CUTBUSH and COMMISSIONER OF POLICE - [2010] WASAT 45

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: FIREARMS ACT 1973 (WA)

CITATION: CUTBUSH and COMMISSIONER OF POLICE [2010] WASAT 45

MEMBER: DR B DE VILLIERS (MEMBER)

HEARD: 2 MARCH 2010

DELIVERED : 1 APRIL 2010

FILE NO/S: CC 1714 of 2009

BETWEEN: CHARLES CUTBUSH
Applicant
AND
COMMISSIONER OF POLICE
Respondent

Catchwords:

Firearms - Genuine reason to be licensed - Does the exemption from licensing requirements for a family member of primary producer automatically exclude such a family member from being licensed pursuant to the categories provided for in s 11A of the Firearms Act 1973 (WA) - Can a category C firearm be colicensed - Is it a genuine reason for a category C firearm to be used at an approved shooting club

Legislation:

Firearms Act 1973 (WA), s 8, s 8(1)(i), s 8(1)(i)(i) s 11, s 11(1), s 11A, s 11A(2)(b), s 11A(2)(c), s 30(1)
Firearms Regulations 1974 (WA), Sch 3, Sch 3(1)(b)
State Administrative Tribunal Act 2004 (WA), s 11(1), s 27(1), s 27(3), s 29(1), s 29(3), s 29(5)

Result:

The application is allowed
The decision of the Commissioner of Police to refuse to colicense the firearms the subject of the application is revoked
The Commissioner of Police must issue the licenses forthwith

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Mr S Bagley (Representative)

Solicitors:

Applicant: Self-represented
Respondent: Commissioner of Police

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Charles Cutbush, (applicant) sought a review of a decision by a licensing officer, acting under the Firearms Act 1973 (WA), to refuse to approve his application to be colicensed with his father for three category C firearms. A category C firearm is subject to very strict licensing conditions.
Mr S Bagley, (representative of respondent) contended twofold why the application should be dismissed: firstly, that a category C firearm cannot be colicensed, and secondly, that the applicant is precluded from being licensed in his own right since his father is a primary producer and he can use his father's rifles. According to the respondent, s 8 of the Firearms Act 1973 (WA) exempts a family member from having to be licensed and, in effect, this also means that such a family member is automatically precluded from being colicensed. The respondent concluded that, based on this interpretation, there was no need for the licensing officer to consider whether the applicant had a 'genuine' reason to be licensed.
The applicant contended that the Firearms Act 1973 (WA) does not preclude a category C from being co-licensed. He further argued that he has a genuine reason for being colicensed since he uses the firearms on his father's property for purposes of hunting and recreational shooting, he is often required to buy ammunition for the firearms, and he is a member of a shooting club.
The Tribunal found that s 8 of the Firearms Act 1973 (WA) does not automatically preclude family members of a primary producer from being colicensed to hold a firearm. If, however, a family member seeks to be colicensed, the 'genuine needs' test of s 11A of the Firearms Act 1973 (WA) must be satisfied. The Tribunal also found that there is no statutory prohibition against a category C firearms being colicensed. The Tribunal concludes that, in light of the evidence before it of the applicant's use of the firearms, he has a genuine reason pursuant to s 11A of the Firearms Act 1973 (WA) to be colicensed.
The application for review was therefore accepted. The decision of the respondent to refuse to issue the licences was revoked and orders were made for the licenses to be issued.

Issue

The applicant seeks a review of the decision of the Commissioner of Police (Commissioner or respondent) to refuse to approve his application to be colicensed for three category C firearms.

Background

The application was received on 4 November 2009. The first directions hearing took place on 19 November 2009. The second directions hearing was held on 23 December 2009, at which time it was set down for a hearing. The hearing took place on 2 March 2010 and the decision was reserved. Both parties made written and oral submissions and the applicant gave evidence during the hearing.

Summary of facts

The facts are well set out in the respective submissions and evidence.
The Tribunal has taken all of the information into account before coming to its decision.
The facts can be briefly summarised as follows. The applicant applied to be colicensed with his father to hold three category C licences.
The applicant's father is a primary producer.
The rifles applied for are:
•Shotgun (selfloading) Franchi, serial No R47183, 12 gauge.
•Shotgun Pump Repeater, Winchester, serial No L1602993, 12 gauge.
•Rifle (selfloading), Gevarm, serial No 66946, .22 calibre.
The application was refused on 21 September 2009. Although there was some confusion in the documents provided by the respondent as to which applications had been refused, it was clarified at the hearing that these proceedings only concern the three category C licences. It appears that the respondent is still considering an application for category A and/or category B licenses.
The applicant is, as at date of the hearing, a member of an approved shooting club although he was not a member at the time of the firearms applications.
The applicant received authorisation for the use of the firearms on his father's land, as per letter dated 4 June 2009.

Statutory framework

The Tribunal will briefly summarise the legal framework within which the review occurs.
The licence to acquire a firearm or to continue to hold a firearm is not a right, but a privilege; hence the regulatory regime imposed by Parliament whereby the obligation is on the applicant to demonstrate why he should be licensed.
The Tribunal has, in accordance with s 29(1) of the State Administrative Tribunal Act 2000 (WA) (SAT Act), the same jurisdiction, functions and discretions as those of the licensing officer.
The Tribunal is not limited to the statement of reasons given by the licensing officer (s 27(3) of the SAT Act). The Tribunal may also take into account any additional or new information that was not at the disposal of the licensing officer at the time when the decision was made (s 27(1) of the SAT Act). The objective of the Tribunal is to come to the best and preferable decision.
The review hearing is therefore de novo (s 27(1) of the SAT Act) and is not confined to the matters and information that were before the licensing officer at the time of the decision.
The powers of the Tribunal, according to s 29(3) of the SAT Act, are to:
(a)     affirm the decision that is being reviewed;
(b)    vary the decision that is being reviewed; or
(c)     set aside the decision that is being reviewed and -
…
and to make appropriate orders.
The decision of the Tribunal is regarded as a decision of the licensing officer, s 29(5) SAT Act.
The discretion of the Tribunal must be exercised within the context of the provisions of the Firearms Act 1973 (WA). The question as to whether the applicant can be colicensed to hold three category C firearms must therefore be determined within the framework and objectives of the enabling Act.
Section 8 of the Firearms Act 1973 (WA) provides that certain persons are exempt to licensing requirements. Section 8 (1)(i) provides as follows:
8. Exemptions from licensing requirements
(1)No licence under this Act is required -
…
(i)by a person who is employed or contracted by, or is a family member (as defined in subsection (2)) of, a primary producer -
(i)to possess or use for the purpose of destroying vermin, or stock required by that primary producer to be destroyed, on land used by that primary producer for the purposes of primary production, a firearm and ammunition belonging to and held by that primary producer under a licence or permit granted under this Act to the primary producer; or
(ii)to possess such a firearm or ammunition while carrying it directly between 2 such pieces of land or directly between such land and any other place where it is authorised by law to be held,
if the use of the firearm and ammunition by that person is expressly authorised by the primary producer;
…
Section 11(1) of the Firearms Act 1973 (WA) provides as follows:
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 t at -
(a)to do so would be contrary to section 11A or regulations under section 11B or 11C;
…
Section 11A of the Firearms Act 1973 (WA) provides as follows:
11A. Genuine reason required in all cases
(1)An approval or permit cannot be granted, and a licence cannot be issued, under this Act to a person who, in the Commissioner’s opinion, has not been shown to have a genuine reason for acquiring or possessing the firearm or ammunition for which the approval, permit, or licence is sought.
(2)A person has a genuine reason for acquiring or possessing a firearm or ammunition if and only if -
(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;
Schedule 3 of the regulations to the Firearms Regulations 1974 (WA) provides as follows:
(1)An approval or permit can be granted or a licence can be issued for a firearm of category C only if -
(a)it is for a shotgun and is granted or issued to a person who -
(i) is described in section 11A(2)(a) of the Act; and
(ii)requires the firearm for use as described in that provision for the purpose of training for, and participating in, an approved national or international shooting discipline;
(b)it is for a rifle or shotgun, and is granted or issued to a person who -
(i)is a primary producer or an approved nominee of a primary producer; and
(ii)requires the rifle or shotgun for the purpose of destroying vermin or stock as described in section 8(1)(i)(i) of the Act;

Questions to be considered

There are three questions that crystallised during the hearing that need to be considered by the Tribunal, namely:
a)Does the exemption in s 8(1)(i) of the Firearms Act 1973 (WA) automatically preclude a family member of a primary producer from being licensed?
b)Does the Firearms Act 1973 (WA) prohibit a category C licence from being colicensed?
c)Does the applicant have a genuine reason pursuant to s 11A of the Firearms Act 1973 (WA) to be licensed?
The Tribunal will now deal with each of these questions.

Does the exemption in s 8(1)(i) of the Firearms Act 1973 (WA) automatically preclude a family member of a primary producer from being licensed?

The respondent contends that the Act automatically precludes a family member who is exempted from being licensed, to be licensed in his/her own right. The applicant rejects the argument and says there is no basis to draw such an inference from the Firearms Act 1973 (WA).
The Tribunal does not accept the contention of the respondent and concurs with the applicant.
Section 8(1)(i) of the Firearms Act 1973 (WA) is an enabling provision that grants relief from being licensed to family members of a primary producer subject to certain conditions. This provision is aimed to grant relief to the family of a primary producer who seeks to use a firearm on his/her land without having to comply with the onerous provisions of the Firearms Act 1973 (WA), in particular the requirements of s 11A of the Firearms Act 1973 (WA) .
There is, however, nothing to suggest that a family member of a primary producer is automatically precluded by operation of s 8(1)(i) of the Firearms Act 1973 (WA) to being licensed in his/her own name. If a family member chooses to apply for a firearm licence, he/she has to satisfy the licensing officer in the same way as any other member of the public in order to be licensed.
There is further nothing in the Firearms Act 1973 (WA) to suggest that s 8(1)(i) was meant to limit the granting of firearm licences to family members of a primary producer. In fact, the Firearms Act 1973 (WA) foreshadows that a person who is authorised by the primary producer, may be licensed to use a firearm on his land. There is no reason why a family member could not be authorised in the same way as any other person. A member of a family who seeks to apply to be colicensed can do so. If that was not the case, a stranger with authorisation from the primary producer would have more rights to be licensed than a member of the producer's family.
Section 8 is therefore intended to be a relaxation of what is otherwise a very strict licensing regime, but it is not intended to be restrictive in itself.
The Tribunal finds that the respondent erred in its reasoning that a family member is automatically precluded by working of s 8(1)(i) of the Firearms Act 1973 (WA) from being licensed. The respondent further erred by contending during the hearing that since the applicant is precluded from being licensed, the licensing officer was under no obligation to even consider whether he had a genuine reason pursuant to s 11A to be licensed.
The answer to the first question is therefore that s 8(1)(i) of the Firearms Act 1973 (WA) does not automatically preclude the applicant from applying in his own right to be licensed.

Does the Firearms Act 1973 (WA) prohibit a category C licence from being colicensed?

Schedule 3 determines as follows in regard to a person who seeks to be licensed for a category C firearm:
Genuine need test for category C
The applicant is required to satisfy the Commissioner that a firearm of category A or B would be inadequate or unsuitable for the purpose for which the firearm is required.
Although the respondent contended that the Firearms Act 1973 (WA) prohibits the co-licensing of a category C firearm, he was unable to refer the Tribunal to the relevant provision that supports his contention. The respondent also contended that a colicensing of a category C firearm would mean that the firearms would have to be stored in a separate cabinet since the applicant is not licensed to have access to the category A and category B firearms of his father.
The Tribunal does not accept this contention of the respondent.
The Tribunal has been unable to identify any provision of the Firearms Act 1973 (WA) that precludes a person to be colicensed for a category C firearm. In order for a person to be colicensed, the respondent would have to consider the provisions of s 11 and s 11A of the Firearms Act 1973 (WA), but if those are satisfied, there is no general prohibition against colicensing.
The answer to this question is therefore that the Firearms Act 1973 (WA) does not prohibit a category C firearm from being colicensed.

Does the applicant have a genuine reason pursuant to s 11A of the Firearms Act 1973 (WA) to be licensed?

In order for the applicant to be licensed to hold the three category C licenses, he has to satisfy the following requirements:

(a)he must satisfy the respondent that a category A or category B license is inadequate or unsuitable for the purpose he seeks to be licensed (Firearms Regulations1974 (WA), Sch 3); and
(b)he must comply with the other restrictions imposed on the licensing of a category C firearm.

It is not contested by the respondent that the applicant is the son of a primary producer, Mr John Cutbush; that the applicant is actively involved in combating vermin on the property of Mr John Cutbush; that the applicant also intends to use the firearms for recreational shooting on the property of Mr John Cutbush; that Mr John Cutbush is licensed to hold three category C firearms; and that the applicant is a member of a registered shooting club, Busselton Clay Target Club (Inc).
The respondent explained that the licensing officer in effect refused to consider the merit of the applicant's application in the belief that he is automatically disqualified pursuant to s 8(1)(i)(i) of the Firearms Act 1973 (WA) from being licensed.
The Tribunal has already found that the applicant is not automatically disqualified by the working of s 8(1)(i)(i) of the Firearms Act 1973 (WA) and that the licensing officer had to consider the application on merit.
The reason why a category A or category B license is not adequate for the eradication of vermin on Mr John Cutbush's land has already been accepted by the licensing officer, hence the granting of the three category C licences to Mr John Cutbush.
Mr John Cutbush explains in his letter of 4 June 2009 why he approves of, and authorises his son to be colicensed to use the firearms on his property, namely that the applicant carries out vermin eradication on the land; the vermin are difficult to eradicate with category A and category B firearms; and the applicant is lefthanded which complicates the reloading of a boltaction rifle.
Schedule 3 1(b) provides as follows:
(1) An approval or permit can be granted or a licence can be issued for a firearm of category C only if -
…
(b) it is for a rifle or shotgun, and is granted or issued to a person who -
(i)is a primary producer or an approved nominee of a primary producer; and
(ii)requires the rifle or shotgun for the purpose of destroying vermin or stock as described in section 8(1)(i)(i) of the Act;
The three firearms, the subject of these proceedings fall within category C.
The use of the word 'or' as conjunction between rifle and shotgun does not suggest that only one of the two types of firearms can be licensed. A licensee can have both types of firearms, a rifle and a shotgun, included in his/her licence. This explains why Mr John Cutbush has been licensed to hold a rifle and a shotgun.
The Tribunal accepts that the applicant satisfies the requirements of this regulation. He is applying to be colicensed for rifles that are classified as:
•category C firearms;
• he is the son of a primary producer;
• the applicant's father is licensed to keep the three rifles;
•Mr John Cutbush has given written authorisation for the applicant to be colicensed; and
•the licensing is required for purposes of destroying vermin as provided for by s 8(1)(i)(i) of the Firearms Act 1973 (WA).
•he has a genuine reason as per s 11A(2)(b) and s 11A(2)(c) of the Firearms Act 1973 (WA).
The Tribunal also accepts the explanation given by the applicant that his father is often away from the land, that he has to buy ammunition from time to time and that, regardless of the working of s 30(1) of the Firearms Act 1973 (WA), it is often difficult to explain to a dealer why ammunition should be sold to a person who is not licensed to hold the firearms.
The Tribunal is therefore satisfied that the applicant has demonstrated that he has a genuine reason to be colicensed to hold the three category C firearms the subject of this application.

Findings

The findings of the Tribunal can be summarised as follows:
a)Section 8(1)(i) of the Firearms Act 1973 (WA) does not automatically preclude a family member of a primary producer from being licensed.
b)The Firearms Act 1973 (WA) does not prohibit a category C licence from being colicensed.
c)The applicant has shown to have a genuine reason to be licensed.

Orders

1.The application for review is successful.
2.The Commissioner of Police must forthwith issue to Mr Charles Cutbush a licence to hold the following firearms with his father, Mr John Cutbush:

a)Shotgun (self-loading) Franchi, serial No R47183, 12 gauge.
b)Shotgun Pump Repeater, Winchester, serial No L1602993, 12 gauge.
c)Rifle (self-loading), Gevarm, serial No 66946, .22 calibre.

I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
DR B DE VILLIERS, MEMBER

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Citations

CUTBUSH and COMMISSIONER OF POLICE [2010] WASAT 45

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