England v Commissioner of Police, New South Wales Police

[2006] NSWADT 95

CITATION:	England v Commissioner of Police, New South Wales Police [2006] NSWADT 95
DIVISION:	General Division
PARTIES:	APPLICANT Garth Armstrong England RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	053215
HEARING DATES:	02/09/05
SUBMISSIONS CLOSED:	12/14/2005
DATE OF DECISION:	04/04/2006
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Firearms (General) Regulation 1997 Firearms Act 1996 Interpretation Act 1987 Firearms (General) Amendment (Pistols) Regulation 2004
CASES CITED:	Maxwell v Murphy (1957) 96 CLR 261 Tan v Commissioner of Police, NSW Police Service [2003] NSWADT 224
REPRESENTATION:	APPLICANT In person RESPONDENT W Pisani, agent
ORDERS:	The decision of the Commissioner to refuse to issue the applicant with a permit to possess and use a pistol is affirmed.

Background

1 This is an application by Garth Armstrong England (“the applicant”) seeking review of a decision of a delegate of the Commissioner of Police (“the Commissioner”) to refuse his application for a permit, under s28 of the Firearms Act 1996 (“the Act”), to possess and use a category H pistol.

2 The applicant is 61 years of age and has been a farmer and grazier all his working life. Like a number of farmers and graziers he has been the holder of a licence or permit to possess and use a pistol throughout the time he has been farming. Currently, he is the holder of a category A, B, C firearms licence and has also held such a license or similar authority for many years. This licence authorises the applicant to possess and use particular types of long arm rifles as he had satisfied the Commissioner that his genuine reason for requiring such a licence was for the purposes of farming or grazing activities, including the destruction of diseased or injured animals, as well as hunting for the control and suppression of vermin and pest animals: see s.12 of the Act - primary production and recreational hunting/vermin control.

3 In addition to having licences to use and possess long arm rifles, the applicant has been the holder of a permit to possess and use a pistol, known as a category H firearm. The most recent issue of a permit to possess and use a category H pistol was issued by the Commissioner on 14 October 1998 pursuant to s.28(g) of the Act. That provision authorises the Commissioner to issue a permit “in such circumstances as the Commissioner considers appropriate.” At that time the Commissioner had interpreted this provision as giving him the power to issue a permit to use and possess a category H pistol where there was a need for such a pistol for primary production and vermin control purposes. That is, these circumstances constituted “appropriate” circumstance for the issue of a permit under s.28(g) of the Act.

4 At the expiration of his permit, in October 2003, the applicant made a further application for such a permit.

5 On 9 December 2003, a delegate of the Commissioner determined to refuse the applicant’s application for the permit. Following an internal review determination, which confirmed the original determination, the applicant lodged an application with the Tribunal seeking review: see File No 043074 (“the first application for review”). From the documents contained on the first application for review it is apparent that the reasons for refusal to re-issue the permit was similar to that which formed the basis of the Commissioner’s refusal to re-new permits of other farmer applicants. These reasons were based on the Commissioner having re-considered his interpretation of the Act, in particular those provisions that related to the issue of a category H pistol, and the Commissioner having re-assessed whether it was appropriate in these circumstances to issue a permit for a category H pistol. The Commissioner’s re-assessment was based on a report that he had received from Senior Sergeant Hoffman to the effect that long arm rifles were more suitable and appropriate than pistols in the destruction of wild animals in their natural environment and farm animals.

6 On 14 September 2004, at a directions hearing of the applicant’s first application for review, the Tribunal remitted the Commissioner’s decision, the subject of that application, for reconsideration by the Commissioner. The Commissioner contended in this application that at the directions hearing of September 2004, the Tribunal also set aside the decision of the Commissioner. However, there is no record of such an order having been made. What is recorded is a further directions hearing on 17 December 2004 and 1 February 2005 in respect to the applicant’s first application for review. Between these directions hearing dates, on 14 January 2005, yet another delegate of the Commissioner made a fresh determination to refuse the applicant’s application for the permit. This decision was based on amendments that had been made to clause 9 of the Firearms (General) Regulation 1997 (“the Regulation”) by the Firearms (General) Amendment (Pistols) Regulation 2004 (“the 2004 Amendments”). The applicant immediately made an internal review request of this fresh determination.

7 On 1 February 2005, at the directions hearing of his first application for review, the applicant withdrew his application and the Tribunal recorded the application as being “withdrawn/dismissed”.

8 On 25 May 2005, yet another delegate of the Commissioner determined the applicant’s internal review request. This internal review determination affirmed the determination of 14 January 2005 and as a result of this internal review decision, on 22 June 2005, the applicant lodged this application. Accordingly, the decision for review in this application is the internal review decision of 25 May 2005 but it relates to the applicant’s October 2003 renewal application as no further application was lodged.

Issues

9 This application raises several issues. The first issue is one going to the jurisdiction of the Tribunal to hear and determine the matter. The Tribunal raised this issue with the parties following the hearing of the matter and after the Tribunal had examined the file for the first application for review and found that it had been dismissed. Having raised the issue the Tribunal sought submissions as to whether the dismissal of the applicant’s first application for review prevented the applicant from lodging a further application for review in respect of his October 2003 application. The parties argued that the dismissal did not prevent the applicant from submitting a further application where the Commissioner had re determined his decision. For the reasons set out below the Tribunal agrees with their contentions.

10 The second issue is whether, at the time the Commissioner re-considering his decision on the applicant’s application for a permit, the 2004 Amendments to the Regulation applied in making that decision. If it did apply, it was the applicant’s contention that he had produced evidence to establish that he came within the exception contained in cl.9(4), namely that he had a medical condition or disability that prevented him from using a rifle or shotgun in his farming activities, in particular in those areas of his property which consisted of rough terrain and which were densely timbered.

11 The final issues is whether the Commissioner’s decision of 25 May 2005 was the correct and preferred decision having regard to the relevant facts and the applicable law: see s.63 Administrative Decisions Tribunal Act 1997 (“the ADT Act”).

Jurisdiction

12 The procedure adopted by the Tribunal in disposing of the applicant’s first application for review is somewhat unusual. What is clear is that the Tribunal had determined that the internal review decision, the subject of the first review application, was to be remitted to the Commissioner for re-consideration. That decision appears to have been made on the application of the Commissioner and with the consent of the applicant.

13 The ADT Act contains two provisions that provide for the remittal of an administrator’s decision for reconsideration: see ss.63(3)(d) and 65 of the ADT Act. Section 63 relates to the manner in which the Tribunal is to determine an application for review. Sub-section 63(3) sets out what the Tribunal may decide in determining an application for review. This includes paragraph 63(3)(d) which provides the Tribunal may set aside the administrator’s decision that is the subject of review and remit the matter to the administrator for reconsideration in accordance with any directions or recommendations of the Tribunal. Where an application for review is determined under paragraph 63(3)(d) this disposes of the application for review. On the other hand a decision to remit, under section 65 of the ADT Act does not operate to dispose of the application for review. Under this section, the Tribunal has power to remit at any stage of the proceedings, and where the decision is remitted under this section the administrator is given power to either affirm the decision (s.65(2)(a)), vary the decision (s.65(2)(b)), or set the decision aside (s.65(2)(c)). Where an administrator’s decision is remitted under this section the applicant’s application remains before the Tribunal and if the administrator affirms the decision the application will be dealt with in the usual way. However, where the administrator varies the decision or sets aside the decision and makes a new decision, the applicant is given a choice of either proceeding with the application for review, with the varied or new decision becoming the decision that is the subject to review, or the applicant can withdraw the application.

14 In this matter, it would appear that the Tribunal’s determination to remit the Commissioner’s original internal review decision for reconsideration was made pursuant to s.65(1) and that the Commissioner did in fact reconsider his decision and set it aside and substituted a new decision, that was based on different grounds. As explained above, the Commissioner having reconsidered his decision did not automatically dispose of the applicant’s first application for review. The applicant had two choices. One was to continue to proceed with his application with the new decision being the subject of review, or he could have, as he did, withdraw his application. In the normal course of events, a withdrawal of the application would be the end of the matter. However, as mentioned above, the Commissioner accepted a request for internal review of the substituted decision and he went on to make a new internal review determination.

15 The Commissioner contended that notwithstanding the withdrawal of the first application for review, the fact that the Commissioner had made a new internal review determination was sufficient to give the applicant a right to seek review under s.55(1) of the ADT Act. That sub-section gives an “interested person” a right to make an application to the Tribunal for review of a “review decision” where an internal review has been finalised under sub-section 53(9), the application was made in the manner prescribed and it was made within the time prescribed.

16 In this matter there is no dispute that the substituted decision of the Commissioner is a “reviewable decision” (see ss.6(2), 38 ADT Act), that the applicant is an “interested person” (see s.4 ADT Act) and that the application for review was made in the prescribed way and within the prescribed time. What is unusual is that the Commissioner accepted an internal review request on his substituted decision following remittal by the Tribunal. No such requirement is contained in s.65 and it would appear to be something that the applicant was not entitled to request under s.53(10) of the ADT Act.

17 Notwithstanding these provisions, in my opinion, the Commissioner having accepted the applicant’s internal review request of the substituted decision and then having made an internal review application gave the applicant the right to make a fresh application for review to the Tribunal. That is, the fact that the applicant had withdrawn his first application for review did not in any way prejudice his further application for review as it was based on a new decision.

Do the 2004 Amendments apply?

18 The 2004 Amendments to the Regulation came into effect on 3 December 2004. Schedule 1 of the 2004 Amendments inserted a new cl.5A and a new sub-cl.9(3) and (4) into the Regulation. The new cl.5A expressly limited the purposes for which the Commissioner can issue a category H (pistol) licence and the new sub-cl.9(3) and (4) restricted the circumstances in which the Commissioner can issue a permit to possess and use a pistol. The new sub-clauses in cl.9 provide as follows:

“cl.9(3) The Commissioner must refuse to issue a permit authorising the possession or use of a registered pistol if the Commissioner is satisfied that the applicant intends to possess or use the pistol for the purposes of:-
(a) hunting (including the control or suppression of vermin or pest animals) or fishing, or

(b) farming or grazing activities (including the destruction of diseased or injured animals).

(4) However, subclause (3) does not apply in relation to an applicant if the Commissioner is satisfied on production of such evidence as the Commissioner may require, that the applicant has a medical condition or disability that prevents the applicant from using a rifle or shotgun for the purposes referred to in that subclause. ”

19 The explanatory note to the 2004 Amendments provided as follows:

“The objects of this Regulation are as follows:

(a) to make it clear that a category H licence issued for the genuine reason of business or employment does not authorise the possession or use of a pistol for a purpose that is a genuine reason other than business or employment (such as recreational hunting/vermin control or primary production);

(b) to require the Commissioner of Police, except in certain cases, to refuse to issue a permit for a pistol if the pistol is to be used for the purposes of hunting or fishing or farming or grazing activities;

(c) to make it clear that pre-1900 muzzle loading percussion lock pistols are exempt from the licensing and registration requirements of the Firearms Act 1996 only if they are single shot pistols.

This Regulation is made under the Firearms Act 1996 , including sections 8(3), 29(5) and 88 (the general regulation-making power).”

20 It is not disputed that the effect of the 2004 Amendments was to require the Commissioner to refuse an application for the issue of a permit to possess and use a category H pistol where the applicant’s stated need for the permit was for the purpose of hunting, fishing, farming or grazing. The question, as stated above, is whether the Commissioner, and in his place the Tribunal, is bound to apply these provisions to an application that was made some 15 months prior to the 2004 Amendments having come into force.

21 At common law, it is a well established principle that, in the absence of a clear statement to the contrary, an Act or Regulation (including an amending Act or Regulation) will not be construed to have a retrospective operation: see Maxwell v Murphy (1957) 96 CLR 261 per Dixon CJ at 767. However, for an Act or Regulation to have a retrospective operation its provisions must impinge on the existing rights or obligations of a person. These common law principles are now incorporated in s.30 of the Interpretation Act 1987 (NSW), in particular s.30(1)(c).

22 Accordingly, the question is whether the 2004 Amendments impinge on the rights or obligations of the applicant to being issued with a permit to possess and use a category H pistol. This requires a brief examination of the provisions of the Act and the Regulation if any, which relate to the rights of existing permit holders to the renewal of their permit.

23 The provisions relating to the application for and the issue of permits are contained in Division 3 of Part 2 of the Act. These provisions make no reference to an application for the renewal of a permit. Nor are there any provisions that relate to the application for a subsequent permit. The provisions only make reference to the application for and issue of a permit and cl.21 of the Regulation provides that a permit once issued continues in force for five years (or shorter period if prescribed or determined by the Commissioner) unless sooner surrendered, revoked or otherwise ceases to be in force. In this matter the applicant’s permit to possess and use a category H pistol had been in force for five years when he made his application for renewal.

24 Clause 15 of the Regulation provides that “a licence or permit may be renewed by making an application, in accordance with the Act and this Regulation, for a new licence or permit (referred to in this Regulation as a “subsequent” licence or permit”. And cl.16 of the Regulation provides that holders of a current licence and permit who, prior to the expiration of their existing licence, make a subsequent application for a licence or permit then such persons are able to continue to possess and use their firearms under their existing licences or permit until such time as the Commissioner determines their subsequent application.

25 From the express words of the abovementioned provisions it is clear that Parliament did not intend for persons who had been issued with a permit or licence under the Act to be automatically entitled to the renewal of that permit or licence once it had expired. Instead, what the express words indicate that Parliament intended existing licence and permit holders to make a fresh application once their licence or a permit had expired and that the Commissioner was to consider that application as if it was the first application. The only right given to former licence and permit holders is to continue to possess and use their firearm under their existing licence or permit. In effect cl.16 operates to extend the period of the licence or permit until the Commissioner has made his determination on the subsequent application. At most, this right gives the applicant for a subsequent licence or permit an expectation that the subsequent licence or permit will be issued if there has been no change in circumstances since the existing licence or permit was issued. But it is not a right to being issued with that subsequent licence. The right to a subsequent licence or permit depends on the applicant again satisfying the Commissioner that he has met each of the legislative requirements for the issue of the licence or permit applied for. In this application, had the Commissioner determined to issue the permit to the applicant prior to the 2004 Amendments being enacted then the applicant would have acquired a right to that permit and in the absence of express words to the contrary in that amending regulation, the Commissioner could not have re-determined the application in accordance with the 2004 Amendments.

26 The real issue in this matter is whether the 2004 Amendments apply to applications for a licence or permit that pre-dated the commencement of the Amendments. Section 39(1) of the Interpretation Act 1987 provides that a statutory rule is to be published in the Gazette and that it “shall take effect on the day on which it is so published” or on a later day if so specified in the rule. In this case the 2004 Amendments were published in the Gazette on 3 December 2004 and the amendments did not specify a later date for them to take effect. As was pointed out in Tan v Commissioner of Police, NSW Police Service [2003] NSWADT 224 at [20] this means that in the ordinary course of events from this date on the Commissioner, in determining an application for the issue of a permit under s.28(g) of the Act, was required to take into account the requirements of cl.9(3) and (4). Similarly, the 2004 Amendments apply to the Tribunal’s determination of this application.

Whether the Commissioner’s decision is the correct and preferred decision?

27 In determining whether the Commissioner’s decision is the correct and preferred decision the Tribunal is to have regard to the applicable law and the relevant facts: see s.63 of the ADT Act. While the Tribunal has found that the 2004 Amendments, in particular cl.9(3) & (4) apply to its determination of this application, these are not necessarily the only relevant legislative provisions. The other relevant provisions, in the event the applicant is able to satisfy the Tribunal that he comes within the exception contained in cl.9(4), are those contained in Division 3 of Part 2 of the Act, in particular s.28(g) of the Act.

28 Having regard to the relevant legislative provisions, in my opinion, it is appropriate to first determine whether the applicant has produced sufficient evidence to bring him within the provisions of the exception contained in cl.9(4) of the Regulation. If he fails to do so then cl.9(3) required the Commissioner, and now the Tribunal, to refuse the application as purpose the for which the permit had been sought was hunting and primary production. If it is found that the applicant has established that he comes within the exception in cl.9(4) then it must still be determined that it is in all the circumstances “appropriate” for the applicant to be issued with the permit sought: see s.28(g) of the Act.

Medical condition or disability of the applicant

29 In his oral evidence the applicant said that he lived on a 779 hectare property which is located about 20kms outside Grenfell in the State of New South Wales. It is not disputed that about 160 hectares (about 1/5th) of his property is made up of very rough terrain, which is densely and heavily timbered. Nor is it disputed that the only means of travelling through this terrain is by foot. The applicant explained, as owner of this land, he has an ongoing obligation to control wild and feral animals such as rabbits and wild pigs that inhabit this terrain. He has always done this on his own, without any help. In the rough terrain he has always taken his pistol as he is unable to carry a long arm rifle together with all the other equipment he needs to carry. This other equipment includes a spade, gas and a gas mask. He also explained that a long arm rifle was difficult to use in this terrain and that it was impractical to continually go out of the rough terrain and collect his long arm rifle each time he came across a wild or feral animal. He would need to collect its safe storage at his home as it would be unlawful for him to leave it in his car or truck that is parked on the outskirts of that terrain. He said that since he had been diagnosed as suffering from hypertension his doctor has advised him to reduce his levels of stress, which included reducing the amount of weight that he carried around with him on the property. It was his hypertension that the applicant contended which was a medical condition that brought him within the exception contained in cl.9(4) of the Regulation.

30 In support of his contention the applicant relied on 2 letters from his general practitioner, Dr F W P Cradock. The first letter was forwarded to the manager of the NSW Police Fire Arms Registry on 7 January 2005. In that letter Dr Cradock said the following:

“Garth Armstrong England is a long term client of mine at Cowra Medical Centre, and due to his advancing years combined with his past and continuing condition of hypertension, I consider that he qualifies for acceptance to hold a pistol license/permit under the Fire Arms (General)Regulation 1997 Section 9(4) which reads:

…

It is lighter and easier for him to carry a pistol in thick bush and rough terrain than it is for any type of long arm, especially while carrying tools needed for rabbit control in bush impenetrable to vehicles.”

31 The second letter from Dr Cradock is dated 27 July 2005 in which he said: -

“Garth Armstrong England is a long term patient of mine, and due to his advancing years, combined with his continuing volatile hypertension (which is hard to satisfactorily control on a daily basis with medication), I have advised him to reduce his load while carrying out mandatory control of feral pests in thickly timbered and rough terrain and in all other pursuits for that matter.

This would preclude him from carrying long arms and therefore qualify him to hold a pistol permit under Fire Arms (General) Regulation 1997, Section 9/4 as indicated in my previous letter to you dated 29/7/2004.”

32 Dr Cradock gave additional oral evidence by telephone at the hearing. He explained that while the applicant was on medication, he still needed to reduce the strain that it placed on his heart by carrying heavy weights. In this regard he said that the applicant should not carry anything more than 3 to 4 kilos. He acknowledged that the applicant’s hypertension did not prevent him from using his long arm rifles in normal conditions. However, in his opinion on those occasions when the applicant needs to use a firearm in the heavily timbered and rough terrain of his property he should not increase the load that he carries by carrying a long armed rifle. Dr Cradock explained that he was familiar with what was required in controlling wild and feral animals as he also lives on and runs a farm. While Dr Cradock’s experience as a farmer in the area has some relevance in respect of his opinion as to the particular farming or hunting activities which may affect the applicant’s medical condition, the question of whether this medical condition is such to bring the applicant within the exemption is a matter for the Commissioner to determine having regard to all the relevant circumstances.

33 The Commissioner contended that the evidence of Dr Cradock was not sufficient to bring the applicant within the exception contained in cl.9(4) as Dr Cradock had readily acknowledged that the applicant’s medical condition did not per se prevent him from using a rifle or shotgun. Mr Pisani, who appeared for the Commissioner, submitted that the exception only applied where an applicant’s medical condition was such that he could under no circumstances use a long arm rifle for the purposes of hunting, or farming or grazing activities. The example he gave was a farmer with only one hand. This he said was a disability that stopped such a farmer from using a long arm rifle as two hands are needed. As pointed out by Mr Pisani, the evidence in this matter was that the applicant could in fact hold and did use a long arm rifle for the same purposes for which he had sought a permit to possess and use a pistol.

34 It was the applicant’s contention that for the purpose of the exception in cl.9(4) the hunting and farming and grazing activities for which he had sought a permit must be considered in their proper factual context. While he readily acknowledged that his hypertension did not stop him from using a long arm rifle in the open portions of his property, this medical condition he argued did have that effect on his use of a long arm rifle in rough terrain of his property.

35 While I do not accept the Commissioner’s very narrow construction of cl.9(4) and I agree with the applicant that in determining whether an applicant comes within the exception it is necessary not only to consider the particular medical condition of the applicant but it is also necessary to consider that condition in the different contexts in which the applicant proposes to use a firearm to hunt, farm and graze. Each application will of course be determined on its own particular facts.

36 In this application, while I accept the applicant’s evidence as to the difficulty he has in carrying a long arm rifle in the rough terrain of his land, that difficulty is entirely due to the fact that he carries other items with him for the purpose of rabbit eradication and the control of other wild animals. I also accept that the applicant’s medical condition is such that he should not be carrying heavy weights. However, his medical condition is not such that he cannot carry a long arm rifle through the rough terrain and on this basis I find that the applicant has failed to satisfy the Tribunal that he is prevented from using a long arm rifle for the purpose of hunting, farm and grazing activities in this terrain. The applicant has clearly been required to change many of his former practices when engaging in his activities of hunting and farming as a result of his medical condition. He will need to do the same in regard to his former practices when engaging in these activities in the rough terrain of his land.

37 The Tribunal understands that the applicant may find it difficult to change his practices in this regard as he has for so many years used a pistol. While this had been previously authorised, the 2004 Amendments make it clear that Parliament intended that a permit to possess and use a pistol for the purpose of hunting, farming and grazing activities should only be given in a particular circumstance; namely when the applicant for such a permit cannot, because of a medical condition or a disability, use a long arm rifle which is the usual form of firearm that is used in such an activity.

Whether it is appropriate to issue a permit in the circumstances

38 In light of my findings above it is not necessary for me to consider this aspect of the application other than to indicate that s.28(g) of the Act gives the Commissioner a wide discretion in determining whether to issue a permit. That paragraph enables the Commissioner to issue a permit “… in such circumstances (i.e. purposes) as the Commissioner considers appropriate”

39 Although it is a wide discretion it must be exercised having regard to the principles and objects of the Act, as well as the other express licensing and permit provisions in the Act. The principles and objects are set out in s.3 of the Act and the essence of these are that possession and use of a firearm is a privilege and is conditional on the overriding need to ensure public safety: see s.3(1)(a). In my opinion, with these express words Parliament has indicated that the licensing and permit provisions of the Act and the Regulation should be strictly interpreted.

40 For the reasons set out above, in my opinion the decision of the Commissioner to refuse to issue the applicant with a permit to possess and use a pistol is the correct and preferred decision.

Orders

41 The Tribunal orders that the decision of the Commissioner to refuse to issue the applicant with a permit to possess and use a pistol is affirmed.