Larsson v Commissioner of Police, NSW Police Force

[2018] NSWCATAD 149

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Larsson v Commissioner of Police, NSW Police Force [2018] NSWCATAD 149
Hearing dates:	14 and 15 June 2018
Date of orders:	16 July 2018
Decision date:	16 July 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Ludlow, Senior Member
Decision:	1. The decision under review is affirmed.
Catchwords:	ADMINISTRATIVE LAW – refusal of permit to possess or use a prohibited weapon (silencer) - genuine reason – recreational/sporting activity - applicant must demonstrate that the activity requires the possession or use of the weapon – whether use of a silencer is required for the activity on the basis of hearing loss or other grounds - whether there is a duty to apply the Work Health and Safety Act 2011 when determining an application for a permit.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Firearms Act 1989 (NSW) Interpretation Act 1987 (NSW) Weapons Prohibition Act 1998 (NSW) Weapons Prohibition Regulation 2017 (NSW) Work Health and Safety Act 2011 (NSW)
Cases Cited:	Commissioner of Police, NSW Police Force v Allen [2016] NSWCATAP 148 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR297; 35 ALR 151 Marando v Commissioner of Police, NSW Police Force [2018] NSWCATAD 29 Mine Subsidence Board v Wambo Coal Pty Ltd [2007] NSWCA 137; (2007) 154 LGERA 60 Osborne v Commissioner of Police, New South Wales Police Service (GD) [2000] NSWADTAP 10.
Texts Cited:	Macquarie Dictionary
Category:	Principal judgment
Parties:	Stephen Frank Larsson (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Counsel: Mr H. El Hage (Respondent)   Solicitors: Crown Solicitor’s Office (Respondent)
File Number(s):	2017/00378299

REASONS FOR DECISION

Background

1. On 11 May 2017 the applicant lodged an application for a Prohibited Weapons permit under the Weapons Prohibition Act 1998 (the WP Act) to authorise possession and use of a silencer for firearms (also referred to as a suppressor).

2. The application was refused by the respondent on the grounds that the applicant had not demonstrated a genuine reason. The applicant applied for an internal review of this decision.

3. On 20 November 2017 the respondent’s delegate confirmed the decision to refuse the permit application. The applicant has sought review of this decision in the Tribunal.

Relevant facts

4. The following facts were not in dispute:

1. The applicant has held a category AB firearms licence since 1998.

2. That licence states:

“Genuine reasons for holding this licence:

AB – REC HUNTING/VERMIN CONTROL

AB – TARGET SHOOTING

3. He has no criminal convictions, no concerns have been raised concerning his good character and no breach has ever been found by the respondent during audits of his firearms storage.

The legislation

5. Section 3 of the WP Act sets out its principles and objects:

“3 Principles and objects of Act

(1) The underlying principles of this Act are:

(a) to confirm that the possession and use of prohibited weapons is a privilege that is conditional on the overriding need to ensure public safety, and

(b) to improve public safety by imposing strict controls on the possession and use of prohibited weapons.

(2) The specific objects of this Act are as follows:

(a) to require each person who possesses or uses a prohibited weapon under the authority of a permit to have a genuine reason for possessing or using the weapon,

(b) to provide strict requirements that must be satisfied in relation to the possession and use of prohibited weapons,

(c) to provide an amnesty period to enable the surrender of prohibited weapons.”

6. A “prohibited weapon” means anything described in Sch 1 to the WP Act (s (4)(1)). Clause 4(3) of Sch 1 lists under “Miscellaneous articles”:

“(3) Silencers or any other device designed for attachment to a firearm for the purpose of muffling, reducing or stopping the noise created by firing the firearm.”

7. Section 9 of the WP Act provides that an application for a permit under the Act must be made to the Commissioner in an approved manner and must include or be accompanied by such information and particulars as may be prescribed by the regulations. On receiving an application for a permit, the Commissioner may carry out such investigations and inquiries as the Commissioner considers necessary to enable the Commissioner to consider the application properly.

8. Section 10(4) provides that the Commissioner may refuse to issue a permit if the Commissioner considers that the issue of the permit would be contrary to the public interest.

9. Section 11 provides:

“11 Genuine reason

(1) The Commissioner must not issue a permit authorising the possession or use of a prohibited weapon unless the applicant has, in the opinion of the Commissioner, a genuine reason for possessing or using the weapon.

(2) Without limiting the reasons that the Commissioner may be satisfied are genuine reasons, the Commissioner may determine that an applicant has a genuine reason for possessing or using a prohibited weapon if the applicant:

(a) states that he or she intends to possess or use the weapon:

(i) for any one or more of the reasons set out in the Table to this subsection, or

(ii) for any other reason prescribed by the regulations, and

(b) is able to produce evidence to the Commissioner that he or she satisfies the requirements (if any) specified in respect of any such reason.

Table

Reason: recreational/sporting purposes

The applicant must demonstrate that the recreational or sporting activity concerned requires the possession or use of the prohibited weapon for which the permit is sought.

Reason: historical re-enactment purposes

The applicant must be a current member of a historic or commemorative club or society approved by the Commissioner in accordance with the regulations and which conducts activities or events requiring the possession or use of the prohibited weapon for which the permit is sought.

Reason: business/employment purposes

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

Reason: film/TV/theatrical purposes

The applicant must demonstrate that the film, television or theatrical activity concerned requires the possession or use of the prohibited weapon for which the permit is sought.

Reason: weapons collection

The applicant must:

(a) be a current member of a collectors’ club or society approved by the Commissioner in accordance with the regulations, and

(b) demonstrate that the applicant’s weapons collection has a genuine commemorative, historical, thematic or financial value.

Reason: public museum purposes

The applicant must demonstrate that the public museum concerned is involved in the collection and display of prohibited weapons.

Reason: heirloom

The applicant must demonstrate that the applicant has inherited the prohibited weapon for which the permit is sought and that the weapon has a genuine sentimental value.

Reason: animal management

The applicant must be a veterinary practitioner (within the meaning of the Veterinary Practice Act 2003), or an organisation that has responsibilities for animal management, and demonstrate that it is necessary in the conduct of the applicant’s responsibilities to possess or use the prohibited weapon for which the permit is sought.

Reason: scientific purposes

The applicant must demonstrate that the prohibited weapon for which the permit is sought is required for legitimate scientific purposes.

(3) The possession or use of a prohibited weapon for personal protection, or for the protection of any other person, is not a genuine reason for the possession or use of the weapon. However, any such reason may constitute a genuine reason in the case of a prohibited weapon referred to in clause 4 (1) of Schedule 1 or in the case of a prohibited weapon that is of a kind prescribed by the regulations for the purposes of this subsection.

(4) Subsection (3) does not limit the reasons that the Commissioner may determine are not genuine reasons for the purposes of possessing or using a prohibited weapon.”

10. Clause 17 of the Weapons Prohibition Regulation 2017 provides:

“17 Sporting permit

(1) The Commissioner may, on application by a person, issue a prohibited weapons—sporting permit that authorises the person to possess and use a prohibited weapon to which the permit relates for the purposes of training or competing in a sport or recreation specified in the permit.

(2) The Commissioner must not issue a prohibited weapons—sporting permit unless the applicant produces evidence from an approved sporting organisation that verifies, to the Commissioner’s satisfaction, that the applicant needs to possess and use the prohibited weapon for which the permit is sought because the applicant’s ranking in the sport or recreation concerned requires the applicant to use the prohibited weapon to train or compete in the sport or recreation.”

11. Section 63 of the Administrative Decisions Review Act 1997 (ADR Act) provides that in determining the application for review of the respondent’s decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material, and any applicable written or unwritten law. For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the respondent.

The issues

12. The applicant made the following submissions in support of his application.

1. He has a genuine reason for possessing or using a silencer within the meaning of the Act. The applicant’s written submissions stated that his recreational hunting activity came under the genuine reason of recreational/sporting purposes which is listed in s 11. At the hearing, as I understood it, he also submitted that “recreational hunting/vermin control” as stated on his firearms licence was a genuine reason, or in the alternative, that in interpreting what is meant by “recreational/sporting purposes” in s 11, reference should be had to the Firearms Act 1989 and the activities authorised by that Act and which are on his firearms licence.

2. He requires the possession or use of the silencer in order to engage in the activity of recreational hunting:

1. to prevent and/or reduce any further personal hearing loss,

2. to reduce disturbance of stock animals and property owners in the vicinity, and

3. to make hunting of feral animals or pests more effective.

3. In dealing with an application under the WP Act the respondent has a duty to take into account the provisions of the Work Health and Safety Act 2011 (NSW) (“the WHS Act”) which is applied to the functions exercised by his delegate by virtue of the Police Act 1990. That duty would require the respondent to consider what is the safest or most effective method for protecting the applicant’s hearing loss.

13. The respondent submitted:

1. The applicant does not have a genuine reason for the permit.

2. The term “Recreational/sporting activity” in the WP Act should be interpreted as involving an element of competition.

3. If the applicant does have a genuine reason, there is an evidentiary burden upon the applicant to demonstrate that the recreational or sporting activity concerned requires the possession or use of the prohibited weapon, as specified in the Table to s 11 of the WP Act.

4. Recreational/sporting activity by the applicant does not require the use of a silencer.

5. The points raised by the applicant regarding the WHS Act are not relevant to the issues before the Tribunal and no such duty applies.

Whether recreational hunting/vermin control is a genuine reason

14. Pursuant to s 63 of the ADR Act and s 11(1) of the WP Act, I may not determine that the permit should be issued unless I am of the opinion that the applicant has a genuine reason for possessing or using the weapon.

15. The applicant gave evidence that he regularly engages in hunting, which involves shooting feral animals or pests on other persons’ rural land such as rabbits, wild pigs and foxes. He said that he did this for recreational purposes but that his hunting activity also assisted landholders by eradicating vermin. He relied on a 2016 report by the NSW Department of Primary Industries, “A systematic review of ground based shooting for pest animal control” which found that ground shooting can contribute to pest animal control. He does not perform this shooting for payment.

16. I find, based on the evidence that the applicant engages in the hunting of feral animals hunting several times a year for recreational enjoyment and that certain property owners may receive an incidental benefit, in the nature of disposal of feral animals, from his shooting activity on or near their land.

17. The applicant submits that since his firearms licence is stated to be for the genuine purpose (or purposes) of recreational hunting and vermin control under the Firearms Act, his activity of recreational hunting of pests and vermin should be recognised as a genuine reason under the WP Act. I am not prepared to accept that a genuine reason under the Firearms Act automatically translates to the WP Act as argued, as different criteria apply, namely that the Commissioner is satisfied that the applicant has a genuine reason for or possessing or using the prohibited weapon.

18. It is true that s 11 provides that the reasons which the Commissioner may be satisfied are genuine reasons are not limited to those set out in the table to s 11. The criteria for determining whether a reason which is not listed in the table is a genuine reason is not stated in the WP Act. However, it clearly must be “genuine”, which the Macquarie Dictionary defines as “being truly such; real; authentic;” or “sincere; free from pretence.”

19. The applicant tendered evidence in the form of the Department of Primary Industries report referred to above, to the effect that searching and killing efficiency could be enhanced by using silencers. The report referred to the range of thermal imaging equipment available to shooters and stated:

“When combined with sound suppressors and appropriate ammunition to reduce sonic disturbance, whole groups of animals can be shot at once.”

20. There was also evidence that the National Parks and Wildlife Service used silencers for increased effectiveness of ground shooting operations in certain circumstances.

21. However the applicant’s evidence regarding silencers is drawn from government agencies which engage in systematic animal control. He has not demonstrated that the disposal of vermin which he achieves or would achieve is anything more than an incidental by-product of his recreational hunting activity. Moreover, he has engaged in the activity for at least fifteen years without using a silencer. I am not satisfied that the proposed reason is a genuine reason under the WP Act.

Whether “recreational/sporting purposes” is a genuine reason for using or possessing a silencer

22. When he made his application, the applicant sought to rely on the genuine reason of “recreational/sporting purposes” in the table. This was the reason which was considered by the respondent. “Recreational” and “sporting” are not defined in the WP Act.

23. The ordinary meaning of “recreation” as defined by the Macquarie Dictionary, is “1. relaxation by means of some game, agreeable exercise, etc. 2. A pastime, game, exercise, etc giving relaxation and enjoyment.”

24. The respondent submitted, in reliance on cl 17 of the Regulation that “recreational/sporting purposes” should be read as a term which describes an activity with both a recreational and a sporting element, and should comprise some element of competition. The Regulation, being delegated legislation, is subordinate to the Act, however, and generally may not be used to assist in interpreting an Act (Mine Subsidence Board v Wambo Coal Pty Ltd [2007] NSWCA 137; (2007) 154 LGERA 60). There is nothing in the WP Act which indicates that the Regulation should be relied on in this way. Moreover this would be inconsistent with the wording in the table to s 11, which refers to “the recreational or sporting activity concerned.”

25. In my view, therefore, the applicant may rely on either a recreational or sporting activity in this case. In this particular case, for the reasons stated above, the applicant has established that he hunts for recreational purposes.

26. He must also demonstrate, however, that his recreational activity requires the possession or use of a silencer.

27. “Require” is not defined in the WP Act. It is a word of ordinary meaning and should be given its ordinary meaning unless the context indicates otherwise. The Macquarie Dictionary defines “require” as including: “1. To have need of; need … 4. To impose need or occasion for, make necessary or indispensable.”

28. There has been some consideration by the Tribunal of whether, when determining if the possession or use of the prohibited weapon is necessary or required, the Tribunal should consider this subjectively (with reference to the applicant) or objectively (with reference to the applicant).

29. The relevant cases are Commissioner of Police, NSW Police Force v Allen [2016] NSWCATAP 148, Marando v Commissioner of Police, NSW Police Force [2018] NSWCATAD 29 and Osborne v Commissioner of Police, New South Wales Police Service (GD) [2000] NSWADTAP 10.

30. From these cases I extrapolate that in making this determination, the Tribunal may take into account the applicant’s particular circumstances, but this may not extend to allowing the applicant to rely on a desire to conduct the activity in a particular way that requires a silencer, or a personal preference for using a silencer (Osborne, at [48], Allen at [18]), Marando at [73)].

Reducing hearing loss

31. The applicant submits that the primary reason that his activity requires the use of a silencer is to protect his hearing. In support of this submission he relied on:

1. His own evidence;

2. Medical evidence as to his hearing condition; and

3. Evidence concerning the effect of silencers on reducing damage to hearing.

32. The applicant said that he had a serious and debilitating hearing impairment in his left ear. The impairment involves tinnitus and some loss of hearing ability. This has a social impact, for example he had trouble hearing people speaking to him if there were other sources of noise in the vicinity. He also suffers from tinnitus which disrupts his sleep. He said that he wished to use a silencer when shooting in order to protect his hearing. When he was shooting, the muzzle of the gun was placed next to his left ear.

33. While he was aware of other hearing protection devices, namely ear muffs and ear plugs, he said that these were not as effective because:

1. Ear muffs were cumbersome, not suitable for crawling, climbing and were knocked off if he climbed through fences. They were uncomfortable in summer. He did wear ear muffs when shooting at a shooting range.

2. He wore prescription glasses and these broke the seal between the muff and his head.

3. Ear plugs had to be pushed in hard to be effective and were uncomfortable.

4. Silencers were more effective at reducing firearm noise.

34. Under cross-examination he conceded that he had not worn hearing protection when hunting over the past 15 years, except on rare occasions, and did not have personal experience of the discomfort which he gave evidence was caused by ear muffs when hunting, or of them being knocked off. He did admit to wearing hearing protection when shooting at a range.

35. The medical evidence concerning his hearing disability consisted of a report by Andrew Myles of the Macquarie University Speech and Hearing Clinic dated 12 August 2016. This stated:

“Mr Larsson reports occasional tinnitus and a recent hearing screening conducted elsewhere reportedly suggested a high frequency hearing loss in the left ear.

Audiological assessment

Pure tone audiometry results show Mr Larsson’s hearing is essentially within normal limits in the right ear. There is a mild to moderate high frequency (4000 -8000 Hz) sensorineural hearing loss on the left side.

Word recognition scores were good in both ears at conversational levels when presented in quiet.

Tympanometry results showed normal tympanometric peak and pressure, consistent with normal middle ear function bilaterally. Acoustic reflexes were elicited at normal sensation levels in both ears.

Conclusions

We have recommended Mr Larsson’s hearing be reassessed in 1-2 years, or earlier if concerns arise.”

36. Mr Larsson said he had not had his hearing reassessed since that date. Under cross-examination he maintained that his hearing loss was debilitating. He conceded that he had not had any difficulty hearing in the Tribunal but said he did have difficulty when there were a number of sources of noise.

37. The applicant relied on a number of articles and reports regarding safe noise levels in occupational contexts, hearing protectors and the use of silencers. Some of the information on which he sought to rely was excluded as it was in the nature of expert opinion and the makers of that opinion were not available; other information was excluded on the basis of relevance.

38. One document, “The reduction of gunshot noise and auditory risk through the use of firearm suppressors” by William J Murphy, Michael Stewart et al, Acoustical Society of America, May 22-27 2016, stated that firearms generate high level impulse noise which was hazardous to hearing. It described tests undertaken with four types of firearms and both supersonic and subsonic ammunition, and concluded that the effect of a silencer on the noise detected by the human ear behind the muzzle of the firearm was between 2 and 15dB reduction on sound power for a rifle. The applicant uses a rifle.

39. The applicant also relied on a number of Australian/New Zealand Standards.

1. Occupational Noise Management Part 0:Overview and general requirements AS/NZS 1269.0:2005

2. Occupational Noise Management Part 1: Measurement and assessment of noise immersion and exposure AS/NZS 1269.1:2005

These standards were admitted as evidence of their contents only as they dealt with noise management in the workplace. The following standards were admitted in full:

3. Acoustics: Hearing protectors (AS/NZS 1270:2002)

4. Occupational Noise Management Part 3: Hearing protector program (AS/NZS 1269.3: 2005).

AS/NZS 1270:2002 specifies the design, material and performance standards for hearing protectors. AS/NZS 1269.3:2005 is intended to guide people who supply, purchase or wear hearing protectors. The latter document states:

5. The actual attenuation achieved by hearing protectors will depend on factors including glasses, poor fitting and protective equipment, the size of head or ears and the size and shape of the ear canal.

6. Hot or humid conditions may mean ear plugs are more comfortable than ear muffs.

40. The Commissioner relied on the evidence of Dr Warwick Williams, a Senior Research Engineer at the National Acoustic Laboratories, where his work includes the measurement and assessment of noise in the workplace and during leisure activities.

41. A report by Dr Williams was tendered in which he stated:

“It is a common occurrence during regular shooters to be exposed to multiple sources of impulse noise, both wittingly and unwittingly….The use of a silencer (as defined by the WP Act) can only act to reduce the noise from the muzzle blast of the weapon. In practice this appears to be typically in the range of 10dB to an upper limit of around 15 or 30 dB. A silencer will not suppress the ‘sonic crack’, the loud noise produced by the motion of the projectile (bullet) through the air at speeds faster than the local speed of sound. The degree of attenuation, or reduction, of the muzzle blast by the silencer is a function of the weapon and/or the silencer design/ construction…

The use of a silencer may reduce the impulse noise level (ie the combined muzzle blast and sonic crack) from the firearm at the shooter’s ear and in particular directions from the firearm if the projectile (bullet) is subsonic and depending on the design of the silencer and the weapon. As stated in (5) above the attenuation may be in the order of 25dB. Estimating any actual reduction of possible risk of damage to hearing is not usually possible even in specific cases, as the risk of hearing damage is also a function of individual susceptibility.”

42. Dr Williams stated that under AS/NZS 1269.3:2005 ear-plugs and ear-muffs were required to be worn to minimise the risk of hearing loss when using firearms. He noted that a 2016 study on hazardous sound pressure levels generated by AR-15 rifles had found that while suppressors (silencers) “may not eliminate the need for HPD (hearing protection devices such as ear muffs) they are a significant and important improvement in reducing extremely dangerous unsuppressed exposure levels.”

43. He stated that if a person wears spectacles, the frames will interfere with the acoustic seal of ear-muffs, with the thinner the frame the less the interference. Tests showed that typical frames reduced the attenuation of sound by ear-muffs by around 5dB for continuous noise (firearms emit impulse noise).

44. He concluded that the use of a silencer alone was insufficient to significantly reduce the risk of hearing loss and tinnitus for an active shooter and currently a combination of ear plugs and ear muffs was recommended.

45. Senior Sergeant Edward Schey, of the Forensic Ballistic Investigation Section of the NSW Police Force, gave expert evidence. Senior Sergeant Schey was a forensic ballistics investigator and had examined and tested thousands of firearms and prohibited weapons.

46. His evidence was that a silencer is a device attached to the muzzle of a firearm which is designed to reduce the noise associated with the discharge of the ammunition in the firearm. It does this by suppressing, muffling or reducing the noise.

47. There is a vast array of designs of silencers and they can be commercially manufactured or home-made. They can be used on a range of firearms and their effectiveness is affected by factors such as the firearm type and ammunition type (whether subsonic or supersonic).

48. According to Senior Sergeant Schey, the sound associated with the discharge of a firearm comprises:

1. The pressure wave caused by rapid expansion of gases from burnt propellant exiting the gun barrel at over the speed of sound, causing a loud bang. Silencers are designed to reduce this sound by slowing down the gases and reducing the pressure wave.

2. The supersonic crack caused by a bullet exceeding the speed of sound. To eliminate this, subsonic ammunition can be used.

3. Flight noise – the sound of the bullet in flight. A silencer cannot eliminate this sound.

4. The mechanical action of the firearm such as the hammer dropping or firing pin being released. A silencer cannot eliminate this noise.

49. The degree to which a silencer reduces firearm noise is dependent on many variables such as silencer type, firearm type, calibre, ammunition type and load, barrel length and surroundings. An effective silencer may reduce the need to wear ear-muffs in certain situations but the amount of reduction could not be quantified.

50. He also noted, relying on a number of reports, that silencers do not affect the noise down range of the firearm, that is, a distance in front of the firearm, unless subsonic ammunition was used.

51. The applicant’s evidence was that he used both supersonic and subsonic ammunition.

52. Sergeant Schey stated that he normally wears spectacles and personally when discharging firearms he wears amplified electronic ear muffs which help protect against impact noise while allowing ambient noise nearby (such as people speaking) to be heard. He demonstrated their effect to me during the hearing and I was able to hear some ambient noise at a close distance.

53. Based on the evidence I find that the effect of a silencer in general will reduce the noise produced by a firearm at the shooter’s ear and from the muzzle if subsonic ammunition is used, but the actual extent of this effect will vary according to the design of the firearm and of the silencer. I also find that there are various effective hearing protection devices which are readily available such as earmuffs and earplugs and that Australian Standards provide detailed guidance on choosing and using these devices to reduce hearing loss.

54. The applicant has not demonstrated to the required standard that these devices are not effective for him when hunting. Nor has he demonstrated that they are impossible, or even difficult to use in that context.

55. Accordingly I am not satisfied that the applicant’s conduct of recreational hunting requires the use of a silencer within the meaning of s 11 of the WP Act.

Greater effectiveness in hunting

56. The applicant also sought to rely on evidence that using a silencer made hunting more effective because shooting was less likely to disturb other animals in the vicinity, enabling more animals to be shot.

57. The applicant’s evidence was that this resulted in the control of a greater number of feral animals. However, as this is a side effect of his recreational activity, and not an element of the activity itself, I conclude that the effectiveness of hunting is not relevant to hunting as a recreational activity. Accordingly the applicant cannot rely on this ground to show that his activity of recreational hunting requires the use or possession of a silencer.

Reduced disturbance of stock and persons in the vicinity

58. While there was evidence that persons and stock might be disturbed by shooting, there was no evidence that this made carrying out his recreational hunting impossible or even difficult. Accordingly the applicant cannot rely on this ground to show that his activity of recreational hunting requires the use or possession of a silencer.

Reduction of firearm recoil

59. There was some evidence that the use of suppressors reduces firearm recoil. The applicant claimed this made shooting heavy calibre firearms less unpleasant, more humane and accurate. However, even if I accept this evidence, for the reasons stated above this does not demonstrate a requirement for the use or possession of a silencer for the reason of recreational hunting.

Whether the recreational activity requires the possession or use of the prohibited weapon

60. In my view the applicant has not demonstrated, as he is required to do, that his recreational hunting activity requires the possession or use of a silencer. Notwithstanding this finding, I will consider his additional submission regarding the Work Health and Safety Act 2011.

The relevance of the Work Health and Safety Act 2011

61. The applicant submitted that in determining whether to grant a permit for a silencer, the Commissioner (and therefore the Tribunal) was required to comply with the duties imposed under the Work Health and Safety Act 2011 (the WHS Act). For the purposes of considering this issue, I have assumed that the Commissioner is a “person conducting a business or undertaking” (s 5 of the WHS Act) and administrative officers employed in the NSW Police Force are “workers” for the purposes of s 7 of that Act.

62. The object of the WHS Act is stated in s 3:

The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by:

(a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and

(b) providing for fair and effective workplace representation, consultation, co-operation and issue resolution in relation to work health and safety, and

(c) encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment, and

(d) promoting the provision of advice, information, education and training in relation to work health and safety, and

(e) securing compliance with this Act through effective and appropriate compliance and enforcement measures, and

(f) ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act, and

(g) providing a framework for continuous improvement and progressively higher standards of work health and safety, and

(h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction.

(2) In furthering subsection (1) (a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable.

63. The primary duty imposed on a person conducting a business or undertaking includes to ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking (s 19 of the WHS Act). Section 17 provides:

17 Management of risks

A duty imposed on a person to ensure health and safety requires the person:

(a) to eliminate risks to health and safety, so far as is reasonably practicable, and

(b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

64. The applicant’s submission is that the Commissioner’s determination of permit applications is part of the conduct of the “business or undertaking”. It would follow that in determining the application the Commissioner should ensure the applicant’s health and safety so far as reasonably practicable by eliminating or minimising risks.

65. There are a number of reasons why this submission must fail. Firstly, in interpreting the meaning of the WP Act, first and foremost I must consider the words and purpose of that Act, not another Act. As stated in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR297; 35 ALR 151, Mason and Wilson JJ stated:

“The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole.”

66. Secondly, it is clear from s 3 of the WHS Act that its scope does not extend to the making of administrative decisions under a statute. It is intended to protect workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant. The applicant is not a worker in the Commissioner’s “business or undertaking”, nor is he a person whose health may be put at risk from work carried out as part of the conduct of the business or undertaking.

67. Finally, s 33 of the Interpretation Act 1987 requires that when interpreting the meaning of an Act, I should prefer a construction that would promote the purpose or object underlying the Act to a construction that would not promote that purpose or object. In my view, an interpretation of the WP Act which incorporated the duties in the WHS Act would not further the principles of the WP Act, which include improving public safety by imposing strict controls on the possession and use of prohibited weapons; and providing strict requirements that must be satisfied in relation to the possession and use of prohibited weapons.

68. For these reasons, the applicant’s submission is not accepted.

Public interest

69. Given my findings above it is not necessary to consider whether the respondent has established that it would be contrary to the public interest to grant the permit sought.

Orders

1. The decision under review is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 16 July 2018