Field v Commissioner of Police, New South Wales Police

[2004] NSWADTAP 52

Appeal Panel - Internal

CITATION:	Field v Commissioner of Police, New South Wales Police [2004] NSWADTAP 52
PARTIES:	APPELLANT Michael Thomas Field RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	049020
HEARING DATES:	11/08/04
SUBMISSIONS CLOSED:	08/11/2004
DATE OF DECISION:	11/26/2004
DECISION UNDER APPEAL:	Field v Commissioner of Police, New South Wales Police (2004) NSWADT82
BEFORE:	O'Connor K - DCJ (President); Molony P - Judicial Member; Bolt M - Non Judicial Member
CATCHWORDS:	statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	033304
DATE OF DECISION UNDER APPEAL:	04/30/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Evidence Act 1995 Firearms Act 1996 Firearms (General) Regulation 1997
CASES CITED:	Andrew William Godfrey (by his tutor Carol Ruth Godfrey) and Carol Ruth Godfrey v New South Wales (No 1) [2003] NSWSC 160 Bennett v Commissioner of Police, NSW Police [2004] NSWADT 187 Clyne v Commissioner of Police, New South Wales Police [2004] NSWADT 52 Finlay v Commissioner of Police, NSW Police Service [2004] NSWADT 152 Fraser v Commissioner of Police, NSW Police [2004] NSWADT 184 House v The King (1936) 55 CLR 505 Nixon v Commissioner of Police, New South Wales Police Service [2000] NSWADT 76 Voros v Janosne; Estate of Anna Gdyro [2000] NSWSC 1166 Weal v Bottom (1966) 40 ALJR 436 Webeck v Commissioner of Police, New South Wales Police [2004] NSWADT 229
REPRESENTATION:	APPELLANT G Sundstrom, counsel RESPONDENT P McLaughlin, solicitor
ORDERS:	1. Decision under appeal set aside; 2. Application remitted to the Tribunal differently constituted.

1 This appeal concerns the application of the Firearms Act 1996 (Firearms Act) to persons claiming a need to use pistols in connection with the management of a farm.

2 By way of background, it is necessary to explain that the Firearms Act allows the Commissioner to issue ‘licences’ or ‘permits’ for the use and possession of firearms. The licence provisions are very detailed (Part 2, Divisions 1 and 2). The permit provisions are less detailed (Part 2, Division 3); and are spelt out to a significant extent by the Firearms (General) Regulation 1997 (Firearms Regulation), Parts 5 and 6.

3 Relevantly to this case, the Commissioner has the power under s 28 to:

‘issue permits for any one or more of the following purposes: …

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

4 This head of power is, in contrast to a number of other heads of power found in s 28, not subject to elaboration in Parts 5 and 6 of the Firearms Regulation.

5 Also relevant to this case is s 29 (General restrictions on issuing permits) which provides:

(1) A permit must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. …

(4) Despite any other provision of this section, the Commissioner may refuse to issue a permit if the Commissioner considers that issue of the permit would be contrary to the public interest.’

6 The Commissioner’s interpretation of the Firearms Act has consistently been that licences can not be granted to primary producers for the use and possession of pistols (the view is based on reading the main general provision, s 12, alongside the limitations as they apply to pistol licences found in s 16). On the other hand the Commissioner’s interpretation had, until a change of policy during 2003, been that he could exercise the discretion given by s 28(g) and issue to primary producers a permit to use and possess a pistol where they demonstrated a special need, were of good character and had otherwise conducted themselves in a manner that had not raised safety concerns. The permits were called ‘primary producer pistol permits’.

7 Under the new policy the Commissioner decided to refuse all future applications for these permits on the basis that it would tantamount to allowing by permit an outcome that could not achieved through grant of a licence. The Commissioner was of the view that previous practice was unlawful – though no action appears to have been taken to revoke permits that still had time to run. The blanket refusal policy is recorded in the following circular issued to staff by the Manager, Firearms Registry (an authorised delegate of the Commissioner) on 27 August 2003 (see attachment to Commissioner’s submissions to primary hearing):

‘I find it compelling that the genuine reasons of recreational hunting/vermin control; primary production and vertebrate pest animal control are not contained within section 16 [the Category H (pistol) licence provision]. Following legal advice provided to the Commissioner of Police from Legal Services through my office, I advise that I do not consider it appropriate for a permit to be issued under section 28(g) for the purpose of possessing and using a Category H firearm (a pistol) by reason of carrying out duties as a primary producer or for the purpose of recreational hunting/vermin control or for vertebrate pest animal control.’

8 The result has been that a number of applications for review have been heard by the Tribunal over the last 15 months from primary producers who previously held pistol permits.

9 In response to the first cases, Tribunals (variously constituted) held that it is open to the Commissioner to grant a permit to primary producers for the use and possession of pistols (see, e.g., Clyne v Commissioner of Police, New South Wales Police [2004] NSWADT 52). We agree that, as a matter of law, there is nothing in the Firearms Act and Regulation which prevents that course.

10 Perhaps reacting to these decisions, the Commissioner’s delegate (Manager, Firearms Registry) issued a revised interpretation on 16 March 2004 stating materially that: ‘I advise that unless exceptional circumstances exist, I do not consider it appropriate for a permit to be issued under section 28(g) …’ (our emphasis).

11 Mr Field’s application was refused initially on 30 June 2003 (ahead of the commencement of the blanket refusal policy), and then on internal review by decision dated 22 September 2003 when the blanket refusal policy was in force. The internal review determination simply recited, and relied on, the blanket refusal policy. There was no substantive consideration of Mr Field’s case. There had been little consideration of that case in the original refusal.

12 Consequently the grounds upon which Mr Field relied in making his application had received no close substantive consideration until they reached the Tribunal. The Commissioner’s submissions to the Tribunal in reply were filed on 23 January 2004, and relied in line with the Registry’s position at the time on the blanket refusal policy. The Commissioner’s submissions indicated that there was no objection to Mr Field on character or safe-handling grounds.

Tribunal Hearing

13 The hearing was held on 31 March 2004. By that date the Registry had, as noted above, (circular, 16 March 2004) changed its interpretation so as to allow for exceptions. As also noted, the circular did not spell out by way of criteria what might be regarded as exceptional circumstances.

14 Mr Field put the following evidence before the Tribunal.

15 He noted that he is a grazier located at Jugiong in southern New South Wales and is the manager and managing director of five large rural properties located throughout New South Wales. Three of the properties are situated along the Murrumbidgee River, one on the Lachlan, and one on the McDonald River. Their total acreage is 262,000. His evidence was that due to the nature of the country a lot of the mustering of sheep and cattle is done on a two wheel motorbike along the river. He said much of the terrain near the river, especially along the Murrumbidgee, is steep and rugged, affected by fallen timber and very boggy water holes. He said that these situations were perfect havens for feral animals such as pigs, foxes and wild cats. Sometimes he also comes across distressed livestock. He said that carrying a ‘long arm’ (a rifle or shotgun) is both difficult and very dangerous on a motorbike; and access to these areas by four wheel drive (in which might be kept a ‘long arm’) is impossible.

16 Mr Field’s opinion as to the need for a pistol was supported by Senior Constable Barnes (Jugiong), who referred to the terrain along the Murrumbidgee; Sergeant Ridley (Hay), to similar effect; Senior Constable Harper (Walcha Road), who referred to the thick bushland and mountainous terrain of the property at Woolbrook on the McDonald River; and two co-directors with direct knowledge of his farming environment - James S Cuming AM and Brian Davidson, Partner, Deacons, solicitors.

17 The police references also referred to his good character and his safe practice in relation to storage of the pistol.

18 A noteworthy feature of the case is that the Police Commissioner led no evidence going to the questions of the humane destruction of sick animals in thick bush and steep terrain, practical measures for dealing with feral animals in such terrain, the practicalities or otherwise of the use of motor bike stowed or distant-vehicle stowed scabbards, and the safety considerations relating to having to leave a situation of distress or danger in order to retrieve a stowed weapon.

19 Mr Field has an understandable sense of grievance over the outcome of his case in the Tribunal. There have been several cases heard by the Tribunal over the last 12 months where similar claims made by other primary producers have been successful. There have been several reported cases where the Tribunal has reversed the Commissioner and granted a permit in circumstances generally similar to those relied upon by Mr Field: see for example: Nixon v Commissioner of Police, New South Wales Police Service [2000] NSWADT 76; Fraser v Commissioner of Police, NSW Police [2004] NSWADT 184; Bennett v Commissioner of Police, NSW Police [2004] NSWADT 187; and Finlay v Commissioner of Police, NSW Police Service [2004] NSWADT 152.

20 The view expressed by several applicants, and accepted by the Tribunal in some of the cases, is that when disposing of distressed stock or dealing with feral pests in difficult heavily timbered terrain the pistol because of its smallness and its portability, is much to be preferred to a ‘long arm’ which is either impossible or difficult to carry safely into such terrain. In reply to Firearms Registry suggestions that they could go back to the conveyance they have used to enter the terrain (car, motor cycle, horse) to get a long arm (possibly held in a scabbard), applicants have said that this means leaving an animal in distress, turning one’s back on an animal that may be dangerous (feral pig, for example) or that the delay may mean that an animal is left to suffer for longer.

The Tribunal’s Reasons

21 As the Tribunal noted at para [4] of its reasons, the Commissioner’s original reasons for decision had proceeded on the assumption that a discretion was open to be exercised. The Tribunal referred to the view expressed in those reasons that it was necessary to show that alternative means to use of a pistol were not available. On the other hand, as already noted, the internal review determination did not respond to the discretionary arguments made by Mr Field in reply to the original determination refusing his application. By the time the matter came on for hearing the Commissioner had reverted to the view that a discretion could be exercised: see para [11] of the Tribunal’s reasons.

22 The Tribunal referred to Mr Field’s evidence, in similar terms to the summary already given in these reasons. It is apparent from the reasons that the following matters were put to Mr Field by way of cross-examination:

(a) that instead of shooting distressed cattle, he could cut the throat of a trapped and distressed animal of that size, even when they are in a weakened state – Mr Field rejected this as less safe and not as humane

(b) as to whether he could carry a rifle over his shoulder, Mr Field’s reply was that it would be unsafe for him to carry a rifle in such close country, and it might knock him from his motor bike

(c) as to whether a scabbard could be mounted on the motor bike, Mr Field’s reply was that this would be dangerous

(d) as to leaving the area, walk out, get a rifle from a vehicle in more open terrain and walk back in, Mr Field’s reply was that this would be impractical for various reasons (delay, animal might move, need a person to stand by and wait).

23 The Tribunal then moved to its reasons for affirming the Commissioner’s decision to refuse to renew the permit:

‘19 The Firearms Act makes the possession and use of pistols more difficult than the possession and use of long-arm rifles. The circumstances in which a licence can be issued for a pistol are limited and must be viewed in light of the paramount considerations of public safety and the public interest.

20 As I said in Clyne, it may be overly restrictive, or may fail to properly reflect the range of special needs faced by primary producers, that primary production does not constitute a ‘special need’ for the purposes of a category H firearm licence. It is however the current state of the legislation and indicates the narrow basis on which the Firearms Act anticipates category H pistols will be possessed and used. That is a relevant circumstance to consider when deciding is (sic – if?] the issue of a permit is appropriate.

21 Mr Field’s need for a pistol is neither frequent or constant. Alternative methods, although less convenient, are available. He acknowledges not having tried to use a scabbard for a rifle on the motor bike, and relies on only hearsay as to the unspecified dangers of doing so.

22 Counsel for Mr Field argues that Mr Field’s situation must be distinguished from that of the applicant in Clyne, and that Mr Field’s is a more compelling case for the issue of a permit for a pistol. He submits that Mr Field uses a pistol for the humane destruction of distressed animals, not for the destruction of feral animals, and that Mr Field’s use of a pistol is a necessity, not a mere convenience.

23 As to the first point, I agree that that is a distinction that can be made as to the reason for which Mr Field uses a firearm. I do not accept that the distinction, in itself, makes it any more appropriate that a permit for a pistol be issued. Even if it did, Mr Field would have to show that the use of a pistol rather than a long-arm is necessary, rather than merely desirable or convenient. The question of convenience versus necessity brings me to the second point.

24 I do not accept that the use of a pistol is necessary in the circumstances. Mr Field concedes that there are other ways of getting a firearm to a distressed animal, one of which – using a rifle scabbard – he hasn’t tried, and another, - walking out and back in – is inconvenient. Senior Constable Barnes says that a pistol would be “more easily carried” than a long arm.

25 I acknowledge that not using a pistol is no doubt a considerable inconvenience, making Mr Field’s work more difficult and time consuming but, weighed against the considerations of public safety and the public interest that are paramount in the Act, that is not enough in my view to make it appropriate to issue a permit for a pistol.

26 Nor am I satisfied that not using a pistol makes Mr Field’s work more dangerous. Mr Field cannot say why or how carrying a long arm in a scabbard is dangerous except that that is an impression he has formed. Senior Constable Barnes does not in his letter say why or how a pistol would be a safer option. Sergeant Riley says that it would be safer “due to the nature of the country”, and Senior Constable Harper says that “it would be much safer, for not only Mr Field himself but others who may be in tow of Mr Field”. However neither Sergeant Riley nor Senior Constable Harper expresses a view on alternatives to carrying a pistol, such as carrying a long arm in a scabbard, or going back out to get a long arm on foot when the need arose.

Decision

27 Informed by the approach taken by the Act to the issue of licences for primary production, by the paramount concern for public safety, by Mr Field’s evidence as to when and how his need for a pistol arises, and by the alternatives available, I am not satisfied that Mr Field’s circumstances are such that the issue of a permit is appropriate.’

24 It emerges from the above that the Tribunal regarded the following considerations as relevant to the exercise of the power to issue a permit:

(a) the restrictive approach found in the licensing provisions to the grant of pistols for primary production as against shot-guns and rifles (para [19]) in particular, that primary production does not constitute a ‘special need’ for the purposes of a category H firearm licence (para [20]).

(b) whether the need for a pistol is ‘frequent or constant’ (para [21])

(c) extent to which the applicant has attempted to use alternative methods, even if less convenient (para [21])

(d) risk to personal safety associated with alternative methods (para [22])

(e) considerations of animal welfare (para [22])

(f) these considerations must be balanced against the considerations of public safety and the public interest that are paramount in the Act (para [25]).

25 An appeal to the Appeal Panel against a decision of the Tribunal is as of right in respect of a question of law. It may only extend to the merits of the decision by leave of the Appeal Panel. See s 113(2) of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act). Appeal Panels have repeatedly indicated that they will not ordinarily grant leave to extend to the merits if no error of law is demonstrated.

26 Mr Sundstrom, of counsel, appeared for Mr Field. He acknowledged that an exercise of a judicial discretion can not readily be interfered with on error of law grounds. Mr Sundstrom’s essential submission was that the Tribunal in exercising the discretion given by s 28(g), as informed by s 29(4), failed to have regard to some relevant considerations and had regard to an irrelevant consideration.

27 The irrelevant consideration was frequency of the need for the weapon. Mr Sundstrom submitted that while the Tribunal had properly taken into account Mr Field’s need for a pistol, it had then erred by holding that the demonstration of a need for a pistol was not enough. It had required, in effect, that there be a reasonable frequency of the need: see para [21]. This went too far.

28 The relevant considerations to which no regard was given or insufficient regard was given concerned safety. In particular he submitted that personal safety considerations were not addressed. He was critical of the Tribunal’s approach to the assessment of whether there were adequate alternatives to the use of a pistol in the circumstances described by Mr Field.

29 Mr McLaughlin’s submission was that the present appeal raises no question of law, and is merely an attempt to have reversed the Tribunal’s conclusions as to the merits. Mr McLaughlin acknowledged that the circumstances dealt with in Finlay v Commissioner of Police, NSW Police Service [2004] NSWADT 152 (28 July 2004) were very similar to the present case. In his view the Finlay case was a stronger one than the present case, especially in relation to the extent of the independent evidence in support produced by the applicant. In any case, he submitted that variations in determinations on the merits will occur in the Tribunal as an ordinary consequence of different members being involved and because no two cases are identical.

Assessment

30 The narrow occasions when a discretionary judgment can be interfered with were explained by the High Court in House v The King (1936) 55 CLR 505 as follows:

‘If the judge acts upon a wrong principle, if he allows extraneous matters to guide or affect him, if he mistakes the fact, if he does not take into account some material consideration, then his determination should be reviewed, and the appellate court may exercise its own discretion in substitution for his if it has the material for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong had in fact occurred.’

31 We should indicate that we accept that in the abstract the factors identified by the Tribunal are relevant ones (with the exception of the ‘frequency of need’ factor, further discussed below). While the constraints found in the Act in connection with licences may inform the Commissioner’s discretion they do not govern it: see now Webeck v Commissioner of Police, New South Wales Police [2004] NSWADT 229 at [7] per Hennessy DP.

32 Nonetheless there are, we consider, a number of problems with the reasoning.

As to Considerations (a) and (b):

33 Once the ‘need’ for the weapon is established, we agree that frequency or constancy of use ought not be regarded as an additional requirement. Frequency may inform the judgment on need, but it should not stand apart from it. The relevant point is made appropriately in Finlay at [42]-[43]: ‘That need must be real and not hypothetical based on an assumed future event’: it can be an ‘infrequent’ need provided it is ‘real’.

As to Considerations (c), (d) and (e):

34 For the reasons given below, our view is that there is a problem in the way the Tribunal dealt with the next three considerations - (c) (practicality of alternative methods); (d) (risk to personal safety associated with alternative methods); and (e) (animal welfare).

35 While all are clearly relevant, there was no evidence other than Mr Field’s as to this matter. The reasons given by the Tribunal do not adequately explain how it could reject that evidence in the absence of any other. It was not in our view evidence of such weakness that it could have been rejected on that account alone.

36 As to consideration (c), certain alternatives were put to Mr Field in cross-examination. Based on the account given in the Tribunal’s reasons of his replies (we have not reviewed the transcript), they were reasonable – if brief – replies.

37 The Tribunal’s examination of safety issues (see consideration (d)) was not adequate. There was no practical explanation given by the Tribunal for rejecting Mr Field’s submissions relating to the danger to personal safety involved in use of ‘long arms’ in the difficult terrain that he described (cf Finlay at [44-46]).

38 Mr Field’s good character was accepted; nor was there any challenge to his commitment to safe practice and his experience in the use of a range of firearms. Mr Field had substantial experience in the use of weapons in the conditions under which he worked. He gave evidence as to the practicalities of entering thick bush, dense scrub and steep terrain with weapons other than a pistol. His was a lay opinion to which it was appropriate to have regard and accord weight.

39 The special place of evidence of the kind given by Mr Field is reflected in the ordinary rules of evidence. While opinion evidence is not ordinarily admissible to prove the existence of a fact, there are some exceptions two of which concern - lay opinions (Evidence Act 1995, s 78) and opinions based on ‘specialised knowledge’(s 79). The leading case of the use of opinion evidence of this kind is Weal v Bottom (1966) 40 ALJR 436 per Barwick CJ at 438-439. There, a truck driver’s evidence based on actual experience of the behaviour of trucks under certain driving conditions was admitted. For other recent illustrations, see, for example, Voros v Janosne; Estate of Anna Gdyro [2000] NSWSC 1166 per Young J at [48]-[56]; and Andrew William Godfrey (by his tutor Carol Ruth Godfrey) and Carol Ruth Godfrey v New South Wales (No 1) [2003] NSWSC 160 per Shaw J at [23]-[34].

40 Some of the propositions put to Mr Field in cross-examination bordered on the farcical. It is easy to imagine situations where it would be highly dangerous to go only with a knife into thick terrain likely to be inhabited by large feral animals. The proposition that it is sufficient to have a rifle or shotgun stowed at some remote location would, in circumstances easy to envisage, be unsatisfactory.

41 The Tribunal should not have disregarded the replies given by Mr Field on these matters to the extent that it did. In our view, the answers given by Mr Field accord with logic – a protruding rifle butt or long scabbard would be likely to tangle with surrounding vegetation in the kind of terrain being discussed.

As to Consideration (f):

42 Clearly the last factor (f) (balancing the considerations favourable to the applicant against those of public safety and the public interest) is relevant. The difficulty is that if there are errors affecting the examination of the prior considerations then the balancing exercise will not proceed on a sound basis.

43 Mr Sundstrom’s objections are, we consider, sound. The decision should be set aside. There are other problems with the decision, perhaps more significant.

Further Difficulties

44 (a) We also have difficulty with the final sentence of para [26] of the reasons:

‘However neither Sergeant Riley nor Senior Constable Harper expresses a view on alternatives to carrying a pistol, such as carrying a long arm in a scabbard, or going back out to get a long arm on foot when the need arose.’

45 In our view it is not surprising that Sergeant Riley and Senior Constable Harper did not anticipate some of the alternatives raised, especially the more far-fetched ones. They may have been able to respond to these alternatives, had they been notified of the case against the applicant. But the Commissioner did not in the decision under review (the internal review determination) raise such alternatives. Nor did the Commissioner do so in the course of filing submissions in reply before the Tribunal. The failures of the two officer to address such matters should not have received any weight.

46 (b) The Administrative Decisions Tribunal Act 1997 has a number of provisions designed to promote rationality and transparency in administrative decision-making. Here the internal review determination proceeded on a misconception. As a result, the protections that the Act seeks to give to applicants broke down.

47 It is fundamental to the process envisaged by the Act that the administrator’s reasons for decision be clear, and provide the basis for the proceedings before the Tribunal. The administrator is not strictly bound by those reasons, and may introduce, with reasonable notice, new reasons before the Tribunal. (This often happens in Freedom of Information cases.)

48 As a result there was no material before the Tribunal from the Commissioner on the reasonableness or otherwise of various alternatives to carrying a pistol into rugged terrain. It was not until the day of hearing that the Commissioner sought to make a full substantive reply to the applicant’s case. The applicant had put on what material he thought was sufficient going to the question of dangerousness and safe techniques. Not surprisingly his material focused on the reasons why he needed a pistol rather than remote alternatives like scabbards attached to motor bikes and walking out to get a weapon and then walking back in.

49 Had the Commissioner’s delegates responded substantively to the applicant’s case, in particular at the internal review stage, he would have known what case to meet. The first time the Police Commissioner raised these possibilities was in the course of cross-examination. This is not a satisfactory approach to a merits review inquiry. The process is not one of contest between private parties in the manner of a civil claim. It is a public law process where the object is to reach the ‘correct and preferable’ administrative decision. That means that there must be a fair process in which the citizen applicant has some reasonable advance notice of the case to be put.

Form of Order

50 The application for review should be remitted. Over a year has passed during which Mr Field has been without a pistol. There will be a need for him to put on further evidence; and for the Commissioner to make a substantive reply.

51 While ordinarily the order would be to remit the matter to the Tribunal as previously constituted, in this case our view is that it would be preferable to remit the matter to the Tribunal differently constituted.

Order

1. Decision under appeal set aside.

2. Application remitted to the Tribunal differently constituted.