Kashani v Commissioner of Police
[2011] WASC 6
•11 JANUARY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: KASHANI -v- COMMISSIONER OF POLICE [2011] WASC 6
CORAM: JENKINS J
HEARD: 16 NOVEMBER 2010
DELIVERED : 11 JANUARY 2011
FILE NO/S: GDA 10 of 2010
BETWEEN: NAEIM KASHANI
Appellant
AND
COMMISSIONER OF POLICE
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :MR T CAREY (MEMBER)
Citation :KASHANI and COMMISSIONER OF POLICE [2010] WASAT 80
File No :CC 1944 of 2009
Catchwords:
Administrative law - Appeal from State Administrative Tribunal - Refusal to extend firearms licence - Whether appellant had a 'genuine reason' for acquiring or possessing a firearm within the meaning of the Firearms Act 1973 (WA) s 11A - Whether appellant had a 'genuine need' for acquiring or possessing a firearm within the meaning of the Firearms Act s 11B - Adequacy of reasons - Relevant considerations
Legislation:
Firearms Act 1973 (WA), s 4, s 11, s 11A, s 11B, s 22
Firearms Amendment Act 1996 (WA)
Firearms Regulations 1974 (WA), r 6A, sch 3
State Administrative Tribunal Act 2004 (WA), s 11, s 27, s 105
Result:
Leave to appeal granted on grounds 3A, 3B and 4A only.
Appeal allowed in respect of ground 4A only.
Matter be remitted to SAT to be heard according to law.
Category: A
Representation:
Counsel:
Appellant: Mr P J Marsh
Respondent: Mr J F O'Sullivan
Solicitors:
Appellant: Stoddart & Co
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120; (2009) 169 LGERA 15
Kashani and Commissioner of Police [2010] WASAT 80
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Physiotherapists Registration Board v Townsend [2008] WASCA 25
Re Brown; Ex parte Scudds (1995) 14 WAR 270
Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109
Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331
JENKINS J: Naemi Kashani applied to the Commissioner of Police for an extension of his firearms licence to include a licence to possess a .223 calibre rifle. The Commissioner refused the application. Mr Kashani's application to the State Administrative Tribunal (SAT) for a review of the Commissioner's decision was dismissed: Kashani and Commissioner of Police [2010] WASAT 80. Mr Kashani has appealed that decision.
Grounds of appeal
There were seven grounds of appeal. At the hearing of the appeal Mr Kashani abandoned grounds 1 and 4B. He was given leave to amend grounds 5A and 7. The remaining grounds of appeal are that SAT erred in law:
2By failing to determine and apply the law, when;
a)The Appellant having placed the basis of his application for an addition to his firearm licence on Section 11(2)(c) of the Firearms Act 1973 (WA);
b)The Appellant is the owner of the land on which the Appellant proposes to undertake hunting or shooting of a recreational nature.
c)The Tribunal, having expressed doubts about the applicability of Section 11(2)(c) Firearms Act, did not rule on the issue.
3AWhen the Tribunal misconstrued s 11A(3) of the Firearms Act to mean that in determining if the particular kind of firearm and ammunition for which the licence is sought is reasonably justified the Tribunal may take into account the characteristics of the firearms currently possessed by the Appellant.
3BAlternatively to 3A, when, in applying s 11A(3) of the Firearms Act the Tribunal took into account irrelevant facts, being the characteristics of the firearms presently possessed by the Appellant.
4AWhen the Tribunal found that, on the proper construction of s 11A of the Firearms Act, (assuming that to be a reference to s 11A(2)(c)), it is necessary for the Appellant to demonstrate a particular existing need for the firearm being sought.
5AWhen the Tribunal found that the combined characteristics of the Appellant's existing firearms are such that the Appellant could not have a genuine reason to acquire the additional firearm when no reasonable Tribunal could, in the circumstances, make that finding.
Alternatively there was not material before the Tribunal on which the decision could properly be based.
5BFurther, the Tribunal denied the Appellant procedural fairness,
a)By taking into account the characteristics of the Appellants existing firearms as though they could be used in combination together when engaged in shooting or hunting of a recreational nature;
b)The Tribunal having not given the Appellant the opportunity to make submissions and produce evidence on the practicality of using the firearms in combination together when engaged in shooting or hunting of a recreational nature.
6When, in applying s 11B of the Firearms Act and Regulation 6A of the Firearms Regulations 1974 (WA) the Tribunal applied a test of 'suitable for that purpose' when the test required by the legislation is that the Category A firearm be 'inadequate or unsuitable for that purpose'.
7When it acted as though it had found as a fact that a Category A firearm was adequate and suitable for the Appellant's purpose when it did not expressly state the finding and no reasonable Tribunal could in the circumstances make that finding.
Alternatively there was no material before the Tribunal upon which the conclusion could be properly based.
Leave to appeal
Leave to appeal is required in respect of each proposed ground of appeal: State Administrative Tribunal Act 2004 (WA) (SAT Act) s 105(1). Further, an appeal against a decision of SAT may only be brought 'on a question of law': SAT Act s 105(2).
In Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16] ‑ [18] Buss JA (Wheeler and Pullin JJA agreeing) enunciated the principles relevant to the grant of leave from a decision of SAT. His Honour said that leave should be granted if, in all the circumstances, a grant of leave is in the interests of justice. The guidelines articulated in Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331 should be taken into account when considering whether to grant leave. Those guidelines are that the applicant must identify a question of law which is the subject of the appeal. The importance of the question, either generally or to the appellant is relevant to whether leave should be granted. The appellant must show that there is a real or significant argument to be put on the question of law in order to justify the grant of leave.
What is a question of law?
Also in Paridis v Settlement Agents Supervisory Board [53] ‑ [57] Buss JA considered what constituted a question of law. His Honour said:
Where an appeal lies 'on a question of law' the subject matter of the appeal is the question or questions of law. If a question raised by a litigant, properly analysed, is not a question of law, linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law. [53]
Buss JA then stated some applicable principles, which I have previously summarised as follows:
1.A question of mixed law and fact is not a question of law within s 105(2);
2.A ground of appeal which asserts that a decision is against the evidence and the weight of the evidence does not raise a question of law;
3.A tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis;
4.A ground of appeal that a tribunal has made a finding which is manifestly unreasonable, in the sense that no reasonable tribunal could have made that finding, alleges an error of law;
5.A ground of appeal that a tribunal has failed to take into account a consideration which, in the circumstances, it was bound to take into account, alleges an error of law; and
6.It is not sufficient if the consideration which the tribunal is alleged not to have taken into account is merely one that may be properly taken into account, or that many persons may have taken into account.
Counsel for Mr Kashani points out that the fourth principle was subject to further comment in Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109 [57] ‑ [58]. I do not read anything that Owen JA said there as contradicting the above proposition. However, his Honour noted the limited nature and scope of review of a decision on the basis of this type of unreasonableness, known as Wednesbury unreasonableness, and that fact‑finding cannot be challenged on this basis; rather, only a decision maker's discretionary decision is amenable to review on this ground.
These principles are relevant because the Commissioner submits that some of the grounds of appeal do not raise questions of law.
Background
At all relevant times Mr Kashani was licensed to possess and use two firearms; a .22 calibre rim fire rifle and a .270 calibre centre fire rifle. On 16 October 2008 he applied to the Commissioner to license a bolt action repeater Winchester centre fire, single barrel .223 calibre rifle. Throughout these reasons I will refer to the three rifles as the .22 rifle, the .270 rifle and the .223 rifle, respectively. At the time of lodging his application, Mr Kashani stated that his reason for applying for a licence for the .223 rifle was 'to be used for the eradication of vermin such as foxes and wild dogs' on his 'hobby farm' in Toodyay. He also stated that the firearms would be stored in a safe in a suburban location.
On 3 November 2009, after the Commissioner had made various enquiries, a delegated officer of the Commissioner wrote to Mr Kashani advising him that his application had been refused because of the following information:
•The genuine reason for a firearm of a .223 calibre when Police inquiries have revealed there is not a prevalence of the type of vermin (wild dogs) as stated in your application on your nominated property.
•The genuine need for a firearm of a .223 calibre when firearms already in your possession appear suitable for the vermin present on the nominated property.
•This is not considered a genuine reason under the Act as there is no evidence provided by you to support the notation that the firearm sought can be reasonably justified under the circumstances as described above.
Pursuant to the Firearms Act 1973 (WA) (the Act) s 22, Mr Kashani applied to SAT for a review of that decision. For the purpose of the review the Commissioner filed a Statement of Issues, Facts and Contentions (the Commissioner's statement). Mr Kashani filed a Response to that document (Mr Kashani's response). I will refer to the substance of those documents when dealing with specific grounds of appeal.
The review by SAT was by way of a hearing de novo. The purpose of the review was to 'produce the correct and preferable decision at the time of the decision upon the review': SAT Act s 27. When determining the review SAT had the same functions and discretions as the Commissioner had when his delegate made his decision.
SAT, constituted by a single member, conducted the review on 23 April 2010. The Commissioner called one witness, Sergeant Gregory Paul McComish, the officer in charge of Toodyay Police Station. Mr Kashani gave evidence and also called Barry Wilmot. Mr Wilmot has been involved in shooting for about 50 years. He hunted on pastoral and farming properties through Western Australia during that period. He is a life member of the Western Australian branch of the Sporting Shooters Association of Australia, has been a member of field and game associations since 1980, and has owned and operated firearms retail shops. He is a published author of a book on reloading firearms and a contributor to a shooting magazine.
On 4 June 2010 SAT delivered its reasons for dismissing the review. I will refer to portions of those reasons and the evidence when dealing with specific grounds of appeal.
Relevant Firearms Act provisions
The Act s 11(1) states:
(1)The Commissioner cannot grant an approval or permit or issue a licence under this Act to a person if the Commissioner is of the opinion that -
(a)to do so would be contrary to section 11A or regulations under section 11B or 11C;
(b)it is not desirable in the interests of public safety; or
(c)the person is not a fit and proper person to hold the approval, permit, or licence.
Paragraph (c) was never an issue at the review. Paragraph (b) was relied on by the Commissioner but SAT rejected that ground and that part of SAT's decision is not under appeal. SAT relied on s 11(1)(a) and, specifically, s 11A and s 11B to dismiss Mr Kashani's review.
Sections 11A and 11B relevantly state:
11A. Genuine reason required in all cases
(1)An approval or permit cannot be granted, and a licence cannot be issued, under this Act to a person who, in the Commissioner's opinion, has not been shown to have a genuine reason for acquiring or possessing the firearm or ammunition for which the approval, permit, or licence is sought.
(2)A person has a genuine reason for acquiring or possessing a firearm or ammunition if and only if -
(a)it is for use by the person as a member of an approved shooting club and the person is an active and financial member of the club;
(b)it is for use by the person as a member of an organisation approved under this paragraph;
(c)it is for use in hunting or shooting of a recreational nature on land the owner of which has given written permission for that hunting or shooting;
(d)it is required by the person in the course of the person's occupation;
(da)in the case of a prescribed paintball gun, it is required by the person to conduct or engage in paintball in accordance with this Act;
(e)it is to form part of a genuine firearm collection or genuine ammunition collection; or
(f)it is for another approved purpose.
(3)A person does not have a genuine reason for acquiring or possessing a firearm or ammunition of a particular kind unless the Commissioner is satisfied not only as to the person's reason for acquiring or possessing a firearm or ammunition but also that the particular kind of firearm or ammunition can be reasonably justified.
…
11B. Genuine need required in some cases
(1)The regulations may provide that, for prescribed categories of firearms or ammunition, an approval or permit cannot be granted, and a licence cannot be issued, under this Act to a person unless the Commissioner is satisfied that the person has a genuine need to acquire or possess a firearm or ammunition of that category.
(2)The regulations may make provision as to the circumstances in which a person can or cannot be considered to have a genuine need to acquire or possess a firearm or ammunition of a particular category.
'Approved' is defined in the Act s 4 to mean 'approved by the Commissioner'.
The Firearms Regulations 1974 (WA) (the Regulations) reg 6A relevantly states:
(1)For the purposes of these regulations a firearm is of the category indicated in Schedule 3.
(2)If Schedule 3 specifies a genuine need test for a particular category of firearms -
(a)an approval or permit cannot be granted and a licence cannot be issued to a person unless the Commissioner is satisfied that the person has a genuine need to acquire or possess a firearm of that category; and
(b)a person cannot be considered to have a genuine need to acquire or possess a firearm of that category unless the test specified in Schedule 3 is satisfied.
…
(4)If, for a particular category of firearms, Schedule 3 specifies any restriction on the grant of an approval or permit or the issue of a licence, an approval or permit cannot be granted and a licence cannot be issued except in accordance with that restriction.
At the relevant time, the Regulations sch 3 provided, in part:
Category A
Sub-category Description
A1 an air rifle
A2.1 a single shot rim fire rifle
A2.2 a repeating rim fire rifle
A3.1 a single shot shotgun
A3.2 a double barrel shotgun
A3.3 a repeating shotgun (lever or bolt action)
A4.1a combination firearm made up of a shotgun and a rifle each of which would individually be of category A
A4.2a rifle combination made up of rifles each of which would individually be of category A
Category B
Sub-category Description
B1a muzzle loading firearm (except a handgun)
B2.1 a single shot centre fire rifle
B2.2 a double barrel centre fire rifle
B2.3 a repeating centre fire rifle
B3.1a combination firearm, not of category C or D, made up of a shotgun and a rifle at least one of which would individually be of category B
B3.2a rifle combination, not of category C or D, made up of rifles at least one of which would individually be of category B
Genuine need test for category B
The applicant is required to satisfy the Commissioner that a firearm of category A would be inadequate or unsuitable for the purpose for which the firearm is required.
The schedule also contained category C ‑ H. These categories are not relevant to this appeal. The schedule was amended in August 2010 but the amendments are not relevant to this appeal.
Ground 2
Mr Kashani complains that if SAT had ruled that s 11A(2)(c) did not apply to his application, he would have sought to rely on s 11A(2)(f). He says that SAT's failure to comply with its legal duty to determine whether s 11A(2)(c) applied denied him the opportunity of relying on the alternative provision.
An issue arose in SAT as to whether s 11A(2)(c) was capable of applying to Mr Kashani because, as an owner of the relevant land on which he intended to use the .223 rifle for recreational purposes, he may not be able to give himself permission to hunt or shoot on it.
The issue arose in the context of the reason given by Mr Kashani for wanting the extension of his licence. That reason did not neatly fall into any of the statutory criteria in s 11A(2). That point was not directly raised in the Commissioner's statement and nor was a reason for the extension which was directly referable to the criteria in s 11A(2) specified in Mr Kashani's response. However, par 18 of the Commissioner's statement said:
It is the [Commissioner's] view [Mr Kashani] has not satisfied the genuine reason and genuine need test as required by the Act, and furthermore the licensing of this particular firearm is not in the public interest.
It was only during his oral submissions to SAT that the Commissioner's representative noted that Mr Kashani had not asserted a reason for wanting an extension which was referable to s 11A(2)(c) (SAT ts 57). Despite raising the point, he did not expand on how SAT might deal with that issue. At the end of counsel's oral submissions, the SAT member asked him what the Commissioner's position was on whether or not 'a genuine reason was made out in this case' (SAT ts 58). After an exchange between the SAT member and the Commissioner's representative, the position seems to me to have been that SAT was told that the Commissioner was relying on s 11A, on the basis that Mr Kashani did not meet s 11A(3), and s 11B; not on s 11A(2).
In its reasons for decision, after quoting ss 11A(1), (2)(c), (2)(d) and (3), SAT said:
The reasons given by the Commissioner's delegate for refusing the licence application did not include a failure to establish the existence of one of the limited grounds for genuine reason under s 11A(2) of the Firearms Act. Taking those grounds at face value, and those that are reproduced above are the only ones which could arguably fit Mr Kashani's circumstances, none of them is particularly apposite to a case such as his. Mr Kashani is a rural property owner, but farming is not his occupation, making the s 11A(2)(d) ground inapplicable. He lives in a suburb of Perth and works in information technology. He wishes to have the firearm applied for when he visits his rural property, in the main, on weekends. Neither does the s 11A(2)(c) ground have ready application, Mr Kashani himself being the owner of the land on which the proposed hunting or shooting of recreational nature is contemplated. However, as I take the Commissioner's position, he regards the licence application as falling foul of other provisions of the Firearms Act which relate to the characteristics of the particular firearm being applied for. Perhaps he felt constrained in raising the possibility that none of the s 11A(2) grounds applies by reason of the fact that Mr Kashani has been licensed on two previous occasions. Whatever the reason, I will direct my deliberations to those issues upon which the Commissioner determined the matter adversely to Mr Kashani [13].
SAT's decision not to pursue its doubts about the applicability of s 11A(2)(c) or (d) were in favour of Mr Kashani.
SAT was not required to make a determination on a factual issue if it was not in issue between the parties: City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120; (2009) 169 LGERA 15 [23]; Physiotherapists Registration Board v Townsend [2008] WASCA 25 [19], [21]. If, on the other hand, SAT assumed a legal principle to be correct when it was wrong or assumed a matter of fact on which there was no evidence and that assumption turned out to be to a party's detriment then that may be an error of law justifying the grant of an appeal.
In this case, the assumption which SAT made was correct in law. Mr Kashani was capable as the landowner of giving permission to himself to hunt recreationally on his own land. SAT made no relevant error of law in that assumption.
In any event, Mr Kashani's counsel told me that if SAT had given notice that Mr Kashani could not rely on s 11A(2)(c), he would not have altered the reason for wanting the extension but would have relied on s 11A(2)(f) and asked SAT to approve his reason for wanting the extension. Mr Kashani says that SAT had the authority to approve his stated reason, as on review it stands in the shoes of the Commissioner. If he had done so, that would have avoided SAT's concern as to whether an applicant can give themselves permission to hunt on their own land but the main issue between the parties as to whether Mr Kashani had a 'genuine reason' and a 'genuine need' for acquiring a firearm licence would still have had to be determined by SAT on exactly the same factual bases.
This ground of appeal has no prospects of success and should be dismissed.
Grounds 3A & 3B
These two grounds may be considered together as they both raise the issue of the proper construction of s 11A(3).
Mr Kashani's complaint is that in determining whether the criteria in s 11A(3) had been met, SAT took into account the characteristics of the firearms he was then licensed to possess. He says that SAT misconstrued s 11A(3) as permitting it to take that matter into account (ground 3A) and that in taking it into account it took into account an irrelevant matter (ground 3B).
In order to determine these grounds of appeal it is necessary to consider s 11A(3) in the context of s 11A and s 11B.
Mr Kashani says that s 11A and s 11B have distinct applications as s 11A deals with an applicant's reason to possess a firearm, s 11B deals with an applicant's need to possess a firearm and reasons and needs are different things.
In ordinary terms, a person will not have a 'genuine need' to possess a firearm unless they have a reason for doing so and the reason is compelling. A consideration of whether an applicant has a 'genuine reason' for acquiring a firearm, may well involve a consideration of issues which would also be relevant to whether that person had a 'genuine need' of a firearm.
Importantly, the terms 'genuine reason' and 'genuine need' in s 11A and s 11B do not have their ordinary meanings. Parliament has said that an applicant must have a 'genuine reason' for acquiring the firearm: s 11A(1). In s 11A(2) and s 11A(3) it has stated what are genuine reasons for the purpose of s 11A(1). Further, although s 11B speaks of a 'genuine need' for a firearm, the regulations prescribed under that section equate 'genuine need' for the purpose of that section with a need for a firearm of a more powerful firearm category, as opposed to a less powerful one. Consequently, when a decision maker considers whether an applicant has met the criteria in s 11A (genuine reason) they may consider a factor which would also be relevant to whether the applicant had a need, in ordinary terms, for the firearm, if s 11A permits or requires them to take such a factor into consideration, regardless of whether such a consideration would ordinarily be relevant, absent the statutory provisions.
However, I agree with Mr Kashani that the ultimate question under s 11A is whether an applicant has a 'genuine reason' for acquiring a firearm; not a need? If a decision maker asks themselves the wrong question in that regard they will make an error of law.
There is also an overlap between s 11A(2) and (3), insofar as they both elucidate the meaning of the requirement in s 11A(1). Section 11A(1) specifies the criterion for grant of a licence under that section, which is, relevantly, that the applicant has a 'genuine reason for acquiring … the firearm … for which the … licence is sought'. Section 11A(2) then states the reasons, one of which must be satisfied in order for an applicant to meet the criterion in s 11A(1).
Having had regard to the Minister's second reading speech for the Firearms Amendment Bill 1996, which as the Firearms Amendment Act 1996 (WA) added s 11A, s 11B and s 11C to the Act; Parliamentary Debates, Legislative Assembly, 26 September 1996, 6301 ‑ 6308, I conclude that the intention of the Parliament was that any one of the reasons specified in s 11A(2) would be a 'genuine reason' for the purpose of satisfying s 11A(1). This is in effect what the Minister said during the second reading speech at 6303.
This does not mean that all an applicant has to do is put forward one of the specified reasons and it must be accepted as a 'genuine reason' for acquiring a firearm. The reason must exist in fact. For example, if the reason in s 11A(2)(c) is relied on, the applicant must establish not only that a landowner has given written permission for hunting or shooting on their land but also that he or she (the applicant) is going to use the firearm in hunting or shooting of a recreational nature on such land.
Therefore, in Mr Kashani's case it was a legitimate consideration as to whether, for example, there were any animals on the applicant's land which were likely to be hunted, whether the evidence was sufficient to satisfy SAT that Mr Kashani would hunt the animals with the firearm, the subject of the application and whether the firearm was suitable for such hunting. However, I acknowledge that the Act does not require that there be a problem with vermin on land in order for someone to have a genuine reason for hunting or shooting on private land. Further, the Commissioner did not submit to SAT that Mr Kashani did not genuinely intend to use the .223 rifle for hunting of a recreational nature on his hobby farm.
Section 11A(3) specifies another requirement in order to satisfy s 11A(1). It is that an applicant must satisfy the Commissioner or SAT, on review, that 'the particular kind of firearm … can be reasonably justified'.
As a matter of common sense, by using the phrase 'a particular kind of firearm', Parliament has directed a decision maker to examine whether the firearm the subject of the application, rather than a firearm in general or the reason put forward by the applicant for acquiring or possessing a firearm, is reasonably justified. Thus, when applying the provision to the facts of this case, the words 'a .223 bolt action, centre fire, single barrel rifle' should be substituted for the statutory phrase 'the particular kind of firearm'.
The phrase 'can be reasonably justified' has no particular legal meaning. The words in it are ordinary words and appear to bear their ordinary meanings. They require an applicant to satisfy the Commissioner or SAT, on review, that there are sensible, adequate grounds for the applicant to possess the particular kind of firearm, the subject of the application. The phrase does import an objective test to whether the firearm the subject of the application is justified. Matters personal to an applicant may be relevant to this test but, ultimately, the test is whether objectively there are sensible, adequate grounds for the applicant to possess the particular kind of firearm the subject of the application.
In the context of the facts of this case, Mr Kashani was required to satisfy the Commissioner or SAT, on review, that there were sensible, adequate grounds for him to hold a licence to possess a .223 bolt action, centre fire, single barrel rifle.
The determination of this question had to be made in light of all relevant factors including matters personal to Mr Kashani, matters relevant to the public and matters relating to the particular kind of firearm the subject of the application. I do not agree with Mr Kashani's submission that SAT was not permitted to take into account under s 11A(3) the characteristics of other firearms he was then licensed to possess. The fact that he was licensed to possess other firearms and the characteristics of those firearms was a matter personal to Mr Kashani. It was part of his circumstances that he already held those licences and also what he held them for.
Section 11A(3), in its terms, is very broad and permitted the relevant decision maker in this case to take into account any consideration which could rationally affect an assessment as to whether a .223 bolt action single barrel rifle was reasonably justified. I reject Mr Kashani's submission that the relevant decision maker could only take into account the characteristics of the firearm the subject of the application and the reason for which that firearm was wanted. There is nothing in the statutory provision to place such a restriction on its meaning.
Relevant to these grounds of appeal, SAT stated:
Section 11A(3) of the Firearms Act imports into the notion of genuine reason a requirement that the particular kind of firearm the subject of the licence application be capable of reasonable justification. What this means in practice is that a licence applicant must show some rational basis for justifying holding the particular firearm sought.
A question arose at the hearing of the relevance of Mr Kashani's other firearms to the genuine reason question. Counsel for Mr Kashani, Mr Marsh, submitted that once a particular firearm is capable of reasonable justification by reference to a particular purpose, that is the end of the matter and the holding of another firearm becomes irrelevant. I do not accept this submission. The primary requirement for licence applicants appearing in s 11A of the Firearms Act is that the applicant demonstrates a genuine reason for acquiring or possessing the firearm for which the licence is sought. Section 11A(3) contains, in double negative form, the further requirement that the particular kind of firearm sought to be licensed can be reasonably justified. But it does not detract from the broader genuine reason requirement. A person will not have a genuine reason for acquiring a firearm where the purpose for which the firearm is required is already catered for by another firearm or firearms. If the argument on behalf of Mr Kashani was accepted, the absurd result would follow that an applicant could successfully apply to be licensed for multiple identical firearms, based on satisfaction of the s 11A(3) test in each case.
I turn then to consider whether Mr Kashani has demonstrated a genuine reason for possessing a .223 calibre rifle, having regard to his other licensed firearms. [14] ‑ [16]
SAT then considered the facts and then stated:
I accept the potential, in rural areas where animals are kept, of wild dogs, foxes and other pests causing damage. But Mr Kashani has never seen a wild dog, in the sense he wishes to convey of an uncontrolled or feral dog, on his property, despite having owned it since 2005 and visiting on average every week. He did not refer to any cases of the chickens he had from 2007 being attacked, whether by wild dogs or any other animal. The genuine reason test under s 11A of the Firearms Act, and the reasonable justification requirement of s 11A(3), require a licence applicant to demonstrate a particular existing need for the firearm being sought. Mr Kashani's main concern seems to be that he be armed now with the most appropriate firearm to deal with problems he anticipates with wild dogs in the future. On a proper construction, s 11A does not allow access to firearms for such future contingencies.
As for what are clearly second‑order concerns of Mr Kashani about foxes and rabbits, he admits having shot two foxes with the .270 rifle, albeit emphasising the 'unfriendly' nature of that firearm in terms of its weight, the need to regularly practise with it in order to maintain accuracy, and also the greater danger which it poses compared with a .223 rifle. The evidence going to the rabbit population on the farm was scant.
Mr Wilmot's evidence, although corroborating Mr Kashani's criticisms of the .270, and explicitly preferring a .223 to a .270 and a .22 for controlling the types of animals mentioned, was to the effect that the .270 and the .22 were capable and effective in eradicating foxes, the .22 at a distance from 50 to 60 metres and the .270 over greater distances. This evidence is a sufficient basis to reject the claim of a genuine reason to acquire a .223 rifle for the purpose of eradicating foxes and rabbits, having regard to both the general requirement of genuine reason and the gloss that the .223 be capable of reasonable justification. [28] ‑ [30]
Mr Kashani says that s 11A does not say or imply that a person 'will not have a genuine reason for acquiring a firearm where the purpose for which the firearm is required is already catered for by another firearm or firearms' as SAT found. Mr Kashani specifically says that the test in s 11A(1) is satisfied if the requirements of s 11A(2) and s 11A(3) are met. Section 11A(2) only requires satisfaction of one of the reasons specified. Mr Kashani says that s 11A(3) is satisfied if the Commissioner is satisfied that the particular kind of firearm can be reasonably justified. Mr Kashani says that this does not permit the Commissioner or SAT, standing in his shoes, to take into account whether the purpose for which the firearm is required is already catered for by another firearm or firearms in the possession of the applicant.
The Commissioner's position is that it is a relevant matter for the decision maker to take into account in determining whether an applicant has a genuine reason for acquiring the firearm. The Commissioner's position is that it was a matter that could be taken into account in determining the ultimate question in s 11A(1) and he was not didactic as to which subsection it fell under. However, when I pressed counsel for the Commissioner, he submitted that his preferred view was that it arose under s 11A(3) but if not under that subsection, then it arose under s 11A(2).
In support of his submissions, the Commissioner referred to Re Brown; Ex parte Scudds (1995) 14 WAR 270. In that case the applicant who was already licensed to possess and use 16 firearms was refused licences for several more. He unsuccessfully appealed to a magistrate and then to the Full Court of this court. The magistrate had found that the applicant's reasons for wanting certain firearms which he wished to use rather than just collect, could be reasonably catered for, by one or more of the 16 firearms already licensed to him. The magistrate indicated that the applicant had no need for any extra firearms and, in effect, he had no good reason for acquiring or possessing any of the additional firearms. At that time s 11 of the Act relevantly said:
11.Subject to subsection (2) of this section, the Commissioner shall not grant a permit or issue a licence under this Act to a person if in his opinion -
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(c)that person does not have a good reason for acquiring or possessing the firearm or ammunition to which the application relates.
(2)For the purposes of this section, where the Commissioner is satisfied that a person -
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(b)reasonably requires that firearm for the purpose of destroying vermin on land used by him for agriculture,
that person shall be taken to have a good reason for acquiring or possessing a firearm or ammunition of a kind suitable to the circumstances.
The Full Court found that the discretion given to the licensing authority under the Act to refuse the grant of a licence was very wide. It found that the magistrate had not erred in his consideration of this matter and dismissed the appeal.
The Commissioner concedes that s 11 was then in very different terms to the present s 11A but says there are still similarities between the present s 11A(1) and the then s 11(c) and the present s 11A(2) and (3) and the then s 11(2)(b), although the Act then used the term 'good reason' as opposed to the current 'genuine reason'.
The Commissioner says that the fact that the Full Court did not accept that the magistrate erred in the application of that test by taking into account that the applicant was licensed for other firearms which could reasonably be used to destroy vermin on the applicant's property is an indication that there would be no error in SAT doing likewise under the present s 11A.
Brown is of limited assistance in this case because of the subsequent amendments to the Act. However, to a limited extent it is relevant to note that the Full Court held that a decision maker had a 'very wide' discretion to refuse the grant of a firearm's licence. It seems that the Full Court was prepared to read the phrase 'reasonably requires' as imputing a very wide discretion, including the power to take into account that the applicant had other firearms which could meet his requirements. On the face of it there is little to distinguish the then phrase 'reasonably requires' from the current provision of 'reasonably justified'.
The Commissioner also submits that it would be odd if the amendments which resulted in the current form of the Act, which he says were made for the purpose of making it more difficult to obtain a firearm licence, were interpreted as removing the power of a licensing authority to take into account that the applicant already had a licence to possess firearms which could satisfy the reason put forward by the applicant for acquiring a further licence. In support of this argument he pointed out that whilst the regulations made under s 11B prevented the grant of a licence unless a less powerful firearm was unsuitable or inadequate to perform the task for which the applicant wished to acquire the licence, it did not prevent the grant of a licence where the applicant had equally powerful firearms which could perform the task for which the applicant wished to acquire the licence.
In response Mr Kashani says that it is credible that in generally tightening up the requirements for obtaining firearms, especially more powerful and concealable firearms, Parliament had loosened the requirements for obtaining guns of the category that the .223 rifle was in.
It is clear on a reading of the whole of the second reading speech that, although the Firearms Amendment Bill addressed a wide range of matters relating to firearms, its specific purpose was to adopt resolutions about semi‑automatic firearms made by the Australasian Police Ministers Council, as a consequence of what has become known as the Port Arthur massacre. The Minister said:
All firearm owners who currently have category A or category B firearms, or who in the future may wish to purchase category A or, to a lesser extent, category B firearms, will be unaffected by the legislation (6789).
The .223 rifle is a category B firearm. On the basis of the material in the second reading speech, I am persuaded that Parliament did not intend by s 11A to make it more difficult for persons to obtain a licence for a category A or B firearm than it had been in the past. On the other hand, there is no indication in the parliamentary debates that Parliament intended to relax the requirements for the grant of a licence for such a firearm. Further, it was the intention of Parliament to make it more difficult for persons to obtain a licence for a category B firearm as opposed to a category A firearm.
Therefore, there is merit in the Commissioner's submission that as it is open to read s 11A(3) as permitting a decision maker to take into account the characteristics of an applicant's other firearms and to conclude that if those other firearms are adequate for the applicant's purpose, the particular kind of firearm the subject of the application is not reasonably justified, then that is the preferred construction of the subsection. SAT made no error in this regard.
I would grant leave to appeal on grounds 3A and 3B but dismiss the appeal on these grounds.
Ground 4A
I have quoted [28] of SAT's reasons which is relevant to ground 4A at [47].
SAT did not err in law in deciding that a person would not have a genuine reason for acquiring a firearm where the purpose for which the firearm was required was already catered for by another firearm or firearms [15]. This was a determination that was open to it.
However, I do not agree with SAT's interpretation of the genuine reason test in s 11A(1) and the reasonable justification requirement of it, in s 11A(3), that an applicant must 'demonstrate a particular existing need for the firearm being sought'.
For the reasons I have given, in determining whether the criterion in s 11A(1) has been met matters other than those referred to in s 11A(2) and (3) can not be taken into account. Apart from the added limitation imposed by s 11A(3), s 11A(2) sets out what will be a 'genuine reason' for the purposes of s 11A(1). Section 11A(2) requires certain matters to be proved but, relevantly, it does not require an applicant to show a need for the firearm the subject of the application. Whether there is a particular existing need to eradicate certain vermin on the relevant land may well be a matter relevant to whether the firearm 'is for use in hunting or shooting of a recreational nature on land' under s 11A(2)(c). However it is wrong to say that s 11A(2) requires an applicant to demonstrate a need for the firearm the subject of the application.
Section 11A(3) requires an applicant to show that the particular kind of firearm can be reasonably justified. Again, it may be relevant in determining that issue whether there is a need for that firearm to be used to exterminate vermin, but it is wrong to say that this is the statutory test to be applied or a requirement of the Act.
This does not mean that I accept Mr Kashani's submissions that s 11A does not permit a decision maker to take into account what is needed in a particular situation. As I have said, what is needed may be a relevant consideration even though it is not the ultimate issue to be determined. For example, the absence of a need for a particular firearm may bring into question whether the applicant has a reasonable justification for a particular kind of firearm or whether he intends to use the firearm the subject of the application for the purposes listed in s 11A(2)(c).
I am also of the view that SAT erred in law in concluding that the Act requires an applicant to demonstrate an 'existing need'. There may be circumstances in which s 11A(2)(c) and s 11A(3) may be satisfied because the evidence established that certain animals were likely to be on a property within a certain period of time even though they did not then exist on it. SAT put the legal and factual hurdle too high when it said that the Act required proof of an 'existing need'. Again, that is not to say that the presence of or absence of animals on a property are not relevant considerations under either or both s 11A(2)(c) and s 11A(3).
I am left with the view that SAT held, what may be a relevant factual consideration, to be a legal requirement and that this error may have influenced the result of the review.
For these reasons I would allow leave to appeal on ground 4A and grant the appeal on this ground.
Ground 5A
Mr Kashani submits that SAT erred in law in not accepting the evidence of Mr Wilmot that a .223 rifle was appropriate for his (Mr Kashani's) purpose and was the preferable firearm for him to use for that purpose. Mr Kashani says that SAT also ignored Sergeant McComish's evidence that the .223 rifle was an appropriate firearm for his (Mr Kashani's) purpose. Mr Kashani says there was no evidence to the contrary and, thus, SAT's decision that he did not have a 'genuine reason' to acquire the .223 rifle was a decision that no reasonable tribunal could make.
Sergeant McComish testified that a .223 firearm, in his experience, is a suitable calibre for the humane destruction of wild dogs and foxes (SAT ts 18). However, he also gave evidence that, although he was not 'an expert in the field', a .270 firearm 'would kill quite humanely wild dogs and foxes'. In his view there would be an even stronger objection to an application for that firearm because of its higher performance and ballistic capability (SAT ts 36). Of course, Mr Kashani already held a licence for the .270 rifle.
Mr Wilmot's evidence was that both .270 and .223 calibre rifles were capable of eradicating foxes effectively; although out of the two he would use a .223 (SAT ts 50). He considered the .270 to be less desirable because it was too large a calibre. He said that under a distance of 50 m, a .22 rifle would be capable of killing dogs and foxes but that over that distance it may not be so humane because it may wound but not kill the animal (SAT ts 52).
Mr Kashani gave evidence that his particular reason and purpose for wanting a licence for a .223 firearm was to 'be able to respond to and deal with the presence of wild dogs and/or foxes' (Mr Kashani's witness statement, 22 February 2010).
Mr Kashani gave evidence that he had a .22 rifle since he moved onto his property in Toodyay (SAT ts 42). It was only when he saw two foxes in 2008 that he obtained a licence for a .270 calibre firearm. He said that since then he had probably shot two foxes with the .270 rifle and had not seen any wild dogs on his property (SAT ts 43). He said that if wild dogs were a menace to wildlife and poultry on his property then he needed a means to eradicate them; whether that happened to be at anytime in the future (SAT ts 44). He implied that he used the .22 calibre firearm to shoot at targets and rabbits. The implication was that there was no difficulty with shooting rabbits with that firearm (SAT ts 45).
In order to succeed on this ground, Mr Kashani must establish that there was no material before SAT upon which it could come to its conclusion. It is apparent to me from considering the above evidence that Mr Kashani has failed to make out this ground.
Mr Kashani's submissions concentrate on the proposition that the evidence was all to the effect that a .223 rifle was appropriate for shooting wild dogs. However this was not the ultimate question for SAT. In determining whether Mr Kashani had met the criterion in s 11A(1) SAT was entitled to take into account evidence to the effect that the .223 rifle was suitable for Mr Kashani's stated purpose and was more suitable than the .270 rifle. It was also entitled to take into account, as it did, the evidence from Mr Wilmot, Sergeant McComish and Mr Kashani to the effect that the .270 rifle was capable of meeting that stated purpose.
I would not grant leave to appeal on ground 5A.
Ground 5B
Mr Kashani complains that he was denied procedural fairness because SAT took into account that he could use the .22 rifle and the .270 rifle, for which he was already licensed, in combination when engaged in recreational shooting or hunting. He says that he was not given an opportunity to be heard on this proposition as it was only raised for the first time in SAT's reasons.
In SAT's reasons, it said that the .22 rifle and the .270 rifle 'represent an effective culling method over all distances'. It said that the effect of Mr Wilmot's evidence was that the effective eradication of foxes and rabbits was possible by the combined use of those two firearms [34].
Whilst the Commissioner's statement did not specifically say that he objected to the grant of the licence because the .22 calibre rifle and the .270 calibre rifle could be used 'in combination', it is apparent from the cross‑examination of Mr Kashani and Mr Wilmot that the Commissioner's position was that those two firearms were sufficient to meet Mr Kashani's desire to be able to humanely kill any foxes or wild dogs on his property. Further, the Commissioner's delegate's letter of 3 November 2009 to Mr Kashani said that one of the bases of the decision to refuse the application was that the firearms already in Mr Kashani's possession appeared suitable for the vermin present on the nominated property.
Given the matters raised in Mr Kashani's response and given his knowledge of the reasons why the application had been refused, it seems to me that he had ample opportunity to give evidence as to why the firearms already in his possession were not suitable either alone or in combination to effectively deal with any vermin on his property.
Mr Kashani says that he was not given the opportunity to make submissions and produce evidence on the practicality of using those firearms in combination. For the reasons given above, I disagree. Further, on the basis of the evidence which supported SAT's finding that there was no existing problem on the property with wild dogs and/or foxes, the evidence of difficulty in using the two existing firearms in combination would have been unlikely to have been of much weight in the decision making process.
I would not grant leave to appeal on ground 5B.
Ground 6
For the purpose of s 11B, the .223 rifle was prescribed by the Regulations sch 3 to be a category B firearm. SAT correctly stated that the effect of s 11B and sch 3 was that in order for Mr Kashani to demonstrate a 'genuine need' for the purposes of s 11B, he had to show that a category A firearm 'would be inadequate or unsuitable for the purpose for which the .223 is required' [31]. However, when SAT applied that test it said:
The test I must apply, in the context of the s 11B, requirement of genuine need, is whether Mr Kashani's current Category A type firearms are not suitable. Whilst I accept that they are not best firearms for rabbit and fox eradication, they are sufficient to satisfy a description of suitability for that purpose. In the circumstances, Mr Kashani has failed to satisfy the onus he carries of establishing that his Category A firearms are not suitable. He therefore fails to establish a genuine need for the .223 license sought. The .22 is a rim fire rifle, and as such is a Category A firearm. It was not made plain before me whether the .270 rifle is a Category A firearm. If it is, Mr Kashani is unable to meet the genuine need test, based on Mr Wilmot's evidence that the two firearms represent an effective culling method over all distances. If it is not, Mr Kashani may well be able to satisfy the genuine need test, given the effect of Mr Wilmot's evidence that effective eradication of foxes and rabbits was possible by the combined use of the .22 and .270. However, Mr Kashani's failure to satisfy the genuine reason test remains fatal to his application. [34]
The parties agree that the .270 rifle is a category B firearm. Apparently, there was a document in evidence in SAT which proved that fact but it was not brought to the attention of SAT. Thus, SAT's determination in the first half of [34] that, on the assumption that both the .22 rifle and the .270 rifle were category A firearms, Mr Kashani had failed to satisfy the genuine need test in s 11B was based on an incorrect view of the facts.
In the second half of [34] SAT considered what its finding would be if the .270 rifle was not a category A firearm. This was correct as a matter of fact. It did not make a final determination on that issue but said that Mr Kashani 'may well be able to satisfy the genuine need test' if that was the case. SAT then made the point that Mr Kashani would still fail the 'genuine reason' test.
Ground 6 as drafted cannot succeed as SAT's decision in [34] that Mr Kashani failed the 'genuine need' test in s 11B if both the .22 rifle and the .270 rifle were category A firearms, was obviously a provisional decision if that were true as a matter of fact. In the alternative, if the .270 rifle was not a category A firearm, SAT's comment was that Mr Kashani may well be able to satisfy the 'genuine need' test. I assume that SAT would normally have come to a final determination of that issue but it appears that it thought that it was unnecessary to do so as Mr Kashani failed the 'genuine reason' test, in any event.
Mr Kashani submits that I should find that he satisfies both the 'genuine reason' test in s 11A and the 'genuine need' test in s 11B, allow the appeal and grant him the licence. I am not prepared to act as a fact‑finder in this matter and in view of my decision with respect to ground 4A the matter will have to be remitted back to SAT.
I would refuse leave to appeal on ground 6.
Ground 7
Ground 7 appears to hark back to the issues raised in ground 6. It is now clear that SAT's provisional finding that Mr Kashani's category A firearms were suitable for his purpose, was based on an incorrect assumption that the .270 rifle was a category A firearm. Once that error is exposed, that determination falls away and SAT's alternative comment that if the .270 rifle is not a category A firearm, Mr Kashani may well be able to meet the 'genuine need' test in s 11B becomes operative. For the reasons that I have given in respect of ground 6, whether Mr Kashani meets the 'genuine need' test in s 11B ought to be the subject of a final determination by SAT when the matter is remitted to it.
Conclusion
In summary, I would grant leave to appeal in respect of grounds 3A, 3B and 4A, refuse leave to appeal in respect of all other grounds and allow the appeal in respect of ground 4A only. The matter ought to be remitted to SAT to be heard according to law. I will hear the parties as to whether this should be by the same or a differently constituted tribunal.
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