Jamieson v Commissioner of Police, NSW Police

[2004] NSWADT 148

CITATION:	Jamieson v Commissioner of Police, NSW Police [2004] NSWADT 148
DIVISION:	General Division
PARTIES:	APPLICANT Graham Jamieson RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	033351
HEARING DATES:	12/02/2004
SUBMISSIONS CLOSED:	03/01/2004
DATE OF DECISION:	07/23/2004
BEFORE:	Higgins S - Judicial Member
APPLICATION:	Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:	Christianos v Commissioner of Police [1999] NSWADT 66 Khamis v Commissioner of Police [2001] NSWADT 21 Clyne v The Commissioner of Police, NSW Police [2004] NSWADT 52; Field v Commissioner of Police, NSW Police [2004] NSWADT 82 (currently subject to appeal); Saiko v Commissioner of Police, NSW Police [2004] NSWADT 99 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
REPRESENTATION:	APPLICANT In person RESPONDENT M Buchanan, solicitor
ORDERS:	1. The preliminary questions are determined as follows:; a) on a proper construction of paragraph 28(g) of the Act the Commissioner is given power to grant a permit in circumstances where a licence could not be issued;; b) the Commissioner’s guideline as set out in the letter dated 27 August 2003 of Garry Richmond, Manager Firearms Registry, is of no effect as it is a fetter on the Commissioner’s discretion under paragraph 28(g) of the Act.; 2. The matter to be re-listed for further directions by Registry on a date that is suitable to both parties.

1 This is an application by Graham Jamieson (“Mr Jamieson”) seeking review of a decision of a delegate of the Commissioner of Police (“the Commissioner”) to refuse his application for a permit to possess and use a semi-automatic pistol. The Commissioner had refused his application for a permit on the following basis:

a) Mr Jamieson was the holder of a category AB firearms licence;

b) it was not in the interest of the public (including his own interest) to grant his application, and

c) it would be inappropriate for the Commissioner to issue a permit to possess and use a pistol in circumstances that were outside the licensing provisions and restrictions of the Firearms Act, 1996.

2 Mr Jamieson is the owner of land in Young, in the State of New South Wales. Mr Jamieson has a long history of being licensed to possess and use firearms, including pistols. Prior to the Firearms Act, 1996 coming into force, he had been the holder of a pistol licence or permit for 20 years – i.e. from 8 November 1977 until 26 August 1998.

3 In June 1998, at the time his then existing firearms permits were due to expire, Mr Jamieson applied to the Firearms Registry for new licences under the provisions of the Firearms Act 1996 so that he could continue to possess and use his firearms. Initially he applied for three categories of licence; a Category AB, a Category G and a Category H licence. It would appear that he also applied for a Primary Production Pistol Permit at this time.

4 As a result of his applications, on 1 October 1998, Mr Jamieson was issued a permit, which was described as a “Primary Production Pistol Permit”. That permit was granted for a period of 5 years. On 19 November 1998, Mr Jamieson was also issued with a Category AB licence.

5 In the latter part of 2003, Mr Jamieson made an application to renew his pistol permit (12 September 2003) and his Category AB licence (3 November 2003). The Category AB licence was subsequently renewed for a further 5 year period.

6 In making his application for a renewal of his pistol permit, Mr Jamieson, completed the Commissioner’s proforma application for a permit form. On that form, under the heading “This application relates to”, Mr Jamieson wrote “Primary Producer Pistol”. Mr Jamieson also supported his application with a report from the local police sergeant who stated the following:

“ Background:

Police report required regarding renewal of permit.

Comment:

I have inspected the property owned by the Applicant in which it is proposed to use the pistol when required. The terrain and vegetation on the property to which this application relates is extremely rough and dense. Its nature is such as to have the potential for unsafe situations to arise when the Applicant moves about this property should he carry a rifle or similar long barrel firearm.

Recommendation:

It is believed that a pistol is suitable under the circumstances and sufficient reasons exist for the issue of a permit”.

7 It would appear that the Commissioner determined to refuse Mr Jamieson’s application for a permit on 9 October 2003, but did not forward the requisite notice to Mr Jamieson until 6 November 2003. In the notice of refusal the Commissioner stated the following:

The legislative intent is clear by the failure of the legislature to include primary production as a genuine reason for holding a Category H firearms licence. Accordingly, your application for a permit has been reviewed and it is considered contrary to the public interest for you to hold a Commissioners Permit for a Category H (a pistol) firearm for primary production.

If you feel you have genuine reason for holding a Category H pistol licence, you are invited to apply for such a licence. Such application will be considered on its merits upon receipt.

8 In his statement of reasons, the Commissioner stated the following:

“Section 16 of the Firearms Act 1996 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 sport/target shooting, business or employment or firearms collection. 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.

Therefore I do not find it appropriate to issue a Commissioner’s permit for the purpose of possessing and using a Category H firearm by reason of carrying out duties as a primary produce as this is not a legitimate reason as anticipated by the legislation.

Further, I consider that based on public policy grounds, it is contrary to the public interest to issue a Commissioner’s permit for the purpose of possessing and using a Category H firearm for the reason of carrying out duties as a primary producer”.

9 On 11 November 2003, Mr Jamieson requested an internal review. In his internal review he stated that:

“Due to the rough and scrubby nature of this particular property it is much safer to carry a pistol whilst accessing the area on motorbike, rather than to carry a long arm.

As you are already aware, public safety has always been a concern when issuing pistol permits.

Young Local Court issued the original permit 23 years ago and when the legislation changed in 1993 I was required to present my case to the Court and the permit was renewed. I believe that during that time it was never suggested that my holding permit was not in the public interest, on the contrary I would suggest as one gets older the more conscious you become of public safety and your own.

….

I believe that I have genuine reasons for holding a category H pistol licence. I now await your response”.

10 On 24 November 2003, another delegate of the Commissioner finalised the internal review and confirmed the Commissioner’s earlier decision. In the reasons for decision, the Commissioner’s delegate stated:

“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.

Moreover, it is clear that the intent of the legislation is that a permit be issued where the granting of a licence is not appropriate or possible, or where other or special circumstances exist outside the ‘licensing’ provisions and restrictions 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”.

11 The Tribunal has jurisdiction to hear and determine this matter by virtue of s.75(1)(a) of the Firearms Act, 1996 and s.38 of the Administrative Decisions Tribunal Act, 1997.

HEARING

12 On 12 February 2004, the matter was listed for hearing. Mr Jamieson was not present at the Tribunal but appeared through the use of the telephone conference facility at the Tribunal.

13 On the day prior to the hearing, the Commissioner filed detailed written submissions and a copy of an unsigned letter from Gary Richmond, Manager of the Firearms Registry, dated 27 August 2003. Mr Jamieson had not been provided with a copy of either of these documents.

14 The unsigned letter from Garry Richmond stated:

“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 (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”.

15 Ms Buchanan, who appeared on behalf of the Commissioner, informed the Tribunal that Mr Jamieson was not the only applicant who had been refused a permit to possess and use a pistol for primary production. There were several hundred such refusals and they all related to applications by primary producers, who had previously been issued with a permit under paragraph 28(g) of the Firearms Act 1996.

16 She informed the Tribunal that when the Firearms Act 1996 came into operation, the Commissioner had construed s.16 of the Act, which is the section that provides for the issue of a firearm licence to possess and use a pistol (i.e. a category H licence), to exclude primary producers. As many primary producers had been authorised to possess and use pistols by way of a permit under the previous legislation, the Commissioner, in the exercise of his discretion under paragraph 28(g) of the Act, issued permits to primary producers to possess and use a pistol. As a general rule, the Commissioner issued these permits for a period of 5 years.

17 Some time in August 2003, as the permits of the primary producers were about to expire and they were re-applying for the renewal of their permits, the Commissioner determined that it was no longer appropriate to issue permits to possess and use a pistol to primary producers. Initially, this determination was based on the construction argument that I have referred to as the first issue in paragraph 16 above.

18 Subsequently, in the alternative to this construction argument, the Commissioner determined that for safety reasons it was no longer appropriate to issue these permits to primary producers. This determination was reflected in the abovementioned letter of Garry Richmond. It was argued that this determination was in the form of a guideline or advice as to how the Commissioner would exercise his discretion under paragraph 28(g) of the Firearms Act 1996. Subsequently, the Commissioner also relied on a report, dated 15 October 2003, of Senior Sergent W Hoffman, a NSW Police forensic ballistics expert. In that report Senior Sergent W Hoffman stated that in his opinion longarm firearms (rifles and shotguns) were more suitable and appropriate for use, in dealing with wild animals in the natural environment and he set out his reasons for this view.

19 As the Commissioner’s submissions raised preliminary issues of construction and if the Commissioner was correct in his interpretation this would result in the Commissioner’s decision being affirmed on legal grounds alone, the parties agreed that the Tribunal should determine these issues as a preliminary matter. Accordingly, Ms Buchanan, who appeared for the Commissioner, made oral submissions on the day of hearing. Mr Jamieson also made oral submissions and was given the opportunity to file and serve written submissions in reply to the Commissioner’s submissions by 1 March 2004.

20 These are the reasons for decision on these preliminary issues.

ISSUES

21 In his submissions the Commissioner argued that on the proper construction of paragraph 28(g) of the Firearms Act 1996 that paragraph did not permit the issue of a permit to possess and use a pistol for primary production purposes. That is, as the licensing scheme made no provision for the Commissioner to issue a licence to a primary producer to possess and use a pistol (category H licence), the Commissioner could not circumvent that particular provision by issuing a primary producer a permit to possess a permit under paragraph 28(g) of the Act. Accordingly, the first issue is whether as a matter of construction paragraph 28(g) of the Firearms Act 1996 prohibited the Commissioner from issuing a permit to a primary producer to possess and use a pistol.

22 The second issue is also one of construction and it was argued in the alternative to the abovementioned first issue. In respect of the second issue the Commissioner argued that paragraph 28(g) of the Firearms Act 1996 expressly gave the Commissioner the power to determine the circumstances as whether a permit was “appropriate” or not. Where the Commissioner had exercised his power under this paragraph, as he had done in the case of primary producers possessing and using a pistol, the Tribunal had no power to go behind the exercise of that power and the decision made under it.

RELEVANT LEGISLATION

23 The Firearms Act, 1996 (“the Act”) makes provision for the regulation, control and registration of firearms and the licensing of persons to possess and use a firearm. The principles and objectives of the Act are set out in s. 3 of the Act, which provides as follows:

“ 3(1) The underlying principles of this Act are:

(a) to confirm firearms possession 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 control upon 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 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”.

24 The licensing provisions are contained in Part 2 of the Act. This Part is divided into three Divisions. Division 1 creates an offence where a person possesses or uses a firearm without being authorised to do so by a firearms licence or a firearms permit (see s. 7A of the Act). Division 2 makes provision for the issue of a ‘firearms licence’ and Division 3 makes provision for the issue of a ‘firearms permit’.

a) Firearms licence

25 Section 8 of the Act prescribes 7 different types of licences. These are a category A, B, C, D and H firearms licence, a firearms dealer licence and a firearms collector licence. Each category of firearms licence relates to specific types of firearms. For example, air rifles, rim fire rifles (other than self loading), shot guns (other than pump action or self loading) and shot gun/rim fire rifle combinations are all category A firearms. Muzzle loading firearms (other than pistols), centre fire rifles (other than self loading) and shot gun/centre fire rifle combinations are all category B firearms. Pistols, other than a prohibited firearm are category H firearms. This is the only category, which covers hand held firearms.

26 Section 12(1) of the Act provides that the Commissioner must not issue a licence unless the Commissioner is satisfied that the Applicant has a ‘genuine reason’ for possessing or using the firearm. The term ‘genuine reason’ is defined in s.4 to mean a genuine reason as referred to in the Table to s.12. That table contains 8 genuine reasons; namely:

Sport/target shooting

Recreational hunting/vermin control

Primary production

Vertebrate pest animal control

Business or employment

Occupational requirements relating to rural properties

Animal welfare

Firearms collection

27 The relevant ‘genuine reasons’ for the purposes of this application are ‘primary production’, ‘vertebrate pest animal control’ and ‘business or employment’. These are described in the Table to s. 12 as follows:

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 vertebrae pest animals on the land concerned).

Reason: vertebrate pest animal control

The applicant must be:

(a) a professional contract shooter engaged or employed in controlling vertebrate pest animals on rural land, or

(b) a person employed by or in, or authorised by, a government agency prescribed by the regulations that has the functions relating to the control or suppression of vertebrate pest animals, or

(c) 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 who is participating in an authorised campaign conducted by or on behalf of a government agency or public authority to eradicate large feral animals that are affected by brucellosis or tuberculosis.

Reason: Business or Employment

The applicant must demonstrate that it is necessary in the conduct of the Applicant’s business or employment to possess or use the firearm for which the licence is sought.

28 A category C, D and H licence each relate to a specific ‘genuine reason’. That is, the issue of these categories of licence are restricted to the specifically prescribed ‘genuine reason’. For example, the Commissioner must not issue a category C licence to a person unless the applicant establishes that his/her genuine reason for being issued with a licence is ‘primary production’ or for any other genuine reason prescribed by the regulations (see s. 14(a) of the Act). A category D licence can only be issued where the applicant establishes that his/her genuine reason for being issued with a licence is ‘vertebrate pest animal control’ (see s. 15(a) of the Act). The genuine reason restrictions on the issue of a category H licence are set out in s. 16(1)(a) of the Act, which provides, so far as is relevant, as follows:

16(1) 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.

(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 posses or use a pistol.

29 In addition to being satisfied that the applicant has established the requisite ‘genuine reason’ for possessing and using a firearm, ss, 13, 14(b), 15(b) and 16(1)(b) (see above) of the Act require the Commissioner to be satisfied, from evidence produced by the applicant, that the applicant has a “special need” to possess or use a firearm to which the category of licence applied for applies. In the case of a category C and D firearms licence application the applicant is also required to produce evidence to the satisfaction of the Commissioner that the applicant’s “special need” cannot be met by any other means, including a category A or B firearms licence (see s. 14(c) and 15(c) of the Act).

30 Other than a category D firearm licence or a probationary pistol licence (i.e. a probationary category H (sport/target shooting) licence: see ss. 16A and 16B of the Act), all firearms licences once issued remain in force for a period of 5 years unless the regulations prescribe a shorter period. A category D firearm licence and a probationary pistol licence remain in force for 12 months.

b) Permits

31 Section 28 of the Act makes provision for the issue of permits. That section provides as follows:

28.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.

32 Section 31 of the Act makes provision for a permit to acquire a firearm. That section provides that a separate permit must be obtained for every firearm that is purchased and that the permit once issued is only valid for 30 days or such longer period as approved by the Commissioner.

33 In accordance with s.28(c) of the Act, Part 6 of the Firearms (General) Regulation 1997 (the Regulation) prescribes 20 circumstances where a permit may be issued. These are as follows:

43. Permit to purchase non prohibited firearm on leaving Australia

44. Permit authorising possession of firearm as heirloom

45. Firearms museum permit

46. Permit for firearms used in film, television or theatrical production

47. Theatrical armourers permit

48. International (temporary) visitors permits—competitions

48A. International visitors—exemption for those holding international (temporary) visitors permits issued interstate

49. Permit for tranquilliser firearms

50. Permit to conduct paint-ball games

51. Permit authorising possession of paint-ball guns

52. Permit to operate safari tours involving firearms

53. Permit authorising overseas persons to participate in organised safari tours or other hunting activities

54. Permit for non-prohibited firearms used in historical re-enactments

54A. Permit for certain cannon

55. Permit for powerheads

56. Permit for starting pistols

57. Arms fair permit

58. RSL club display permit

59. Ammunition collection permit

59A. Permit for large calibre pistols used in specialised shooting competitions

34 Clause 21 of the Regulation provides that a permit once issued remains in force for 5 years unless the Act, the Regulation or the Commissioner provides to the contrary.

SUBMISSIONS

35 Mr Jamison submitted that he had been the holder of a pistol permit for many years. He has always only used the pistol for the purpose of primary production on his property and he has at all times used and stored the pistol safely. He had completed the forms sent to him by the Firearms Registry. When his pistol permit needed renewal the Registry sent him a proforma Permit form and a proforma certificate of inspection to be completed by the local police officer. Mr Jamieson completed the proforma documents and obtained a letter from the local police Sergeant in which he supported Mr Jamieson’s need for a pistol. Having complied with what he had been sent together with the fact that he had been the holder of a pistol permit for 25 years, Mr Jamieson submitted that this was sufficient for the Commissioner to again approve his application for a permit.

36 Ms Buchanan, on behalf of the Commissioner, submitted that as a matter of construction the intent of the Firearms Act 1996 is that a permit be issued only in circumstances where a licence is not appropriate or possible. The Commissioner relied on the decisions of Christianos v Commissioner of Police [1999] NSWADT 66 and Khamis v Commissioner of Police [2001] NSWADT 21 in support of this contention. The thrust of the argument was that as the Act expressly makes provision for the issue of a firearms licence in circumstances where an applicant’s genuine reason for having a firearms licence is primary production, the permit provisions do not apply.

37 Additionally, the Commissioner submitted that the Act prohibits the issue of a category H licence for the purposes of primary production. This he stated ‘cannot be said to be by omission on the part of the legislature.’ He acknowledged that the term ‘business’ could include a primary production business. However, it was his submission that it was expressly excluded from the definition of ‘business’ in s. 16(1)(a)(ii) of the Act because the table in s.12 has separated out the term ‘primary production business’ from the term ‘business’. With such a construction being placed on the licensing provisions of the Act, the Commissioner submitted that he would be circumventing the licensing provisions of the Act if he granted a permit to primary producers to possess a pistol. That is, he would be granting primary producers an authority to possess and use a pistol, when the licensing provisions clearly prohibit this.

REASONS and DECISION

38 The Tribunal can understand Mr Jamieson’s frustration at being refused that which he has lawfully held for the past 25 years. However, there is no question that when Parliament enacted the Firearms Act 1996 it was enacting comprehensive and tough gun laws that were to be adopted throughout Australia. In certain aspects these laws have become even tougher and the Commissioner has an ongoing duty to ensure that his administration of the Act accords with the intention of Parliament as set out in the principles and objectives in s. 3 of the Act.

39 Since this matter was heard, the Tribunal has considered several other applications from primary producers seeking review of decision by the Commissioner to refuse their application for renewal of their primary producer permit to possess and use a pistol: see Clyne v The Commissioner of Police, NSW Police [2004] NSWADT 52; Field v Commissioner of Police, NSW Police [2004] NSWADT 82 (currently subject to appeal); Saiko v Commissioner of Police, NSW Police [2004] NSWADT 99. The basis of the Commissioner’s decision to refuse their applications for a permit is similar to that on which Mr Jamieson’s permit was refused. I will deal with these decisions more fully below.

Issue 1

40 As mentioned in paragraph 20 above, the first issue for determination is whether as a matter of construction paragraph 28(g) of the Act prohibits the Commissioner from issuing a permit to a primary producer to possess and use a pistol for the genuine reason of primary production.

41 The Commissioner’s argument is based on a particular construction he has placed on the genuine reasons specified in s.16(1)(a) of the Act. In particular he argues that s.16 does not include ‘primary production’ as a genuine reason for possessing and using a category H firearms licence. Some support for this can be found in Clyne (supra) where Judicial Member Rice made the following statements:

“12 The solicitor for the Commissioner submitted, quite rightly as an observation on any attempt to circumvent the licensing provisions, that to do so would be contrary to the spirit of the Act. However, I do not accept that an application for a permit must necessarily be characterised as an attempt to circumvent the licensing provisions. The permit provisions must have some work to do in the Firearms Act. Clearly they are intended to operate ‘in such circumstances as Commissioner considers appropriate’ and those circumstances are not limited by the circumstances on which a licence would be issued.

13. The Act makes clear that a licence will be issued only in limited circumstances. However, a permit might nevertheless be issued ‘in such circumstances as Commissioner considers appropriate’. It may be that those circumstances are circumstances for which a licence will not be issued. Whether through the issue of a licence or of a permit, a person is able to use a firearm lawfully. The issue of a permit is not circumventing the restrictions on the issue of a licence; rather, it is supplementing those provisions for the discretion in the Commissioner, according to circumstances.

...

27. Specifically, the Commissioner makes the point that a licence for a Category H firearm would not be issued for primary production purposes. Thus he submits, an application for a Category H permit should be approached with considerable circumspection.

28. This is, I think, a source of a misguided submission that the application for a permit is a request to the Commissioner to consider particular circumstances and to decide whether, despite a licence not be available for the particular purpose, a permit might be made available for the same purpose because of those circumstances. I agree however that the approach taken in the Act to licensing is a relevant consideration in exercising the discretion to issue a permit”.

42 I agree with Judicial Member Rice that, as a matter of construction, paragraph 28(g) of the Act does not prohibit the issue of a permit in circumstances where a licence cannot otherwise be issued. As Judicial Member Rice pointed out, such construction would render the operation of paragraph 28(g) completely nugatory.

43 However, in my opinion, paragraph 28(g) of the Act does not enable the Commissioner to broaden, in a general sense, the basis on which a particular category of licence can be issued. As set out above, Parliament has expressly provided that a licence is not to be issued unless an applicant can establish, to the Commissioner’s satisfaction, that he/she has a genuine reason for the possession and use of a firearm, that this genuine reason accords with that which is prescribed for the licence applied for and in the case of a category B, C, D, and H licence, the applicant establishes that he/she has a special need for such a licence. In addition to these licensing provisions, Parliament has provided for the issue of permits for specified purposes and in specified circumstances. With the exception of paragraph 28(g) of the Act, these specified purposes and specified circumstances all relate to specialised or specific event or activity and are considerably narrower than the genuine reasons provided for in the licensing provisions. Paragraph 28(g) is the last mentioned circumstance in which a permit may be issued and, in my opinion, is a catch all provision to enable the issue of a permit in circumstances not covered by the other permit or licensing provisions under the Act and for this reason it too must be narrowly construed. What it does not provide is a general power to grant a specific category of licence, by means of a permit, to a group of persons for genuine reasons other than those prescribed for that category. That is, this is a power to grant a permit to possess and use a firearm in special or exceptional circumstances.

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 ids 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.

Issue 2

48 As referred to in paragraph 21 above, the second issue is also one of construction and relates to whether the Tribunal is able to go behind the guideline or advice of the Commissioner in regard to the exercise of his discretion under paragraph 28(g) of the Firearms Act 1996. While this is the way in which this issue was argued by the Commissioner, it is essentially an issue relating to the question of how the Commissioner is to exercise his discretion under s. 28 of the Act.

49 The decision of Clyne (supra) and Saiko (supra) have largely answered this question. In Clyne, Judicial Member Rice stated the following:

“14. It is evident from Mr Richmond’s memo that the Commissioner has formed a view that it [sic] will never, in any circumstances, be the case that a permit will be issued for possession and use of a Category H firearm for the purpose of primary production.

15. First, this appears problematic, as a matter of good sense: there are primary producers and primary producers. A small scale grape grower is likely to have less need, if any at all, for a Category H pistol, but a sheep farmer may well have such a need. As Mr Clyne said in his written submissions to the Tribunal: ‘some primary producers have a special need for a Category H firearm permit which the Commissioner would consider appropriate for a permit to be granted for a Category H firearm’.

16. However, I think the Commissioner’s position is more problematic as a matter of law. It offends against the ‘rule against fettering’.

17. Aronson & Dyer, Judicial Review of Administrative Action Sydney LBC Information Services, 2000, 2nd ed) described the rule against fettering in this way. It is permissible for the Commission to ‘at least be ‘guided’ by a predetermined rule, provided, of course, that the guidance rule conforms to the Act’s subject matter, scope, purpose and detail’ (at page 236). That predetermined rule must be a lawful one and it is not lawful if it ‘omits considerations which the decision-maker is bound to take into account’ (at page 236).

19. In Perder Investments Pty Ltd v Light Tower (1990) 101 ALR 151, the relevant authority decided that the discretion to allow the transfer of commercial fishing licences would not be exercised for any licence to fish for prawns; the decision-maker ‘shut his ears’ to the application. The case is sited by Aronson & Dyer as illustrating a policy which was unlawful because it omitted consideration by stating that a discretion will never be exercised in certain cases.

20. In this case the Commissioner has promulgated a ‘guidance rule’ in terms set out in Mr Richmond’s memo. Similarly to the approach in Perder Investments, the Commissioner in this matter has issued a ‘guidance rule’ that the discretion to issue a permit for the possession and use of firearms will never be exercised for any permit to possess and use a Category H firearm for the purpose of primary production”.

50 The decision in Clyne was followed by Judicial Member Montgomery in Saiko (supra). In my opinion, Judicial Member Rice correctly stated the law and its application to the determination of the Commissioner as set out in the letter of Mr Richmond. The same letter forms the basis of the Commissioner decision in this application. Accordingly, I make a similar finding to that made in Clyne and Saiko that the determination amounts to a fetter of the Commissioner’s discretion and is therefore inapplicable.

51 In any event, the Commissioners power under paragraph 28(g) of the Act, is not a power to determine circumstances that are not appropriate for the issue of a permit. His power under this paragraph is a power to determine whether particular circumstances are appropriate for the issue of a permit.

52 To assist the parties in the preparation for the hearing of this matter, I wish to set out what, in my opinion, is the applicable law in respect of the Commissioner’s exercise of discretion under paragraph 28(g) of the Act. In this regard, I adopt the following statements of Judicial Member Montgomery in Saiko (supra):

“22. The 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 public interest. The legislation restricts the possession of Category H pistols to a very narrow base. The possession and use of Category H pistols pursuant to a permit should be no less restrictive than that pursuant to a licence.

24. Nevertheless, it is appropriate that any exercise of discretion accord with the principals and objects of the Act. In my view, 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”.

53 For the reasons stated above I order:

a) The preliminary questions are determined as follows:
i) on a proper construction of paragraph 28(g) of the Act the Commissioner is given power to grant a permit in circumstances where a licence could not be issued;

ii) the Commissioner’s guideline as set out in the letter dated 27 August 2003 of Garry Richmond, Manager Firearms Registry, is of no effect as it is a fetter on the Commissioner’s discretion under paragraph 28(g) of the Act.

b) The matter to be re-listed for further directions by Registry on a date that is suitable to both parties.