Kay v Game Council of New South Wales

[2008] NSWADT 290

CITATION:	Kay v Game Council of New South Wales [2008] NSWADT 290
DIVISION:	General Division
PARTIES:	APPLICANT Owen Kay RESPONDENT Game Council of New South Wales
FILE NUMBER:	083248
HEARING DATES:	20 October 2008
SUBMISSIONS CLOSED:	20 October 2008
DATE OF DECISION:	27 October 2008
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Cancellation of game hunting licence - fit and proper person
LEGISLATION CITED:	Administrative Decisions Tribunal (General) Regulation 2004 Administrative Decisions Tribunal Act 1997 Firearms Act 1996 Game and Feral Animal Control Act 2002 Game and Feral Animal Control Regulation 2004
CASES CITED:	Frugtniet and Anor v Commissioner for Fair Trading; Commissioner for Fair Trading v Travel Action Pty Ltd and Anor (GD) [2004] NSWADTAP 12 (16 April 2004) Young Taek Chong v Tomazin (1994) ASC 56-283
REPRESENTATION:	APPLICANT T Morgan, solicitor RESPONDENT B Boyle, agent
ORDERS:	The decision of the Game Council to cancel Mr Kay’s game hunting licence is set aside.

Introduction

1 On 28 July 2008, the Game Council of NSW cancelled Mr Kay’s game hunting licence. Mr Kay has applied to the Tribunal for a review of that decision. This is the first time that an application under the Game and Feral Animal Control Act 2002 (GFAC Act) has been before the Tribunal.

2 On 15 February 2008, the Game Council issued Mr Kay with a 3 year restricted game hunting licence which entitled him to use a firearm, bow, animal or other hunting device to capture or kill certain animals on public as well as private land: GFAC Act, section 4 and 15. This licence was a “standard” licence, as opposed to other categories of licence such as a hunting guide licence. Previously, Mr Kay had held a hunting guide licence which allowed him to engage in the hunting of game animals as a hunting guide: Game and Feral Animal Control Regulation 2004 (GFAC Regulation), clause 10. Mr Kay also had a firearms licence, but on 7 January 2008 he was convicted in the Local Court of “Not Keep Firearms Safely” and his firearms licence was subsequently cancelled. Following that conviction, the Game Council cancelled Mr Kay’s game hunting licence. As Mr Kay no longer has a firearms licence he would not be able to hunt using a firearm even if his licence were restored.

3 Mr Kay did not provide any documentary evidence of the exact nature or circumstances of the conviction but said that he pleaded guilty to a breach of section 40(1)(b) of the Firearms Act 1996. He said the conviction was based on a finding that the safe in which his firearms were stored was not fixed to the floor or wall. Mr Boyle, representing the Game Council, did not challenge this evidence and I accept it. Mr Kay was not legally represented before the Local Court but since that time he has received advice that if his safe weighed 150 kilograms or more, it did not have to be fixed. Mr Kay obtained independent evidence that his safe weighs 150 kilograms. Mr Kay’s solicitor, Mr Morgan, submitted that had Mr Kay been legally represented before the Local Court the weight of the safe would have been in evidence and, if accepted, Mr Kay would not have been convicted.

Issues

4 The Tribunal’s role is to determine whether the decision to cancel Mr Kay’s licence is the “correct and preferable” decision: Administrative Decisions Tribunal Act 1997 (ADT Act), section 63. The Game Council cancelled Mr Kay’s licence pursuant to section 29(2) of the GFAC Act which states that:

The Game Council is to cancel a game hunting licence if the holder is not qualified, or is no longer qualified, to hold the licence.

5 The issues are:

1. whether section 29(2) is a mandatory or a discretionary provision;

2. whether being a “fit and proper person” is one of the qualifications referred to in section 29(2);

3. if so, whether Mr Kay is a fit and proper person to hold a game hunting licence.

6 A preliminary issue is whether the Tribunal has jurisdiction in relation to the decision to cancel the licence as an internal review has not been conducted.

No internal review

A decision of the Game Council to cancel a licence is a “reviewable decision”: GFAC Act, section 31; ADT Act, section 38. The Game Council wrote to Mr Kay on 20 June 2008 telling him that it had been brought to their attention that his firearms licence had been cancelled and asking him to provide information as to the circumstances of the cancellation so that the Game Council could consider what action to take. Mr Kay’s solicitor replied on his behalf on 8 July 2008. By letter dated 28 July 2008 the Council decided to cancel the licence. Mr Kay did not apply for an internal review of this decision. Instead, he applied to the Tribunal for a review of the decision on 19 August 2008.

7 The ADT Act provides that a person may apply to the Tribunal for a review of a “reviewable decision” if, among other things, “an internal review is taken to have been finalised under section 53(9).” An internal review is taken to have been finalised if either the applicant is notified of the outcome of the internal review or 21 days has passed since the applicant applied for the internal review. However, even if an internal review is not taken to have been finalised, the Tribunal may allow a person to apply for a review a decision if “it is necessary for the Tribunal to deal with the application in order to protect the person’s interests and the application to the Tribunal was made within a reasonable time following the decision of the administrator concerned”: ADT Act, section 55(2)(c). Because the Game Council itself made the decision, there is no other suitably qualified person or body, to internally review that decision. In cases of this kind, other bodies have requested that their decisions be included in Reg 11 of the Administrative Decisions Tribunal (General) Regulation 2004 which excludes certain reviewable decisions from the operation of section 53 of the ADT Act. I suggested to Mr Boyle, appearing for the Game Council, that he take this course of action. In the meantime, I am satisfied, pursuant to section 55(2)(c) of the ADT Act that it is necessary for the Tribunal to deal with the application in order to protect Mr Kay’s interests. I am also satisfied that the application to the Tribunal was made within a reasonable time.

Legislative Scheme

8 Objects. The objects of the GFAC Act are:

(a) to provide for the effective management of introduced species of game animals, and

(b) to promote responsible and orderly hunting of those game animals on public and private land and of certain pest animals on public land.

9 Licensing scheme. It is the second object with which the Game Council is concerned when licensing the hunting of game animals. In general, a person must be licensed in order to hunt game animals. To “hunt” means to “search for, pursue, trail, stalk or drive out an animal in order to capture or kill the animal including using a firearm, bow, animal or other hunting device to capture or kill the animal, but not including laying or using poison for that purpose”: GFAC Act, section 4. A licence is needed in order to hunt wild deer, California quail, pheasant, partridge, peafowl and turkey, whether on public or private land. A licence is also needed to hunt wild pig, dog (other than dingo), cat, goat, rabbit, hare and fox on public land. The GFAC Act establishes the Game Council which, among other things, has the function of administering the licensing system: GFAC Act, section 9(1)(b). In exercising that and other functions the Council must have regard to public safety: section 9(2). The licensing provisions are contained in Part 3 of the GFAC Act. That Part includes provisions relating to: the classes of licence (general and restricted); exemptions from licensing; special qualifications for restricted game licences; and the granting, duration, suspension and cancellation of licences.

10 Restricted licences. Mr Kay held a restricted licence which meant that he was authorised to hunt game animals on public as well as private land: GFAC Act, section 15(2). Special qualifications apply to this kind of licence: the applicant must be “a member of a hunting club, or organisation, approved by the Game Council” and must have undertaken “adequate training”: GFAC Act, section 19.

11 Granting licences. Under section 21(3), the Game Council must refuse to grant a licence:

(a) if the person has been found guilty of an offence in New South Wales or elsewhere (in the previous 10 years) involving cruelty or harm to animals, personal violence, damage to property or unlawful entry into land, or

(b) if the person has been found guilty of an offence under section 55, or

(c) if the person is not a fit and proper person to hold the licence, or

(d) in such other circumstances as are prescribed by the regulations.

12 The Game Council’s submission was that section 21(3)(c) – being a fit and proper person to hold the licence - is a qualification for a licence. If a person ceases to be a fit and proper person, they are no longer qualified and their licence must be cancelled: section 29(2).

13 Suspension or cancellation of licences. Section 29 of the GFAC Act sets out the circumstances in which the Game Council may suspend or cancel a licence. The provision relied on by the Game Council is in italics:

(1) The Game Council may suspend or cancel a game hunting licence as provided by this section.

(2) The Game Council is to cancel a game hunting licence if the holder is not qualified, or is no longer qualified, to hold the licence.

(3) The Game Council is to suspend or cancel a game hunting licence:

(a) if the holder contravenes any mandatory provision of the code of practice referred to in section 24, or

(b) if the holder is found guilty of an offence in New South Wales or elsewhere involving cruelty to animals, or

(c) if the holder has been found guilty of an offence under section 55.

(4) The Game Council may suspend or cancel a game hunting licence:

(a) if the holder contravenes a condition of the licence, or

(b) if the holder is found guilty of an offence in New South Wales or elsewhere involving harm to animals, personal violence, damage to property or unlawful entry into land, or

(c) in such other circumstances as are prescribed by the regulations.

(5) The Game Council may, if it cancels a game hunting licence, disqualify the person who held the licence from holding or obtaining such a licence for a period specified by the Game Council.

(6) The Game Council may at any time remove the suspension of a game hunting licence (except a suspension imposed by a court). refuse

14 Code of Practice. Under section 24 of the GFAC Act, the Minister is to approve a code of practice for holders of game licences. The code of practice is contained in Schedule 1 to the GFAC Regulation. Two of the mandatory provisions of the code of practice relevant to these proceedings are as follows:

1 Awareness of relevant legislation

It is the responsibility of the holder of a game hunting licence to be aware of and comply with all relevant provisions of legislation relating to hunting, animal welfare and the use of firearms.

2 Safe handling of firearms

Where firearms are used, the rules for safe handling set out in the NSW Firearms Safety Awareness Handbook published by or under the authority of the Commissioner of Police must be complied with at all times.

15 Compliance with the mandatory provision of the code of practice is a condition of a game hunting licence. Furthermore, if a holder of a licence contravenes a mandatory provision of the code of practice the Game Council “is to suspend or cancel” the game hunting licence: GFAC Act, section 29(3)(a).

Submission

16 The Game Council did not submit that it was entitled to cancel Mr Kay’s licence under section 29(3)(a). Rather, it cancelled Mr Kay’s licence under section 29(2) submitting that he was “no longer qualified” to hold the licence. The Council’s submission was based on the following chain of reasoning: to be “qualified” to hold a licence, a person has to be a “fit and proper person to hold the licence” (section 21(3)(b)) and to be a fit and proper person to hold a licence a person has to comply with the mandatory provisions of the code of practice. One of the provisions of the code was that, “It is the responsibility of the holder of a game hunting licence to be aware of and comply with all relevant provisions of the legislation relating to hunting, animal welfare and the use of firearms.” One of those provisions is section 40 of the Firearms Act 1996:

(1) The holder of a category A or category B licence must comply with the following requirements in respect of any firearm to which the licence applies:

(a) when any such firearm is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable,

(b) if such a receptacle weighs less than 150 kilograms when empty, it must be fixed in order to prevent its easy removal,

(c) the locks of such a receptacle must be of solid metal and be of a type approved by the Commissioner,

(d) any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the receptacle containing any such firearm,

(e) such other requirements relating to security and safe storage as may be prescribed by the regulations.

Maximum penalty: 20 penalty units or imprisonment for 12 months, or both.

(2) A licensee does not have to comply with the requirements of this section if the licensee satisfies the Commissioner that the licensee has provided alternative arrangements for the storage of firearms in the licensee’s possession that are of a standard not less than the requirements set out in this section.

17 According to the Council, either Mr Kay was unaware of the provision relating to the weight of safes or, if the safe weighed less than 150 kilograms, he did not comply with the safe storage provisions of the Firearms Act 1996. Either way, he was in breach of the code and cannot be regarded as a fit and proper person to hold a licence.

18 Mr Kay’s solicitor, Mr Morgan, submitted that the fact that section 29(1) uses the word “may” means that each provision of section 29 is discretionary despite the use of the words “is to” in sections 29(2) and (3). Since Mr Kay’s conviction resulted from a lack of understanding on his part as to the circumstances in which a safe needed to be fixed to the floor or wall, he should not be regarded as unfit to hold a licence as a result of that conviction. Furthermore, he has worked as a hunting guide, without incident, and would like to apply for such a licence again. Meanwhile he should not be deprived of a standard hunting licence as he can use legal methods, other than firearms, to hunt game animals.

Is section 29(2) a mandatory or discretionary provision?

19 Contrary to Mr Morgan’s submission about the effect of section 29(1), we interpret the wording in section 29(2) (the Council is to cancel) to mean that in the circumstances listed in that provision it is mandatory for the Council to cancel the person’s licence. The general words in section 29(1) do not derogate from the specific provisions in section 29(2), (3) and (4). Section 29(2) may be contrasted with section 29(3) which sets out the circumstances in which the Council is to cancel or suspend a person’s licence. The option of suspending the licence suggests that the circumstances listed in section 29(3) are less fundamental to the holding of a licence than those listed in section 29(2). Finally, section 29(4) which uses the word “may” gives the Council a discretion to suspend or cancel a licence in certain circumstances. The availability of a discretion suggests that the circumstances listed in that provision are less fundamental than those listed in section 29(3). For example, while being found guilty of an offence involving cruelty to animals will result in mandatory cancellation or suspension, offences relating to harming animals, personal violence, damage to property or unlawful entry onto land will allow the Council to decide whether or not it should suspend or cancel a licence. Not being qualified, or no longer being qualified, to hold the licence is regarded as the most fundamental element of the licensing scheme because it leads to mandatory cancellation.

Whether being a “fit and proper person” is one of the qualifications referred to in s 29(2)

20 Neither party submitted that fitness and propriety was not a qualification for the purposes of section 29(2), but a finding on that question still needs to be made. The ordinary meaning of the word “qualified” is “possessed of qualities or accomplishments which fit one for some function or office, having qualifications required by law or custom”: The Macquarie Dictionary, Third Edition, The Macquarie Library. There is a reference to “qualifications” in the GFAC Act in section 19 (Special Qualifications for restricted game hunting licence). That provision requires a person to be a member of a hunting club or organisation approved by the Game Council before being entitled to a licence. Being a member of such an organisation is a “qualification” provided for the GFAC Act. In accordance with section 29(2) the Game Council must cancel a person’s restricted licence if that person ceases to be a member of such an organisation. The GFAC Act also empowers the making of regulations in relation to game hunting licences. In particular, regulations may be made in relation to “the eligibility of applicants (including age, qualifications, knowledge, experience and training)”: section 32. The Regulations make provisions in relation to the age of licensees in clause 13. Those requirements would come within the meaning of qualifications in section 29(2).

21 Despite the fact that fitness and propriety is identified as a “qualification” in the legislation, it is a quality that is fundamental for licence holders. It is not listed elsewhere in section 29 as a basis for suspending or cancelling a person’s licence. In my view it is one of the qualifications referred to in section 29(2). The Game Council had power to suspend or cancel Mr Kay’s licence under section 29(2) but should only have done so if he was no longer a fit and proper person to hold the licence.

Is Mr Kay a fit and proper person to hold a game hunting licence?

22 The second step in Mr Boyle’s reasoning was that to be a fit and proper person to hold a licence a person had to comply with the mandatory provisions of the code of practice. In our view, non-compliance with the code of practice does not automatically mean that a person is not a fit and proper person to be the holder of a licence. Fitness and propriety must be assessed taking into account all the relevant circumstances, not just the fact that a person has been convicted of an offence. In Frugtniet and Anor v Commissioner for Fair Trading; Commissioner for Fair Trading v Travel Action Pty Ltd and Anor (GD) [2004] NSWADTAP 12 (16 April 2004) at [209] the Appeal Panel summarised the principles involved in assessing fitness and propriety, derived from the Commercial Tribunal’s decision in Young Taek Chong v Tomazin (1994) ASC 56-283 at 58:

. . . the question must be determined with reference to the particular purposes of the regulatory regime involved;

. . . account must be taken of the minimum standards of the profession or occupation being regulated;

. . . matters such as ‘character’, ‘suitability’, ‘integrity’ and ‘trustworthiness’ – indeed, ‘any aspect of fitness or propriety that is relevant to the public interest’ – must be considered;

. . . that while an isolated act may suffice to show lack of fitness and propriety, this will not necessarily be the case, and ‘deliberate prolonged conduct or a course of conduct’ stands on a different footing; and

finally that ‘the evaluation of fitness involves a wide discretion’.

23 Purpose of regulatory scheme. As we have said, the purpose of the regulatory regime is to promote responsible and orderly hunting of game animals on public and private land. The word “hunt” includes capturing or killing an animal by means other than firearms. A “bow, animal or other hunting device” excluding poison, may be used. The Council is required to exercise its functions having regard to public safety.

24 Minimum standards. The minimum standards of the holders of gaming licences are set out in the code of practice and include awareness of and compliance with all relevant provisions of legislation relating to hunting, animal welfare and the use of firearms. Mr Boyle’s submission was either that Mr Kay was not aware of the fact that a safe weighing 150 kilograms or more did not have to be fixed to the floor or wall or, if his safe weighed less than that amount, he has not complied with the code of practice. In either case, Mr Kay’s lack of knowledge or non-compliance was not of the most serious kind. The safe met the standards in other respects.

25 Character, suitability and integrity. There was no adverse evidence as to Mr Kay’s character, integrity or trustworthiness.

26 Isolated act. The conviction for failure to keep firearms safe was a single isolated act rather than a deliberate and prolonged course of conduct.

27 Conclusion. Mr Kay was convicted of not keeping his firearms safely because the safe in which his firearms were held was not fixed to the floor or a wall. That breach was not of the most serious kind and may have been avoided had Mr Kay produced evidence to the Local Court that his safe weighed 150 kilograms or more. While it is of critical importance that holders of game hunting licences who use firearms to hunt, abide by the storage standards, Mr Kay is no longer able to hunt with a firearm because he does not have a firearms licence. In those circumstances and given that Mr Kay’s conviction was for a single, relatively minor breach, I am satisfied that he is a fit and proper person to hold a restricted game hunting licence. The preferable decision would have been not to cancel Mr Kay’s licence.

Order

The decision of the Game Council to cancel Mr Kay’s game hunting licence is set aside.