis and to make again the case for a wide permit, as he has done throughout his interaction with the Firearms Registry.

24 He pointed out that the kind of weapon that is sought by a film or theatrical customer will very much depend, he said, on the period and context of the production. A production set in medieval times may require cross-bows and body armour. A production set in the gangland culture may require flick knives, knuckledusters, and studded items of various kinds. A spy movie may require concealed weapons such as knives hidden in canes, umbrella stick weapons, special darts and the like. A colonial movie depicting convict punishments may require whips and a cat-o’-nine-tails.

25 He also claimed that a policy which requires armourers to demonstrate a current need for a specific weapon at the time of applying for a permit will have an adverse micro-economic effect. It will tend to push producers to deal with armourers in other States where constraints of this kind are not applied. It may contribute to producers of action films deciding to undertake the whole production in another State.

26 He also questioned whether his application was being dealt with consistently with other theatrical armourers in the State. Mr Capper’s affidavit was unclear as to whether the ‘industry standard’ was being applied equally to all theatrical armourers presently operating in the State.

27 He indicated that it was his desire that at least he have the permit of 9 May 2007 extended to the five additional weapon types.

The Osborne Case

28 The Tribunal referred to and adapted the Appeal Panel’s decision in Osborne v Commissioner of Police, NSW Police Service [2000] NSWADTAP 10 (Osborne), a case concerned with the approach to be adopted in determining whether an applicant for a firearms licence under the Firearms Act 1996 (the Firearms Act) has a genuine reason for the use and possession of a firearm. Under that Act, the licence applicant must have a ‘genuine reason’ for a licence, and the relevant section, s 12, is followed by a Table of acceptable genuine reasons. They are broader, as one would expect, than the reasons listed as genuine reasons for holding a prohibited weapons permit. The area of overlap with this case is that the ‘business or employment’ reason is expressed in the same terms.

29 In Osborne the applicant was a firearms dealer who took weapons to remote country locations to retail to farmers and the like. He said he sometimes had to sleep out beside his car overnight in lonely situations, and he needed to have a pistol by his side in case someone tried to rob him of his stock of weapons. In that instance the Tribunal and the Appeal Panel agreed with the Commissioner that today the retail trade in firearms in country Australia could be carried on in a manner which did not require the taking of risks of this kind, and therefore a pistol was not necessary for the safe conduct of that trade. The Appeal Panel agreed with the Commissioner that the appellant had not demonstrated a ‘genuine reason’ based on the need to conduct this business for having a pistol licence. In that instance the application was one made under the Firearms Act.

30 The Tribunal said:

‘47 In Osborne [ Osborne v Commissioner of Police, NSW Police Service [2000] NSWADTAP 10], the Appeal Panel had regard to a ‘genuine reason’ requirement in the Firearms Act 1996. Under that Act, a particular category of licence authorised a person to possess or use a firearm, but only for the purpose established by the licensee as being his or her genuine reason for having the licence. An applicant was therefore required to demonstrate a ‘genuine reason’ for possession and use of the firearm in his or her business.

48 The Appeal Panel held, at par 48, that: “[t]he test should be read so as to focus on the type of business activity undertaken by the applicant, rather than the specific way the applicant undertakes the business.” In Osborne, the applicant chose to travel alone carrying dangerous goods to isolated locations, and contended that he needed to carry a pistol for his personal protection. The Appeal Panel emphasised, at par 50:

“The Commissioner’s task is to look at the type of business conducted by the applicant, and ask whether for that type of business the nominated firearm should be regarded as necessary. The instances that would justify possession of a pistol for the protection of the business’s property, applying the test, would be rare. That outcome is consistent with the social purpose of the legislation.”
49 The Appeal Panel found it was not essential to the process of dealing in firearms to do business in this way, and thus the nominated firearm was not necessary for that type of business.

50 In my view, the same approach should be adopted in Mr Martin’s case. The question to be asked is whether Mr Martin has a genuine reason for needing a permit for the possession or use of particular type of prohibited weapons in his business. Such an approach is consistent with the objects of the Act stated in s 3(1), and, in particular, with the need to ensure public safety and impose strict controls on the possession and use of prohibited weapons. Moreover, it is consistent with the s 3(2) requirement that each person who possesses or uses a prohibited weapon has a genuine reason for doing so.

51 Mr Martin’s business is that of a theatrical weapons armourer. Pursuant to s 11(2), the Commissioner may be satisfied that the applicant has a genuine reason for possessing or using a prohibited weapon, if the applicant can demonstrate that the possession or use of such a prohibited weapon is required in the conduct of his business for film, television or theatrical activity. This does not, in my view, mean that he must demonstrate the need for a specific prohibited weapon in respect of each film, television or theatrical production in which his business is involved. That would be unduly restrictive of his business activity and make it difficult for him to develop the supervisory and training skills that may be involved in carrying on his business. What Mr Martin must demonstrate is that he is operating the business of a theatrical weapons armourer and a person conducting such a business has a genuine reason for the possession or use of particular types of prohibited weapons.

52 In Osborne, the Appeal Panel noted that, pursuant to s 33 and 34 of the Acts Interpretation Act 1987, the approach to be adopted in interpreting the words of the legislation is, first, to ascertain the meaning of the words having regard to the stated purpose and objects and the content of the legislation as a whole. Second, reference may be made to extrinsic materials in order to confirm the meaning of the words, or if the meaning is ambiguous or obscure or would lead to a result that is manifestly absurd or unreasonable. In the present case, my view is that it is not necessary to take the second step, the wording of the objects clause being sufficiently clear.

53 Turning to the particular decision under review, the evidence before me suggests that there has been a lack of information provided by the Firearms Registry about the requirements for particular permits. Mr Martin has undoubtedly been confused and frustrated by the course of events. It would also be of concern if Mr Capper has developed an “industry standard” without proper consultation with the industry itself. Because I only have minimal information about the review of the Act conducted by Mr Capper and no information about the consultation process itself, I am unable to form any view as to whether or not such consultation has taken place.

54 However, I note that Mr Capper has apparently, on occasion, acted on what appears to be supposition about the needs of theatrical productions. For example, he has expressed a view about the use of silencers based, it would seem, on his own assessment of what is of theatrical value, a view that is at odds with that of Mr Martin. I also find his concern about the use of brass catchers curious if, as seems to be the case, he was satisfied by Mr Martin’s reasons for the possession and use of inherently dangerous articles such as bombs and firearms. I am satisfied that Mr Martin has demonstrated a genuine reason for his permit to extend to include trench knives, brass catchers and firearms magazines to ensure historical authenticity in the depictions of weaponry in film, television and theatrical productions. I am also satisfied that he has demonstrated the need for his permit to extend to include knuckle-dusters and silencers so that, where appropriate, these can be used in realistic representations of criminal conduct.

55 I note that Mr Capper’s industry standard does not constitute Government policy within the meaning of s 64(5) of the ADT Act, where Government policy is defined as meaning policy adopted the Cabinet, the Premier or any other Minister. Thus, although Mr Capper’s industry standard may be useful guide for the Firearms Registry, the Tribunal is not required to give effect to it. Moreover, pursuant to the rule against the fettering of the exercise of discretion, care must be taken to ensure that such policy is only a guide, and the circumstances of a particular application must be must be properly considered on its facts: Clyne at par 17 ff.

56 In the decision under review dated 22 May 2006, the delegate stated “I can find no evidence to support your statement that you are involved in filming theatrical productions”. The reason for the perceived lack of evidence appears, in part, to be the result of a lack of understanding by Mr Martin of what was required of him. This in turn appears, in part, to be due to poor communication by the Firearms Registry. In the course of these proceedings, Mr Martin has produced a significant volume of additional material to support his case. In my view, it is appropriate that the Commissioner should now reconsider the decision in the light of that material.

57 I have set out above what I consider to the correct approach to determining Mr Martin’s application for a theatrical weapons armourer permit. I am not clear from the statement of reasons provided by the delegate whether or not the delegate was unduly influenced by the lack of evidence from those whom Ms Berry, the Acting Co-ordinator of the Case Management Unit of the Firearms Registry, in a fax to Mr Martin dated 8 September 2006, referred to as “end users”. As I have stated above, what Mr Martin must demonstrate is that he is operating the business of a theatrical weapons armourer and that a person conducting such a business has a genuine reason for the possession or use of particular types of prohibited weapons. However, he is not required to demonstrate the need for a specific prohibited weapon in respect of each film, television or theatrical production in which his business is involved.

58 In my view, given the particular circumstances of this case, the appropriate decision is for me to set aside the decision under review and remit the matter to the Commissioner for reconsideration in accordance with these reasons.’

31 The Appeal Panel decision in Osborne does, in our view, give appropriate guidance as to how the ‘Business/Employment Purposes’ requirement is to be approached. In this case, the Tribunal was not satisfied that the Commissioner’s delegate had applied a similar approach to that reflected in Osborne to Mr Martin’s application. He had relied on an abstract ‘industry standard’. This, in our view, was clearly the case.

32 The practical problem with the original approach adopted by the Registry (the ‘end user certificate’) is obvious. A person who holds himself or herself out as dealing in prohibited weapons can not always anticipate in advance which type of prohibited weapon may be sought. The list in the Schedule covers weapons from all eras of combat going back to ancient times, as well as different types of hostility – for example, military warfare, clandestine attacks, gang crimes and instruments of torture. Mr Martin provided information showing that he had supplied weapons to many famous Australian plays and film productions, including internationally successful films produced in Australia. He provided testimonials. On its face Mr Martin had far more expertise on what is required to conduct the business of a general theatrical armourer than was manifested in the affidavit.

33 The closest indication of how Mr Capper formed his view as to what is appropriate is found at paras [40]-[42] of his affidavit, where he says:

‘In my experience in issuing permits over the past 3 years and previously in my capacity as the Manager, Administrative Law Unit at Legal Services, the following items listed in this paragraph are regularly requested [by?] security firms and personnel, martial arts instructors and law enforcement personnel. In my experience, whilst theatrical productions could possibly call for any particular item from time to time, the majority of items required by theatrical productions relate to items used by security personnel or law enforcement officers.

…

As can be seen from the above, the list of items approved have a clear use in a large number of theatrical productions (i.e. Water Rats, Blue Heelers etc police style of locally produced television drama). In my experience, the major use of weapons in theatrical productions generally relate to the use of these items by security, law enforcement personnel or those persons depicted of undertaking criminal activities.’

34 The statements at paras [40]-[42], in our view, underline the doubts raised as to what special expertise Mr Capper brought to the subject of the nature of the business of theatrical armourer. As Mr Cuddy and Mr Martin pointed out at the appeal hearing, cogently in our view, this reflects a very narrow view of the possible requirements of theatrical production. Mr Capper clearly has in mind in these comments weaponry in use in the modern environment of law enforcement.

35 This explanation hardly coincides with the kind of items which he had approved as falling under the ‘industry standard’ in the course of his affidavit. The list included such items as whips, flails and kung fu sticks, which, we doubt, have any place in modern policing.

36 Mr Capper’s affidavit went on to give reasons as to why 26 of the other 27 sub-categories should not ordinarily be approved in granting a theatrical armourer’s permit. He did not refer to item 2.3.

37 In the affidavit, Mr Capper explained that in consequence of his view as to the appropriate approach to the ‘genuine reason’ requirement he had instituted a procedure within the Firearms Registry whereby, ‘the onus of proving the necessity of such items in the conduct of the Applicant’s business employment rested with the Applicant.’ To facilitate that process he identified items regularly used and ‘thus necessary in the conduct of the business/employment of theatrical armourers.’ He also identified prohibited weapons for which a permit would not be issued ‘without specific and clear evidence of the “necessity” of those items in the conduct of the particular applicant’s particular circumstances/business.’ He explained at [51]:

‘In this regard I have had regard to what I consider to be the “industry standard”. That is the “industry standard”, in my experience, of items utilised in theatrical productions. I have not considered the previous theatrical armourer permit authorities issued by the Firearms Registry as the industry standard, due to the fact that I consider, for the reasons outlined above, that the previous determinations were erroneous at law in that they have failed to have proper regard to the objects and principles of the Act.’

38 The affidavit disclosed no credible process of consultation leading to the development of the so-called ‘industry standard’.

Does s 11 apply to applications for Theatrical Permits?

39 At the appeal hearing Mr Martin and his assistant in presenting submissions, Mr Cuddy, raised the question of whether the Commissioner had wrongly been applying s 11 to TWA permit cases. They referred to the scheme of the WPA and the Regulations made under it.

40 They suggested that there were detailed provisions in the WPA specifically concerned with the grant of theatrical armourer’s permits, as there were also in the Regulations. They argued that these provisions provided a complete scheme, and that s 11 was not a provision that applied to all three of the major permit categories but rather to one of them, the General Permit category.

41 The Appeal Panel considered that this submission was at least arguable, and it was desirable that the matter be clarified. Directions were made for the parties to file and serve further written submissions. We granted leave to Mr Martin to seek a further oral hearing once the Commissioner’s submissions had been filed. Mr Martin did seek that further hearing; however, having considered the Commissioner’s submission we thought that a further oral hearing would not assist us. We decided, under s 76 of the ADT Act that we could adequately determine the issues in the absence of the parties.

42 The contention may be put as follows – that s 11(1) is only concerned with permits authorising ‘possess or use’ simpliciter. It will be seen that the weapons dealer permit is expressed to be a permit authorising the holder to ‘possess, buy, sell and manufacture’, while the theatrical armourer permit authorises the holder to ‘to possess, use, buy, sell and manufacture’ and ‘to supervise and train persons’.

43 The argument is that if the scheme of the Act and the Regulations is looked on as a whole the Genuine Reason provisions in s 11 attach to General Permits, while other provisions of the Act and the Regulations attach to Weapons Dealer Permits and TWA Permits. Therefore it is an error to apply the Genuine Reason provisions to the consideration of Theatrical Armourer Permits (and, for the same reasons, to Weapons Dealer Permits).

44 Most of the Genuine Reasons set out in s 11 match one of the General Permit types found in the Regulations.

45 A similar point to this one arose in the case of Commissioner of Police, New South Wales Police v Macdonald (GD) [2007] NSWADTAP 13. The Appeal Panel considered the question of what was the applicable law when the Commissioner was considering the grant of club armourer permits to armourers of shooters club, a matter governed by the Firearms Act and the Firearms (General) Regulation 1997.

46 Commissioner’s Submissions. The Commissioner submitted the interpretation pressed by Mr Martin would not promote the purpose and objects of the WPA as required by s 33 of the Interpretation Act 1987 (the Interpretation Act). The Commissioner made reference to a number of passages from the Second Reading speech on the Weapons Prohibition Bill which it was said supported the construction advanced by the Commissioner, and relied on s 34 of the Interpretation Act as a basis for taking them into account.

47 The Commissioner submits that the genuine reason provisions of s 11 are applicable to all permits issued under the Act:

‘Notwithstanding the fact that section 8 of the Act distinguishes between a weapons dealer permit, a theatrical weapons armourer permit and a general permit it does not remove the need for each of those three category of permit holders to demonstrate a ‘genuine reason’ pursuant to section 11 of the Act.

… Section 11(1) of the Act provides the general rule that the ‘Commissioner must not issue a permit authorising the possession or use of a prohibited weapon unless the applicant has, in the opinion of the Commissioner, a genuine reason for possessing or using the weapon’. The Table at section 11 of the Act details the various genuine reasons. …

The references to ‘carrying on a business’ found in Part 3 of the Act and Part 5 of the Regulation further supports the assertion that a theatrical armourer must demonstrate that he carries on the genuine reason of business or employment.’

48 The General Permit is the main form of permit, and there are 14 types of General Permit specified in the WPR.

49 The other two Permits are permits intended to support the conduct of businesses dealing with prohibited weapons. This is reflected in the definitions of the two types of person who may have these permits (see s 4(1)):

‘‘theatrical weapons armourer’ means a person who, in the course of carrying on a business, manufactures, buys or sells prohibited weapons for use in connection with cinematographic, television or theatrical productions.

…

‘weapons dealer’ means a person who, in the course of carrying on a business, manufactures, buys or sells prohibited weapons otherwise than for use in cinematographic, television or theatrical productions.’

50 It will be seen that the authorisation given by the General Permit is expressed in different terms to the authority given by the two trader permits. The conceptual structure of each of the provisions is the same: the permit authorises, one, a range of activities and two, the conduct of those activities for a recognised purpose.

51 There are differences in the scope of a General Permit as compared to the two trader permits.

52 The General Permit firstly confines the holder to the activities described as ‘to possess or use’ a prohibited weapon of the kind specified in the permit and further provides that the possession and use is only to be for ‘the purpose established by the holder as being the genuine reason for possessing or using the prohibited weapon’. ‘Possession’ is defined by s 4(1) essentially in terms of having custody or control of a weapon.

53 The two trader permits each describe the authorised activities more broadly. In the case of the Weapons Dealer Permit it is ‘to possess, buy, sell and manufacture’ prohibited weapons. It will be seen that authority to ‘use’ is missing from the list. In the case of TWA Permits there are two categories of activity. The first is ‘to possess, use, buy, sell and manufacture prohibited weapons of the kind specified in the permit’; and the second is ‘to supervise and train persons who are involved in cinematographic, television or theatrical production in the use of prohibited weapons to which the permit relates’.

54 The authority then goes on to give a derivative authority to use the weapons to those involved in the production while under supervision.

55 It will be seen that the TWA Permit in comparison to the Weapons Dealer Permit does have a significant ‘use’ element. Indeed that might be seen as the major component of this kind of permit.

56 Each of the trader permits then go on to deal with the recognised purpose in similar terms. In the case of the Weapons Dealer Permit the authorised activities may only be undertaken ‘in the course of carrying on business as a weapons dealer and only at the premises specified in the permit (or at such other premises as may be approved)’. In the case of the TWA Permit the authorised activities may only be undertaken ‘in the course of carrying on business as a theatrical weapons armourer’. In this instance there is no reference to specified premises, reflecting the fact that the holder of such a permit will be a person who undertakes much of the permitted activity on location at film sets and theatres.

57 The ‘genuine reason’ requirement of s 11 clearly applies to General Permits. As previously noted, s 11 provides that the Commissioner must not issue a permit ‘authorising the possession or use’ of a prohibited weapon ‘unless the applicant has, in the opinion of the Commissioner, a genuine reason for possessing or using the weapon’.

58 ‘Possession’ is a permitted activity under a Weapons Dealer Permit, while ‘possession’ and ‘use’ are both permitted activities under a TWA Permit. On its face, therefore, the genuine reason requirement applies. As these are both general trading permits, in our view, the only possibly relevant item in the Table of purposes in s 11 is ‘business/employment purposes’.

59 In our view the other reasons in the Table are plainly linked to the specific types of General Permit types set out in Part 3 of the WPR. In particular, in our view, it was not proper in this case for the Registry to have regard to the reason in the Table headed ‘film/TV/theatrical purposes’. This reason directly links to the permit type found at cl 17 in Part 3 – ‘Prohibited weapons – production permit’. It is a form of permit that allows a producer to possess and use prohibited weapons for the purpose of the production specified in the permit. Clearly this is intended to allow for direct authorisation (not involving the intermediary of an armourer) for the duration of a production. A circumstance might be, for example, an experienced producer known to be familiar and trusted in the possession and use of the particular type of weapon.

60 Part 3 of the WPA contains detailed provisions regulating the conduct of weapons dealers and theatrical weapons armourers. Section 21(2) permits the regulations to prescribe other requirements with respect to dealers and armourers.

61 The special provisions in the case of weapons dealers appear at Part 4 of the WPR. The special provisions in the case of TWA permits appear at Part 5 of the WPR. The special provisions in the instance of TWA permits deal with such matters as: minimum age (18); nature of any premises from which business carried on; safety; register of prohibited weapons; and change of premises.

Conclusion

62 While the question is not free from doubt, we are inclined to favour the submissions of the Commissioner, i.e. that the ‘genuine reason’ requirement set out in s 11 is applicable to all applicants for permits. While the Table at the foot of s 11 matches closely various General Permit types, it is the case that ‘possession’ or ‘possession’ and ‘use’ are components of the activities authorised by the two trader permits.

63 In reaching this conclusion on balance, we are mindful that s 11 appears in the part of the WPA headed ‘General Provisions Relating to Permits’ and the requirement of a ‘genuine reason’ is specified to be one of the objects of the WPA, see s 3 (2).

64 As we see it, the function of the ‘genuine reason’ requirement in the scheme of regulation under the prohibited weapons legislation is to enable the Commissioner to form a view as to whether the stated reason for the issuance of a permit is the real, bona fide reason of the applicant. The Commissioner must be on guard to ensure that people do not under cover of an acceptable activity use or deal nefariously in prohibited weapons.

65 In dealing with applications for trader permits, such as the WPA Permit, the Commissioner will need to be satisfied that the stated acceptable business permit is the genuine or bona fide reason for seeking the permit (the Act itself recognises the business of theatrical armouring as an acceptable business in connection with prohibited weapons). In the present case, there has been no doubt entertained as to Mr Martin’s bona fides. The evidence is that Mr Martin is well established in the field. There is no criticism of his general character.

66 In a case of this kind, the ‘genuine reason’ requirement should have been easily satisfied. It should not have been turned into a road block by way of an ‘industry standard’. The real issue is whether there should be any restriction placed on the range of weapons allowed under the permit. The permit categories each provide that the authority attaches to ‘weapons of the kind specified in the permit’

67 In our view the discretion to specify weapons must be exercised in a fair and reasonable way, cognisant of the usual way in which the trade (whether weapons dealer or prohibited weapons dealer) is practised. The Osborne decision involved a similar point. There the applicant failed because he was not able to show that it was necessary for the practical conduct of the business of firearms dealing to have a pistol for protection. In this case the point Mr Martin has consistently made is that a general theatrical armourer needs to have access to all types of prohibited weapons. Permits which restrict the number of weapon types inhibit the ability to do business in the usual way.

68 In this case, the first decision to refuse to renew Mr Martin’s permit was unreasonable given his history and standing. He was met with the objection that he had not attached any evidence to his renewal application. The administrator should have raised that objection ahead of rejecting the application, and given Mr Martin an opportunity to rectify the omission. That opportunity was provided after the matter reached the Tribunal. The next decision (to grant a permit restricted to one weapon type) was also unreasonable. The scheme of the WPA, as we have noted, treats the permit as a trading permit. How could it be fair to limit a person who has an established trading pattern involving a variety of weapons merely to one weapon type that happens to be the subject of a current transaction? This unfairness it seems was recognised by the Registry, or at least the Legal Services Unit, in November 2006, when it advised that the permit would not be extended to cover 18 additional weapon types. Yet the amended permit did not issue until 5 weeks after the Tribunal’s decision.

69 Mr Martin, understandably, continues to press a claim based on the nature of his business that he be allowed at least the 5 additional types discussed by the Tribunal in its decision. In addition, he continues to argue that preventing him from dealing with the balance of the 45 prohibited weapon types hampers his ability to carry on trade as a general theatrical armourer.

70 The difficulty with this case is that the first decision to refuse the permit outright was unreasonable given Mr Martin’s history and standing. The second decision to grant a permit restricted to one production and one weapon type was also unreasonable, and was inconsistent with the legislative policy that has given rise to this class of permit. It is clearly a trader permit designed to support the undertaking of a business activity. A permit so tightly restricted does not conform with the policy that led to the establishment of this class of purpose.

71 It may be that there are good policy reasons for limiting the range of specified weapons authorised under trader permits. However, in our view, great care must be shown to deal consistently as between different general traders. There must be clear and rational grounds for treating general traders variably. It is right, we think, for Mr Martin to complain that if he is renewed with a limited suite of weapons, then a practical advantage is delivered to his competitors who are yet to come up for renewal. A rational policy would operate on the basis that all like traders are not to be given competitive advantages by dint of variations in the permitted weapon types. The playing field should be equal. Similarly, if, on renewal, one general trader is given endorsements for a wider suite of weapons than another general trader, there needs to be clear and rational grounds to explain that discrepancy.

72 As we have already indicated, the explanations given by Mr Capper in his affidavit for the approach he had developed as the ‘industry standard’ were not at all persuasive. Nor was it apparent that Mr Capper had engaged in any credible consultation with affected parties or their representative organisations. Moreover, it seems to us that if a new policy is introduced (reducing the number and type of prohibited weapons in circulation in the community, which may well be laudable), then it needs to be applied equally as between like cases.

73 Mr Martin, rightly in our view, expressed concern over the impact variations in relation to the range of weapons permitted which would have the effect of advantaging some armourers over other armourers in getting work. It would be highly desirable for the Registry to reach a view on what is needed for theatrical armourers to carry on that activity, and then issue permits which are in common form. The Registry should not, we think, be in a relationship to a business area which might give rise to suggestions of partiality or preferential treatment. We accept, as did Mr Martin, that sometimes an armourer only seeks a restricted permit because the armourer has chosen to specialise in a particular class of weapons.

74 In our view the Tribunal’s decision to refer the matter back to the Commissioner for reconsideration was the correct and preferable one.

Form of Orders

75 There is a problem with the form of order that the Tribunal made on the last occasion. It purported to ‘set aside’ the Commissioner’s decision of 22 May 2006, the decision which founded the review application to the Tribunal. The problem is that by the time the matter fell for final determination by the Tribunal the operative reviewable decision was the decision of 26 October 2006 (the permit restricted to one weapon type), even though a more generous decision had been foreshadowed. This decision became the decision under review, by virtue of s 65(4) of the ADT Act.

76 The position now is that a further decision has been made (issuing the amended permit).

77 The Tribunal’s basic order of remittal for reconsideration should stand.

78 But the ‘set aside’ order should be quashed, and the remittal order reformulated, now in light of the decision of 9 May 2007, as an order to remit for reconsideration that decision in light of the Tribunal’s and the Appeal Panel’s reasons. If that remittal is unsatisfactory, then Mr Martin should be allowed to have the Tribunal consider the outcome of the Commissioner’s deliberations. It may well be that the case will resolve itself if the five additional weapon types sought by Mr Martin are granted.

79 The Tribunal did not make it clear when it was making the order under appeal whether the order was in the nature of a final order under s 63(4)(d) of the ADT Act or an interim order for reconsideration of the kind previously made, under s 65.

80 In our view, it would be preferable for the matter to be kept alive before the Tribunal until the reconsideration occurs.

81 Accordingly we enter the following orders.

Orders

1. Appeal dismissed.

2. Order the Commissioner to reconsider the decision of 9 May 2007 in light of these reasons and those of the Tribunal below, and to advise the appellant of the decision within 28 days.

3. Tribunal to list the review application for further directions if the applicant wishes to continue to proceed with the application for review.