Finlay v Commissioner of Police, NSW Police Service
[2004] NSWADT 152
•07/28/2004
CITATION: Finlay v Commissioner of Police, NSW Police Service [2004] NSWADT 152 DIVISION: General Division PARTIES: Applicant
George Finlay
Respondent
Commissioner of Police, NSW Police ServiceFILE NUMBER: 043019 HEARING DATES: 07/04/2004 SUBMISSIONS CLOSED: 04/07/2004 DATE OF DECISION:
07/28/2004BEFORE: Montgomery S - Judicial Member APPLICATION: Firearms licence - issue of licence or permit MATTER FOR DECISION: Principal Matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Firearms (General) Regulation 1997
Firearms Act 1996CASES CITED: Clyne v Commissioner of Police, New South Wales Police [2004] NSWADT 52
Grofam Pty Ltd and Others v. Australia and New Zealand Banking Group Limited and Others (1993) 117 ALR 669
Jamieson v Commissioner of Police, NSW Police [2004] NSWADT 148
Khamis v Commissioner of Police (2001) NSW ADT 21
McIver v New South Wales Police, unreported 2 July 2004
Rana v Human Rights and Equal Opportunity Commission & Nepal Australia Friendship Association [1997] 416 FCA (22 May 1997)
Saiko v Commissioner of Police, NSW Police [2004] NSWADT 99
Ward v Commissioner of Police (2000) NSWADT 28REPRESENTATION: APPLICANT
In Person
RESPONDENT
P. McLaughlin, SolicitorORDERS: 1. The Commissioner’s decision to refuse the issue of a permit is set aside.; 2. I remit the application for reconsideration by the Commissioner.
REASONS FOR DECISION
1 On 21 January 2004 Mr George Finlay lodged an application with the Tribunal for review of a decision made by the Commissioner of Police (“the Commissioner”). That decision was to refuse to issue Mr Finlay with a Commissioner’s Permit for use of a Category H firearm for primary production purposes under the Firearms Act 1996 (“the Act”).
Background2 Mr Finlay is a primary producer with the responsibility of managing and maintaining a rural property near Scone NSW. The property has large areas of inaccessible country where the carrying of longarms is not possible. Mr Finlay asserts that a pistol is required for the destruction of injured, sick and diseased stock, noxious animals and vermin. He also asserts that a pistol is required for the destruction of goats, pigs and other feral animals for the prevention on the damage they cause to the environment and to prevent the spread of harmful and often dangerous diseases they carry and can transmit to humans and domestic stock.
3 Mr Finlay held firearms licences without incident since 1976. He held a Class Two, Shooters licence from 18 July 1992 until 25 January 1999. On 22 January 1999 he was issued with a Category ABC firearms licence that remains in force. He held a personal pistol a Personal Pistol Permit between 4 March 1976 and 3 March 1992 when the licence class was abolished, and again from 19 March 1993 until 12 August 1998. On 27 July 1998 he was issued with a Commissioner’ Permit (Primary Production-Pistol) that expired on 11 November 2003.
4 On 10 September 2003 Mr Finlay lodged an application to be reissued with a Commissioners Permit to authorise the use of a pistol for the genuine reason of ‘primary production’. Mr Finlay was served with a Notice of Refusal of this application on 10 November 2003.
5 On 8 December 2003 Mr Finlay requested an internal review of the decision to refuse his application. The Internal Review was finalised on 15 December 2003. The Commissioner’s delegate who undertook the Internal Review provided written reasons for the decision and Mr Finlay was provided with a copy of those reasons. Those reasons provided, in part:6 The opinion of the Manager, Firearms Registry to which the Commissioner’s delegate referred is contained in a letter dated 16 March 2004. An unsigned copy of that letter put in evidence stated:
“ D. REASONING PROCESS:
The Firearms Act 1996 (‘Act’) sets up a scheme for licensing people to possess and use Firearms. There are several provisions, which allow the Commissioner to refuse to issue a permit. I have formed the view that the legislative provisions listed above are relevant to your particular case. Further, I have noted the abovementioned issues raised by you in support of your application.
After fully and independently considering all relevant matters I make the following fresh determination.
In 1996, the government enacted "tough new gun laws". One of the underlying principles of that law is to improve public safety by imposing strict controls on the possession and use of firearms.
In considering your application I have taken into account these underlying principles and to the provisions of the Act relating to the genuine reasons established as acceptable for being issued with a licence authorising the use of handguns. I have then considered the authority provided for in the Act for the issuing and refusing of Permits.
I have given strong consideration to the reasons you have offered for requiring the use of a handgun to carry out duties as a primary producer. Including that it is not possible for you to carry a long-arm to execute your duties due to the inaccessible country topography at which your property is located. I have also noted your advice that you require the use of a handgun in order to destroy injured, sick and diseased stock, noxious animals and vermin. Further, I have also given substantial weight to the fact that you have been granted the authority of possessing and using a pistol to conduct your primary production activities, for the past 26 years.
However, I am also mindful that you are presently licensed to possess and use Category AB and C firearms for this same purpose and that you have nine (9) firearms of this type at your disposal.
I also concede that you had your property and safekeeping arrangements inspected by Senior Constable Matthews, Moonan Flat Police. In his report of 12 September 2003 Senior Constable Matthews confirms the topography of your property (as being 1200 acres in size that is predominantly covered in scrubby ravines with heavily wooded steep hills) and provides an opinion with respect to the potential unsafe situations regarding carrying and using longarms. It is clear that Senior Constable Matthews supports your application.
However, it is my understanding that there is a greater safety risk associated with carrying and using a pistol to destroy vermin. In arriving at this decision I have noted the opinion of Senior Sergeant Wayne Hoffman, NSW Police, Forensic Ballistics (‘S/Sgt Hoffman’) expert. S/Sgt Hoffman is of the opinion that long-arm firearms (rifles and shotguns) are more suitable and appropriate for use in dealing with wild animals in their natural environment. …
In general S/Sgt Hoffman has advised that in the history of firearm development long-arm Firearms were designed and developed for not only protection but to enable the "hunter gatherer" to hunt and kill animals in the field. Whereas, handguns were designed for carrying on the person for close personal protection.
In addition, I have given substantial weight to the opinion of the Commissioner’s delegate, the Manager, Firearms Registry (‘the Manager’) that he does 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 by reason of carrying out duties as a primary producer.
Section 28(g) of the Act provides that the Commissioner may only issue a permit to authorise the possession and use of firearms in such circumstances, as the Commissioner considers appropriate.
It is my understanding that the Manager finds it compelling that the genuine reason of ‘primary production’ was not included as a genuine reason identified pursuant to Section 16 of the Act, which provides for restrictions on the issue of Category H firearms licences. I have formed the same view.
In addition, I also find it compelling that the Act (Division 3 Permits) and the Regulations’ (Parts 5 and 6) did not identify the genuine reason of ‘primary production’ as a specific reason to issue a Commissioner’s Permit as was done for a number of other reasons including: ‘minors firearms permit’, ‘Firearm Museum Permit’, ‘Permit authorising possession of firearm as heirloom’, ‘Permit for firearms used in film, television or theatrical production’ etc. It can clearly be seen that the function provided by Section 28 of the Act did not intend to include the genuine reason of ‘primary production’.
Moreover, it is clear that the intent of the legislation is that a permit be issued in such cases where the granting of a licence is not appropriate or possible, or where other or special circumstances exist outside the ‘licensing’ provisions and restriction’ and not as a means of circumventing the restrictions that would apply to the granting of a licence for the same purpose. Therefore, it is not acceptable to grant your application just on the basis that it has been issued in the past or because you believe that a pistol is the safest method for you to control vermin. These factors are not relevant overall. The need for applicants to establish a ‘genuine reason’ in support of their application is a key feature of the legislative scheme. The Second Reading Speech made by the Hon J W Shaw, Attorney General and Minister for Industrial Relations, on 25 June 1996, makes it clear that the Act implements the Resolutions of the Australasian Police Ministers’ Council in Canberra on 10 May 1996 (Hansard, Legislative Council, 25 June 1996 at 3560). One of those resolutions, Resolution 3(b) was "that classifications be used to define the "genuine reason" an applicant must show for owning, possessing or using a firearm".
It is also important to note a recent agreement that occurred at the Council of Australian Governments on 2 December 2002 with respect to tightening handgun possession within Australia. As a result of this agreement, the Firearms Amendment (Prohibited Pistols) Bill 2003 fully implements a National Agreement, which places a range of restrictions on handgun target shooters. This Bill will amend the Firearms Act 1996, the Firearms (General) Regulation 1997, and the prohibited weapons legislation to implement the Prime Minister’s Handgun Controls. More importantly, the object of this Bill is to reduce the number of pistols in the community and to strengthen controls over access to pistols.
I am therefore mindful of these recent legislative changes, the relevance of same is that they have obviously been brought into existence through the desires of the wider community who seek to improve public safety through tighter handgun control.
The Deputy President in Ward v Commissioner of Police (2000) NSWADT 28 stated:
It is also accepted that when referring to the issue of ‘public interest’ it includes the safety of the individual seeking to be issued with a licence/permit. In this regard, I have relied on the opinion of S/Sgt Hoffman regarding the safety risks associated with using a handgun to destroy large wild animals in their natural environment and find that you may place yourself at risk to do so.
"The ‘public interest’ in relation to the holding of a firearms licence relates to the objects and principles set out in s.3 of the Firearms Act. "
Therefore, in summary, for the reasons above combined with the fact that you have Category AB and C firearms at your disposal to control vermin on your property, I find that not only is it not in the interest of the public (including your own) to grant your application but that it would be inappropriate to issue you with a Commissioner’s permit ‘outside the licensing provisions and restrictions’ of the Act.
E. DECISION:
The Commissioner’s decision to refuse your application for a Commissioner’s Permit is to stand.”
7 The reference to the opinion of Senior Sergeant Hoffman is a reference to a report provided by Senior Sergeant Hoffman to Mr Garry Richmond of the Firearms Registry. That report is dated 15 October 2003 and states:
“COMMISSIONERS PERMITS
Pursuant to Section 81 (1) of the Firearms Act 1996 1 have been delegated by the Commissioner of Police to carry out all of the functions of the Commissioner under the Act and the Firearms (General) Regulation 1997. (With the exception of the Commissioner’s functions under Sections 11(5A) and 29 (3A) of the Act.)
Section 28 (g) of the Act provides that the Commissioner may issue a permit to authorise the possession and use of firearms in such circumstances, as the Commissioner considers appropriate,
Section 16 of the Act places restrictions on the issue of Category H firearms licences and the Commissioner must not issue a Category H firearms licence to a person unless the genuine reason is (1) sport/target shooting, (2) business or employment, (3) firearms collection, and in addition to establishing any such genuine reason a person is required to produce evidence to the Commissioner’s satisfaction that there is a special need for the person to possess and use a pistol. 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.
I advise that unless exceptional circumstances exist, 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.”
Applicable legislation
“Here is my opinion in relation to your request by e-mail dated 16/09/03 on the subject, "Ballistics advice re pistols used by farmers for shooting wild boars and fishermen for shooting sharks." It is noted that no hard copy report will be submitted by the Firearms Registry to Ballistics and advice by way of this e-mail to yourself is all that is required at this stage.
I am of the opinion that Longer Firearms (Rifles and Shotguns) are more suitable and appropriate for use in dealing with these type of wild animals in their natural environment due to the following:
CALIBRE CONSIDERATIONS:
New handgun laws limit the possession and use of handguns over .38/9mm in calibre except for certain target sports such as metallic silhouette, etc. Thus the use of medium calibre projectiles (handgun ammunition) is not as effective and efficient in the humane destruction of these types of wild animals described. Larger calibre centre fire ammunition discharged from an appropriate long-arm is definitely more suitable. This is because large calibre ammunition with larger sectional density projectiles discharged and propelled by larger capacity propellant powders have the demonstrated performance required to both-knock down’ and destroy such large predator animals quickly and humanely.
VARIABLE RANGE CONSIDERATIONS:
Handguns are limited in their accuracy and performance over longer distances. Destroying large predator animals in their natural Environment may require discharging a firearm from point blank range out to a considerable distance with an animal which is a moving target. Thus longarm firearms are again more effective and efficient in their performance as described above, from point blank (contact) range to long-range distance shots.
FIREARM HANDLING AND ACCURACY:
The destruction of wild animals in their natural environment is definitely more suitable with a longarm firearm due to the greater firearm control and accuracy achieved with a longarm. This is due to the long barrels fitted to rifles and shotguns which were designed for accuracy- Longarms are also fitted with butt stocks and forearm stocks making them a shoulder held weapon allowing more support and control of the firearm ensuring safety and greater accuracy.
NOTE:
In the history of firearm development LONGARM Firearms were designed and developed for not only protection but to enable the "hunter gatherer" to hunt and kill animals in the field. HANDGUNS were designed for carrying on the person for close personal protection. Any serious hunter in the field would -only use a longarm firearm and would not entertain a small barrelled handgun controlled by way of a handgrip only. This same ‘serious and concerned’ hunter would also be very aware of the limitations of handguns to longarms as described in this email. If these firearm users are unaware of the limitations and differences as outlined then their possession and use of firearms in general should be examined.”
8 The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as either to confirm the original decision, vary it, or set it aside and substitute another. “The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made” (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77).
9 These are not adversarial proceedings in which Mr. Finlay carries an onus of proof. Mr. Finlay, by making the application, triggers a process of merits review by the Tribunal. Mr. Finlay does not take on the responsibility of having to prove a case, nor does he cause the Commissioner to have to prove a case. Mr. Finlay and the Commissioner are before the Tribunal as parties by virtue of section 67(2) of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”).
10 Section 63 of the ADT Act sets out the approach to be taken by the Tribunal in relation to an application for a review of a reviewable decision. Section 63 states:11 The principles and objects of the Act are set out in section 3 in the following terms:
“63 Determination of review by Tribunal
(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.
(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.”
“3 Principles and objects of Act
(1) The underlying principles of this Act are:
(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and
(b) to improve public safety:
(i) by imposing strict controls on the possession and use of firearms, and
(ii) by promoting the safe and responsible storage and use of firearms, and
(c) to facilitate a national approach to the control of firearms.
(2) The objects of this Act are as follows:
(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,
(b) to establish an integrated licensing and registration scheme for all firearms,
(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,
(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,
(e) to ensure that firearms are stored and conveyed in a safe and secure manner,
(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.”
12 Section 8 of the Act deals with the different categories of licences, the firearms to which they apply, and the authority they confer. Pursuant to that section a licensee may be authorised to possess or use a registered pistol for a genuine reason. In so far as is relevant section 8 provides:
13 Section 12 of the Act provides:
“Category H licence (pistols)
Firearms to which the licence applies:
pistols (including blank fire pistols and air pistols).
Prohibited firearms are excluded from this licence category.
Authority conferred by the licence:
The licensee is authorised to possess or use a registered pistol, but only for the purpose established by the licensee as being the genuine reason for having the licence. In the case of a category H (sport/target shooting) licence, the licensee is authorised to possess or use a registered pistol only for the purposes of participating in competitive shooting activities that are approved by the Commissioner. A category H (sport/target shooting) licence does not authorise the possession or use of a prohibited pistol.”
14 Section 16 of the Act provides:
“12 Genuine reasons for having a licence
(1) The Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm.
(2) An applicant does not have a genuine reason for possessing or using a firearm if the applicant intends to possess or use the firearm for any of the following reasons:
(a) personal protection or the protection of any other person,
(b) the protection of property (other than in circumstances constituting a genuine reason as set out in the Table to this section).
(3) Subsection (2) does not limit the reasons which the Commissioner may be satisfied are not genuine reasons for the purposes of justifying the possession or use of a firearm.
(4) Subject to this Act, an applicant for a licence has a genuine reason for possessing or using a firearm if the applicant:
(a) states that he or she intends to possess or use the firearm for any one or more of the reasons set out in the Table to this section, and
(b) is able to produce evidence to the Commissioner that he or she satisfies the requirements specified in respect of any such reason.
Table
Reason: primary production
The applicant must:
(a) be a person whose occupation is the business of a primary producer, or who is the owner, lessee or manager of land used for primary production, and
(b) state that he or she intends to use the firearm solely in connection with farming or grazing activities (including the suppression of vertebrate pest animals on the land concerned).”
15 Section 28 of the Act provides the Commissioner of Police with a general power in respect of issuing permits. It provides as follows:
“16 Category H licences - restrictions on issue
The Commissioner must not issue a category H licence to any person unless:
(a) the genuine reason established by the person for being issued with the licence is any one or more of the following:
(i) sport/target shooting,
(ii) business or employment,
(iii) firearms collection, and
(b) in addition to establishing any such genuine reason, the person produces evidence to the Commissioner’s satisfaction that there is a special need for the person to possess or use a pistol.”
16 Sections 29 and 30 of the Act provide for general restrictions and provisions on the issuing permits as follows:
“28 General power to issue permits
The Commissioner may issue permits for any one or more of the following purposes:
(a) to authorise a person to acquire a firearm,
(b) to authorise the possession or use of firearms by minors in accordance with section 32,
(c) to authorise the possession or use of firearms in such circumstances as may be prescribed by the regulations (including film or theatrical productions or other artistic purposes),
(d) to authorise the acquisition, selling or transfer of firearms in such circumstances as may be prescribed by the regulations,
(e) to authorise the shortening or conversion of firearms,
(f) to authorise the use of a firearm (being a firearm to which a category A, category B or category H licence applies) that is part of a licensed firearms collection in order to test it, or on a special occasion as specified in the permit,
(g) to authorise the possession or use of firearms in such circumstances as the Commissioner considers appropriate,
(h) to authorise anything else that is required by this Act or the regulations to be authorised by a permit.”
17 The Firearms (General) Regulation 1997 (“the Regulations”) set out some specific types of permits which may be issued. Part 5 of the Regulations provides for Minor’s Firearms Permits. Part 6 of the Regulations provides for additional types of permits as follows:
“29 General restrictions on issuing permits
(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.
(2) Without limiting the generality of subsection (1), a permit must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of:
(a) the applicant’s way of living or domestic circumstances, or
(b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or
(c) the applicant’s intemperate habits or being of unsound mind.
(3) Subject to this Division, a permit must not be issued to a person who:
(a) is under the age of 18, or
(b) has, within the period of 10 years before the application for the permit was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or
(c) is subject to an apprehended violence order or who has at any time within 10 years before the application for the permit was made been subject to such an order (other than an order which has been revoked), or
(d) is subject to a good behaviour bond, whether entered into in New South Wales or elsewhere, or
(e) is subject to a firearms prohibition order.
(3A) A permit must not be issued to a person if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that:
(a) the person is a risk to public safety, and
(b) the issuing of the permit would be contrary to the public interest.
(3B) The Commissioner is not, under this or any other Act or law, required to give reasons for not issuing a permit on the grounds referred to in subsection (3A).
(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.
(5) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a permit.
30 General provisions relating to permits
(1) An application for a permit must be made in the prescribed manner and be accompanied by the prescribed fee.
(2) A permit is to be in a form approved by the Commissioner and contain such detail as may be prescribed by the regulations.
(3) The regulations may prescribe or provide for the Commissioner to impose or determine:
(a) conditions to which a permit is to be subject, and
(b) the period for which a permit is to be in force.
(4) A permit may be suspended or revoked by the Commissioner:
(a) for any reason for which a licence may be suspended or revoked under this Act, or
(b) for such other reasons as may be prescribed by the regulations.
(5) The suspension or revocation of a permit takes effect when notice is served on the holder of the permit.
(6) If a permit is surrendered or revoked, the person to whom it was issued must immediately surrender to a police officer:
(a) any firearm in respect of which the permit has been issued, and
(b) the permit.
Maximum penalty (subsection (6)): 50 penalty units or imprisonment for 2 years, or both.”
(7) A police officer is authorised to seize any firearm in respect of which a permit has been issued if the permit is suspended or revoked.”
Mr. Finlay’s case
Clause 43 - Permit to purchase non-prohibited firearm on leaving Australia;
Clause 44 - Permit authorising possession of firearm as heirloom;
Clause 45 - Firearms museum permit;
Clause 46 - Permit for firearms used in film, television or theatrical production;
Clause 47 - Theatrical armourer’s permit;
Clause 48 - International (temporary) visitors permits - competitions;
Clause 48A - International visitors - exemption for those holding international (temporary) visitors permits issued interstate;
Clause 49 - Permit for tranquilliser firearms;
Clause 50 - Permit to conduct paint-ball games;
Clause 51 - Permit authorising possession of paint-ball guns;
Clause 52 - Permit to operate safari tours involving firearms;
Clause 53 - Permit authorising overseas persons to participate in organised safari tours or other hunting activities;
Clause 54 - Permit for non-prohibited firearms used in historical re-enactments;
Clause 54A - Permit for certain cannon;
Clause 55 - Permit for powerheads;
Clause 56 - Permit for starting pistols;
Clause 57 - Arms fair permit;
Clause 58 - RSL club display permit; and
Clause 59 - Ammunition collection permit.
18 Mr Finlay appeared and gave evidence in support of his application. He was also subjected to cross-examination. His case is essentially that he is a primary producer managing a rural property that has large areas of inaccessible country where the carrying of longarms is either not possible, dangerous or inadequate. His evidence is that about 30 percent of the country on his property is rough terrain, steep and heavily timbered. He accesses the property on horseback and on foot. He has found it convenient to use a pistol rather than a longarm, but he also believes that it is necessary. Mr Finlay said that he requires a pistol for the destruction of injured sick and diseased stock, as well as for the destruction of feral animals and vermin.
19 Mr Finlay says that he has extensive experience with firearms going back to pre-1953. His safety record is excellent and all storage requirements have been met. He submits that as he has satisfied all the criteria for issue of the permit, the status quo should be maintained and the permit reissued.
20 Mr Finlay’s application was supported by the local police. A report by Senior Constable Matthews is in evidence. That report states:21 Mr Finlay concedes that he has used a longarm in inaccessible country on other properties but it had been under extreme difficulty. On his own property he has only use a long arm in open country. If he had to use a firearm to put down stock in the inaccessible parts of his own property, he would scramble in on foot. He said that while travelling on horseback he prefers not to carry a longarm in a scabbard for safety reasons. He also stated that he does not use shoulder straps on his longarms for safety reasons. He said that if he carries the rifle, it is easier to get rid of it if he gets caught in brush. He also said that the rifles he uses are not designed for use with a scabbard. Mr Finlay said that if he carries a pistol he carries it in a holster. He said that it would be unlikely that the pistol would come out of the holster if he got caught on a branch.
“Application for Commissioner's Permit by Mr George Donald Kirkman Finley permit no. 406925679.
On Thursday 11 September, 2003 I inspected the property "Rivendell" Woolooma in relation to an application for renewal Commissioners Permit no. 406925679. The property covering some 1200 acres is predominantly covered in scrubby ravines with heavily wooded steep hills proving inaccessible to transport other than horseback and motor cycle.
Many predatory animals such as wild boar, wild dog, fox and cat frequent the area preying on livestock and proving a menace to both humans and domestic pets. The need for constant culling of these animals in the terrain makes the use of a longarm both dangerous and inadequate.
Along with the culling of feral animals the need for the humane destruction of domestic stock in the same environment only allows the use of a short arm again for safety and convenience.
I have inspected the storage facilities in which the firearm is to be kept and find them well above what is required under the Act. The approved pistol safe is bolted inside another extremely large and heavy metal safe which fits at least a Level 2 requirement. The safe is then secured inside a metal shipping container to complete the security features.
Mr Finlay has beer the holder of a Commissioners permit for some years along with being a responsible firearms license holder and with no adverse licensing or criminal history on record. Local Police have no objections to the issue of a permit to allow Mr Finlay to keep and use the firearm.”
22 He conceded that a long arm is more accurate than a pistol and the pistol is not accurate over any distance. However, he said that when he needs to use a pistol to shoot an animal, he is always in close proximity to the animal. Mr Finlay also conceded that where it is possible to use of longarm it is preferable to do so. However, he asserted that in some terrain is simply not practicable to use a longarm or it is dangerous to do so.
23 In response to Mr McLaughlin’s suggestion that there are other means at his disposal to deal with noxious animals, Mr Finlay asserted that those methods are not effective. He said that traps are seldom used and he does not like to use poisons. He said that the effect is horrible and the bait is often left for other animals.
24 Mr Finlay said that it is hard to quantify the amount of use he would have for a pistol in any one year. He said that in the past six months he had not used a pistol at all but in most years he would need it three or four times.
25 Mr Finlay seeks the issue of a permit so that he will be able to deal with the livestock and feral animals when the need arises in the future.
The Commissioner’s case
26 Mr McLaughlin appeared on behalf of the Commissioner and provided submissions in support of the Commissioner’s case. He relies on those submissions and also repeats the arguments set out in the reasons for internal review.
27 Mr McLaughlin submitted that it would be contrary to the spirit of the legislation to issue a permit authorising the possession and use of a Category H firearm for the purposes of primary production. It is clear from section 16 of the Act that there are restrictions on the use of Category H firearms. It is necessary to look at each category of firearm and its intended use to gain an insight into what the legislation intended in respect of the type of firearm. Section 16 of the Act places restrictions on genuine reasons for which a person can obtain a licence for a Category H firearm. The legislation would allow Mr Finlay, as a primary producer, to obtain a licence for Category A, B and C firearm but he cannot obtain a licence for a category H firearm for the genuine reason of primary production.
28 Mr McLaughlin submitted that the legislative scheme "covered the field" in regards to genuine reasons. The legislation intended that primary production not be a genuine reason for issuing a Category H licence. To allow a person to obtain a permit authorising the use of a category H firearm would be inconsistent with the intention of the Act.
29 There is no express guidance by the Act or the Regulations as to how the discretion in 28(g) should be exercised. However the underlying principles and aims of the Act are that the possession and use of a firearm is a privilege not a right, and is conditional on the overriding need to ensure public safety. There is no indication that permits could or should be used to provide applicants with a way of obtaining possession and use of a firearm for a purpose, which the licensing provisions clearly did not allow.
30 Mr McLaughlin argued that Parliament intended for the permits to be issued in circumstances that were not dealt with in the legislation. He asserted that the expressio unius est exclusio alterius" rule has application in the present circumstances. He referred to views expressed by O'Loughlin J in the Federal Court matter of Rana v Human Rights and Equal Opportunity Commission & Nepal Australia Friendship Association [1997] 416 FCA (22 May 1997) as guidance in the application of this principle:31 He argues that there are both specific and general provisions in the Act that address the matter. The power under section 28(g) is a general power whereas sections 12 and 16 are comprehensive and exhaustively cover the whole area. Where there are both special and general enactment's, the special power is operative to give effect to the intention of Parliament. He relies on the statement by Northrop, Ryan and Beazley JJ in the Full Court of the Federal Court matter of Grofam Pty Ltd and Others v. Australia and New Zealand Banking Group Limited and Others (1993) 117 ALR 669:
“The "expressio unius est exclusio alterius" rule - an express reference to one matter indicates that other matters are to be excluded - is a rule that is to be applied "with caution and only in appropriate cases" : Rylands Brothers (Aust) Ltd v Morgan (1927) 27 SR (NSW) 161 at 168-169 per Long Innes J. In Houssein v Under Secretary, Department of Industrial Relations and Technology and Industrial Commission of NSW (1982) 38 ALR 577 at 581, the High Court said that the "maxim must always be applied with care, for it is not of universal application and applies only when the intention it expresses is discoverable upon the face of the instrument ..." (see also Pearce and Geddes; Statutory Interpretation in Australia 3rd ed par 4.22).”
“12. In Leon Fink Holdings Pty. Limited v. Australian Film Commission (1979) 141 CLR 672 Mason J, in dealing with the operation of general and special powers stated at 678:
This principle is, however, a principle of statutory construction which must at all times be applied so as to give effect to the intention of the legislature. In Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-Stock Corporation and Ors (1980) 29 ALR 333, Deane J said at p 347:
"It is accepted that when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power. In Anthony Hordern and Sons Ltd. v. Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at p 7 Gavan Duffy CJ and Dixon J said: "... When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power".
"As a matter of general construction, where there is repugnancy between the general provision of a statute and provisions dealing with a particular subject matter, the latter must prevail and, to the extent of any such repugnancy, the general provisions will be inapplicable to the subject matter of the special provisions." The rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be taken to be operative ..." (per Romilly MR: Pretty v. Solly (1859) 26 Beav 606 at 610). Repugnancy can be present in cases where there is no direct contradiction between the relevant legislative provisions. It is present where it appears, as a matter of construction, that special provisions were intended exhaustively to govern their particular subject matter and where general provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter. A more fundamental example of such repugnancy is where the particular provisions prescribe or encourage conduct which the general provisions would render prima facie, though not irremediably, unlawful or where the particular provisions assume to be lawful conduct which the general provisions would render prima facie unlawful. I have already indicated my view that the latter, more fundamental, example of repugnancy is present in the instant matter. I consider that the former example of repugnancy is likewise present".
32 Mr McLaughlin submits that in the context of the legislation there is a clear inference that this category of permit is excluded.
33 Mr McLaughlin further submits that if the issue of a permit were available, an applicant would need to demonstrate a special need in addition to the genuine reason. He said that there is evidence of Mr Finlay's practices and the number of alternatives that are available to meet his needs eg a long arm firearm is capable of use in his inaccessible areas. Mr Finlay does not like using a scabbard but it is open to use. Mr Finlay has numerous modern rifles available for his use. He would be able to remove the scopes from those firearms and could obtain or make a scabbard for them. Mr Finlay could also use baits and traps and he could obtain assistance from the Rural Lands Protection Board or from others who go pig hunting.
34 Mr McLaughlin also referred to views expressed by the Tribunal’s Deputy President in the matter of Ward where s he stated:35 He argued that it would be contrary to the intention of the Act to allow Mr Finlay to obtain a permit authorising the possession and use of a Category H firearm for the purposes of primary production when the licensing requirements would not allow this. Further, it does not promote the objects and principles of the Act. Mr McLaughlin also submits that the issue of a permit in these circumstances would be contrary to the public interest. Accordingly, he submits that the Commissioner made the correct and preferable decision is refusing to issue the permit and accordingly the decision should be affirmed.
“27 One of the objects of the Act, as set out in s 3, is “to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety.” In determining whether Mr Ward is a fit and proper person to hold a licence consideration must be given to the circumstances surrounding his conviction for assault. The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.
28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.”
Findings
36 In this application, I have considered all of the evidence and the oral argument presented before the Tribunal. In particular I have had regard to the following issues:
a) That Mr Finlay is of good character.
b) That Mr Finlay holds a Category ABC firearms licence for the genuine reason of primary production activities on his property.;
c) That Mr Finlay held a Pistol Permit for approximately 26 years without incident;
d) That Mr Finlay’s application for a Commissioners Permit has been supported by local police;
e) That it is the opinion of Senior Sergeant Hoffman that long-arm Firearms are more suitable and appropriate than handguns in the destruction of wild animals in their natural environment;
f) That section 28(g) of the Act provides that the Commissioner may issue a permit to authorise the possession and use of firearms in such circumstances as the Commissioner considers appropriate;
g) That the Commissioner does 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 by reason of carrying out duties as a primary producer;
h) That it is Mr Finlay’s view that the carrying of a long-arm in conducting his duties as a primary producer is not practicable because of the inaccessible topography of his property.
37 I previously considered many of the issues raised in this matter in my reasons for decision in Saiko v Commissioner of Police, NSW Police [2004] NSWADT 99. In that matter I adopted the views of Judicial Member Rice in Clyne v Commissioner of Police, New South Wales Police [2004] NSWADT 52 where he 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, Rice JM considered that the discretion must be exercised according to the particular circumstances of the case.
38 In Saiko I also expressed the view that it is nevertheless appropriate that any exercise of discretion accord with the principles and objects of the Act and that this will only be achieved if there is a genuine reason and a special need for the possession and use of a category H pistol. In doing so I also adopted the views expressed by Lees JM in Khamis v Commissioner of Police (2001) NSW ADT 21 where she stated, at paragraph 61, that "it is reasonable to imply that the intent of the legislation was not to provide permit applicants with a means of circumventing the restrictions that apply to the granting of a licence".
39 Since my decision in Saiko there have been other decision relating to similar issues. Most recently in Jamieson v Commissioner of Police, NSW Police [2004] NSWADT 148 Higgins JM considered the various Tribunal decisions that have considered these matters and concluded:40 I agree with those findings. I also agree with and adopt the views expressed by Rice JM in McIver v New South Wales Police , unreported 2 July 2004, another matter decided since my decision in Saiko . In McIver the Judicial Member stated:
“44 Accordingly, I agree with the Commissioner that there is considerable difficulty with a general grant of a permit for primary producer reasons etc under this paragraph. However, it does not prevent the Commissioner granting a permit to possess a category H permit to a primary producer where, having regard to the principles and objectives of the Act, the circumstances of a particular primary producer make it appropriate for such a permit to be issued.
45 While it is not necessary to determine whether primary production is excluded from s. 16 of the Act I wish to make the following comments, particularly in light of what was stated in Clyne at [27]. I agree with the Commissioner’s construction of s.16(1)(a) in that this section makes no provision for the issue of a category H licence where the genuine reason for seeking the licence is primary production. However, this does not mean that a primary producer who is able to satisfy the ‘business’ requirement of s.16(1)(a)(ii) of the Act is excluded. While a narrow test is to be applied to the phrase ‘business’ in s.16(1)(a)(ii) of the Act, the fact that a Category C licence may be obtained on the basis of establishing a genuine reason of primary production, does not mean that a primary production business is excluded from s.16: see Snape v Commissioner of Police, NSW Police [2004] NSWADTAP 15; Osborne v Commissioner of Police, NSW Police [2000] NSWADTAP 10; Phillips v Commissioner of Police, NSW Police [2004] NSWADT 101. If the Commissioner’s construction was correct then primary production would not be a genuine reason for obtaining a category A or B licence.
46 Accordingly, I find in respect of the first preliminary issue that paragraph 28(g) of the Act gives the Commissioner power to issue a permit for a Category H firearm in circumstances where the applicant is a primary producer. As mentioned above that power is discretionary and how that discretion is to be exercised is dealt with in issue two.
47 There is one additional matter that I wish to mention, which relates to the Commissioner’s contention that a permit should not be issued where a licence could be issued. For the reasons I have stated above, I agree with the Commissioner’s contention in this regard, in that it would be inappropriate to issue a permit in circumstances where a licence could have been issued.”
41 I remain of the view that I expressed in Saiko , and with which Higgins JM agreed in Jamieson , that any exercise of discretion must accord with the principals and objects of the Act and that this will only be achieved if there is a genuine reason and a special need for the possession and use of a Category H pistol.
“As this Tribunal has said previously, the Commissioner’s discretion is properly informed by the fact that the circumstances for enabling the possession and use of a category H firearm are very limited. But the very existence of a permit regime, alongside a licensing regime, allows for the possibility of there being exceptional circumstances that warrant a person’s possession and use of a category H firearm other than as allowed by the licensing regime. …
Whether the circumstances are sufficiently exceptional to warrant permitting the possession and use of a category H firearm when a licence would not ordinarily be available, is, as this Tribunal has said before, informed by the principles and objects of the Act and the paramount consideration of ensuring public safety.”
42 For the purposes of this matter I am satisfied that as a primary producer Mr Finlay has established a genuine reason for the possession and use of a firearm. Mr Finlay must also show that the use of a pistol rather than a long-arm is necessary, rather than merely desirable or convenient. There must be a special need for the possession and use of a pistol. That need must be real and not hypothetical based on an assumed future event.
43 In my view, Mr Finlay’s need for a pistol is infrequent but real. He proposes to use a pistol for the humane destruction of distressed animals and for the destruction of feral animals in circumstances where the use of a long arm is not only impracticable but is also potentially dangerous. It is my view that Mr Finlay’s use of a pistol is a necessity, not a mere convenience.
44 On the evidence before me I am not satisfied that the alternative methods available to him would for be effective for the purpose. Traps and baits are of limited effect and there would be little benefit from seeking from pig hunters, as they would face the same obstacles that Mr Finlay faces. Similarly I am not satisfied that assistance from the Rural Lands Protection Board would resolve the issue.
45 Nevertheless, Mr Finlay’s need must be weighed against the paramount considerations of public safety and the public interest. I am satisfied on his evidence that Mr Finlay’s use of a category H firearm in the circumstances he describes poses little or no risk to public safety. Further, I am satisfied that were he to continue to use a category H firearm as he has done in the past, there is little or no risk to public safety. In contrast, I would be concerned for his own safety if he were to use a longarm in those circumstances.
46 I note that the circumstances in McIver were in many ways comparable to those in this matter. The Judicial member remitted the matter for consideration of appropriate conditions for the use of the permit. He stated:47 I agree with that approach. Mr Finlay also has a limited need for a category H firearm and the permit should be granted for that limited use.
“Because of the limited basis on which Mr McIver’s need for a category H firearm arises, it might be appropriate to impose conditions on the permit. I understand the Commissioner’s concern that such conditions are difficult to enforce. They are, however, a clear indication to a permit-holder of the extent to which possession and use of a category H firearm is a privilege, and of the serious obligations they have to use a category H firearm with care and in very defined circumstances.
48 Accordingly, I set aside the Commissioner’s decision to refuse the application for a permit, and I remit the application for consideration by the Commissioner in accordance with these directions:
a) the Commissioner is to give effect to my view that it is appropriate that Mr Finlay be issued with a permit under section 28(g) of the Act; and
b) in consultation with Mr Finlay the Commissioner is to consider the appropriateness of imposing a condition on the permit that limits Mr Finlay’s use of a category H firearm to those situations where he has need to destroy of distressed or feral animals where the use of a longarm is not practicable because of the inaccessible topography.Order
1. The Commissioner’s decision to refuse the issue of a permit is set aside.
2. I remit the application for reconsideration by the Commissioner.
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