Field v Commissioner of Police, NSW Police

[2004] NSWADT 82

Set aside by Appeal: Set Aside by Appeal on 26/11/2004

CITATION:	Field v Commissioner of Police, New South Wales Police [2004] NSWADT 82
DIVISION:	General Division
PARTIES:	APPLICANT Michael Thomas Field RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	033304
HEARING DATES:	31/03/2004
SUBMISSIONS CLOSED:	03/31/2004
DATE OF DECISION:	04/30/2004
BEFORE:	Rice S - Judicial Member
APPLICATION:	Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Firearms Act 1996
CASES CITED:	Clyne v Commissioner of Police, New South Wales Police [2004] NSWADT 52
REPRESENTATION:	APPLICANT G Sundstrom, barrister RESPONDENT D Paterson, solicitor
ORDERS:	The Commissioner's decision to refuse the issue of a permit is affirmed.

REASONS FOR DECISION

Decision

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

Background

2 Mr Field holds Firearms Licence No 405435926, in categories A, B and C. That licence was most recently re-issued on 20 November 2002, and remains current.

3 Mr Field was the holder of a Primary Production Pistol Permit No 405919613 which was issued on 30 March 1998. On 12 May 2003 he applied for the re-issue of that permit, and on 30 June the Commissioner of Police gave him Notice of Refusal of his application, along with a Statement of Reasons for the refusal. An internal review of this decision resulted in the Commissioner reiterating his earlier decision. Mr Field applied to this Tribunal for review of the internal review decision to refuse to issue the permit.

4 The permit authorised Mr Field to use a category H firearm – a pistol – for primary production purposes. The Commissioner stated in his reasons for refusing the permit that “to issue a firearms permit to you would be contrary to the public interest, in that you have not established that the primary production tasks required to be carried out using the revolver (sic) could not be performed by other means including the use of a lesser category of firearm.”

The relevant law

5 The licensing provisions of the Act make no provision for the issue of a licence for a Category H firearm for the purpose of primary production, hence Mr Field’s reliance on the Commissioner’s discretion to issue a permit, provided for in s28(g) of the Firearms Act 1996 (‘the Act’):

The Commissioner may 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

6 In Clyne v Commissioner of Police, New South Wales Police [2004] NSWADT 52 I discussed what I believe to be the correct approach to making a decision under s28(g), and I rejected a suggestion that the discretion can properly be fettered by a view that the Commissioner has come to generally about the appropriateness of issuing permits for the use of pistols. Rather, the discretion must be exercised, as required by the Act, according to the circumstances.

7 In determining whether the issue of a permit is appropriate in the circumstances, I take account of the Commissioner’s view as to the undesirability of a permit being issued for the possession and use of a category H firearm, and of his reasoning for arriving at that view. At the same time I take account of the circumstances of Mr Field as set out in his statement and his evidence before me.

The Commissioner’s argument

8 The Commissioner does not say that Mr Field is not a fit and proper person to hold a permit, or that he has been convicted of relevant offences or made the subject of relevant orders. The Commissioner however relies on the ‘public safety’ and ‘public interest’ considerations that underpin the legislation and guide its interpretation and application. He argues that those issues outweigh any need Mr Field has arising from his circumstances.

9 I agree with the Commissioner that the licensing regime of the Act creates a very high threshold for the issue of a firearms licence. I agree too that whether and in what circumstances a permit should be issued is informed by an awareness that the Act clearly anticipates the issue of a category H firearm in limited circumstances.

10 The Commissioner says that as a licence for a category H firearm would not be issued for primary production purposes, an application for a permit for the same firearm should be approached with considerable circumspection. I agree.

11 The Commissioner, while acknowledging that there is a discretion to issue a permit for a Category H firearm, relies on the absence of provision for a licence for a category H firearm to say that the Act makes clear that ‘primary production’ is an activity for which a person ought not be able to use for a category H firearm. The approach taken in the Act is not and cannot be determinative as to how the discretion is to be exercised but, as I acknowledge above, it is certainly a relevant consideration in deciding whether it is appropriate in the circumstances to issue a permit.

The applicant’s circumstances

12 Mr Field manages five pastoral stations in southwest NSW. Much of the terrain along the river frontages is heavily wooded. In a letter relied on by Mr Field, Police Sergeant Riley of Hay says that along the rivers the properties are “heavily timbered with a variety of vegetation including fallen tress, lingum bush and low hanging branches”. A letter relied on by Mr Field from Senior Constable Harper of Walcher Road Police is to similar effect.

13 Mr Field’s uncontested evidence is that the total river frontage is some 50 kilometres, and the wooded area at times runs up to 5 kilometres back from the river. It is impossible to get a car through the area because of water and low branches, so when he visits the property every four to six weeks Mr Field does so on a motor bike.

14 Mr Field’s evidence is that he needs a firearm to destroy distressed cattle that he finds when inspecting the property. Mr Field says that the need for destruction of cattle arises three or four times a year on each of three properties he manages with river frontage.

15 It is Mr Field’s evidence, challenged in cross-examination but not by any evidence to the contrary, that there is no way to humanely destroy distressed beef cattle other than by shooting them. He rejected suggestions that he could cut the throat of a trapped and distressed animal of that size, even when they are in a weakened state.

16 As to his need for a pistol rather than a rifle for that purpose, it is Mr Field’s evidence that it is unsafe for him to carry a rifle over his shoulder on a motor bike in such close country as it might catch on low branches and knock him from his bike. Mr Field acknowledges that a scabbard can be mounted on a motor bike to enable him the carry a rifle, but believes from his own observation and discussion with others that this is dangerous.

17 Mr Field acknowledges that he could leave a rifle outside the closely forested river country, in a vehicle for example, and on finding a distressed animal walk out, get a rifle, and return to the animal. This could, however, take a couple of hours, and would require the manager who accompanies him to stay alone with the animal so it could be found again in the difficult terrain. This is not, he says, a practical alternative.

18 Mr Field’s application is supported by a letter from Senior Constable Barnes of Jugiong Police Station. His letter addresses directly the matters for decision here. He says that “[t]he topography of the property is such that a pistol would be considered a more safer option and more easily carried than a long arm. Similarly Sergeant Riley says that “due to the nature of the country it would be a much safer option for a pistol than a long arm weapon”.

Reasoning

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 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.

28 Accordingly I affirm the Commissioner’s decision to refuse the issue of a permit requested by Mr Field.

Order

The Commissioner’s decision to refuse the issue of a permit is affirmed.